Priority and Liens. Each of the Borrower and each Guarantor hereby covenants, represents and warrants, as security for all Secured Obligations which may now or from time to time hereafter be owing by the Borrower and the Guarantor to the Secured Parties, and each hereby grants to the Administrative Agent for the sole benefit of the Secured Parties a valid, binding, enforceable and perfected Lien in the Collateral, including without limitation all currently owned or hereafter acquired property and assets of the Borrower and each Guarantor of any kind or nature, whether real or personal, tangible or intangible, wherever located, now owned or hereafter acquired or arising and all proceeds, products, rents and profits thereof, including, without limitation, all cash (including all cash collateral, wherever held), goods, accounts receivable, inventory, cash-in-advance deposits, real estate, machinery, equipment, vehicles, trademarks, trade names, licenses, causes of action, rights to payment including tax refund claims, insurance proceeds and commercial tort claims (including, subject to entry of the Final Order, actions for preferences, fraudulent conveyances, and other avoidance power claims and any recoveries under sections 506(c), 542, 544, 545, 547, 548, 549, 550, 552(b) and 553 of the Bankruptcy Code) and the proceeds, products, rents and profits of all of the foregoing (all of the foregoing, the "Collateral"), (i) subject only to the Carve-out, the Pre-petition Liens and to any other valid, binding, enforceable, perfected and unavoidable Liens of record (other than the Liens securing the obligations outstanding under the NUF Loan Documents) existing in the Collateral on the Petition Date and Liens permitted pursuant to clause (d) of Section 8.2 (Liens, Etc.) and (ii) senior and superior pursuant to section 364(d) of the Bankruptcy Code to the Liens securing the obligations outstanding under the NUF Loan Documents. Except as expressly set forth in the Bankruptcy Orders, the Liens granted in the Bankruptcy Orders and hereunder shall not be (i) subject to any Lien which is avoided and preserved for the benefit of the Borrower's and each Guarantor's estates under section 551 of the Bankruptcy Code or (ii) subordinated to or made pari passu with any other Lien under section 364(d) of the Bankruptcy Code or otherwise. In addition, the Secured Obligations shall have priority in all of the Cases in accordance with the provisions of section 364(c)(l) of the Bankruptcy Code over all administrative expenses of the kind specified in section 503(b) or 507(b) of the Bankruptcy Code ("Superpriority"), subject only to the Carve-out. Except for the Carve-out, no costs or administrative expenses which have been or may be incurred in any of the Cases, in any conversion of the Borrower's and each Guarantor's Cases pursuant to section 1112 of the Bankruptcy Code, or in any other proceeding related thereto, and no priority Claims, including, without limitation, any other Superpriority Claims, are or will be prior to or on a parity with the (i) Claims of the Agents, the Lenders or the other Secured Parties against the Borrower and each Guarantor arising out of the Secured Obligations or any provision of Bankruptcy Order or (ii) Liens granted herein and in the other Loan Documents in and to the Collateral.
Appears in 1 contract
Priority and Liens. (a) Each of the Borrower and each Guarantor Credit Parties hereby covenants, represents and warrantswarrants that, as security for upon entry of the Supplemental DIP Financing Order (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, the Revolving Obligations shall at all Secured Obligations which may now or from time to time hereafter be owing by times constitute allowed administrative expense claims in the Borrower Bankruptcy Cases with priority over all administrative expense claims and unsecured claims against the Guarantor to the Secured Credit Parties, and each hereby grants to the Administrative Agent for the sole benefit of the Secured Parties a valid, binding, enforceable and perfected Lien in the Collateral, including without limitation all currently owned now existing or hereafter acquired property and assets of the Borrower and each Guarantor arising, of any kind or nature, whether real or personal, tangible or intangible, wherever located, now owned or hereafter acquired or arising and all proceeds, products, rents and profits thereofnature whatsoever, including, without limitation, all cash (including all cash collateraladministrative expenses of the kinds specified in or ordered pursuant to Sections 105, wherever held326, 330, 331, 503(a), goods503(b), accounts receivable, inventory, cash-in-advance deposits, real estate, machinery, equipment, vehicles, trademarks, trade names, licenses, causes of action, rights to payment including tax refund claims, insurance proceeds and commercial tort claims (including, subject to entry of the Final Order, actions for preferences, fraudulent conveyances, and other avoidance power claims and any recoveries under sections 506(c), 542507(a), 544507(b), 545546(c), 547546(d), 548, 549, 550, 552(band 1114 of the Bankruptcy Code and (ii) pursuant to Sections 364(c)(2) and 553 364(d) of the Bankruptcy Code) , the Revolving Obligations shall at all times be secured by a perfected first priority Lien on all property and the proceeds, products, rents and profits assets of all each member of the foregoing (all TP&S Group, except for the Excluded Assets, subject in the case of the foregoing, the "Collateral"), both (i) subject only to the Carve-out, the Pre-petition Liens and to any other valid, binding, enforceable, perfected and unavoidable Liens of record (other than the Liens securing the obligations outstanding under the NUF Loan Documents) existing in the Collateral on the Petition Date and Liens permitted pursuant to clause (d) of Section 8.2 (Liens, Etc.) and (ii) senior only to (A) Senior Liens and superior pursuant (B) the Carve Out (defined below) in an aggregate amount not in excess of $1,050,000 (the "Carve-Out"). The Carve-Out may be used only to section 364(d) pay the fees and expenses of professionals employed by the Credit Parties, the fees and expenses of professionals employed by any statutory committee appointed by the Bankruptcy Code to the Liens securing the obligations outstanding Court under the NUF Loan Documents. Except as expressly set forth in the Bankruptcy Orders, the Liens granted in the Bankruptcy Orders and hereunder shall not be (i) subject to any Lien which is avoided and preserved for the benefit of the Borrower's and each Guarantor's estates under section 551 of the Bankruptcy Code or (ii) subordinated to or made pari passu with any other Lien under section 364(d) of the Bankruptcy Code or otherwise. In addition, the Secured Obligations shall have priority in all of the Cases in accordance with the provisions of section 364(c)(l) of the Bankruptcy Code over all administrative expenses of the kind specified in section 503(b) or 507(b) Section 1102 of the Bankruptcy Code ("SuperpriorityStatutory Committee"), subject only and the expenses of members of any such Statutory Committee, provided that all such fees and expenses are authorized to be paid or approved by the Bankruptcy Court to the extent required under the Bankruptcy Code; provided, however, that the Carve-out. Except Out shall not include, apply to or be available for any fees or expenses incurred by any party, including the Carve-out, no costs Credit Parties or administrative expenses which have been or may be incurred in any of the CasesStatutory Committee, in connection with the initiation or prosecution of any conversion claims, causes of action, adversary proceedings or other litigation against the Borrower's and each Guarantor's Cases pursuant to section 1112 of Agents, the Bankruptcy CodeLenders, the Pre-Petition Agents or in any other proceeding related thereto, and no priority Claimsthe Pre-Petition Lenders, including, without limitation, challenging the amount, validity, priority or enforceability of, or asserting any other Superpriority Claimsdefense, are claim, counterclaim or will be prior to offset to, the Pre-Petition Credit Agreement Obligations or on a parity with the (i) Claims Revolving Obligations or the Liens of the AgentsCollateral Agent and the Lenders, under either the Lenders Pre-Petition Credit Facility or the other Secured Parties against the Borrower and each Guarantor arising out of the Secured Obligations or any provision of Bankruptcy Order or (ii) Liens granted herein and in the other Loan Documents in and to the Collateral.this
Appears in 1 contract
Sources: Debtor in Possession Financing Agreement (Railworks Corp)
Priority and Liens. (a) Each of the Borrower and each Guarantor Credit Parties hereby covenants, represents and warrantswarrants that, as security for all Secured Obligations which may now or from time to time hereafter be owing by upon entry of the Borrower Interim DIP Financing Order and the Guarantor Amendment Order (i) pursuant to Section 364(c)(1) of the Secured Bankruptcy Code, the Obligations shall at all times constitute allowed administrative expense claims in the Bankruptcy Cases with priority over all administrative expense claims and unsecured claims against the Credit Parties, and each hereby grants to the Administrative Agent for the sole benefit of the Secured Parties a valid, binding, enforceable and perfected Lien in the Collateral, including without limitation all currently owned now existing or hereafter acquired property and assets of the Borrower and each Guarantor arising, of any kind or nature, whether real or personal, tangible or intangible, wherever located, now owned or hereafter acquired or arising and all proceeds, products, rents and profits thereofnature whatsoever, including, without limitation, all cash (including all cash collateraladministrative expenses of the kinds specified in or ordered pursuant to Sections 105, wherever held326, 330, 331, 503(a), goods503(b), accounts receivable, inventory, cash-in-advance deposits, real estate, machinery, equipment, vehicles, trademarks, trade names, licenses, causes of action, rights to payment including tax refund claims, insurance proceeds and commercial tort claims (including, subject to entry of the Final Order, actions for preferences, fraudulent conveyances, and other avoidance power claims and any recoveries under sections 506(c), 542507(a), 544507(b), 545546(c), 547546(d), 548, 549, 550, 552(b) and 553 1114 of the Bankruptcy Code) and the proceeds, products, rents and profits of all of the foregoing (all of the foregoing, the "Collateral"), (i) subject only to the Carve-out, the Pre-petition Liens and to any other valid, binding, enforceable, perfected and unavoidable Liens of record (other than the Liens securing the obligations outstanding under the NUF Loan Documents) existing in the Collateral on the Petition Date and Liens permitted pursuant to clause (d) of Section 8.2 (Liens, Etc.) Code and (ii) senior and superior pursuant to section Sections 364(c)(2) and 364(d) of the Bankruptcy Code Code, the Obligations shall at all times be secured by a perfected first priority Lien on all property and assets of each member of the Transit Group, except for the Excluded Assets, and all assets directly related to the Liens securing Specified Contracts (other than the obligations outstanding under the NUF Loan Documents. Except as expressly equipment set forth on Schedule III) subject only to (A) Senior Liens, (B) the Carve Out (defined below) in an aggregate amount not in excess of $1,450,000 (the "Carve-Out") and (C) the UST/Clerk Fees. The Carve-Out may be used only to pay the fees and expenses of professionals employed by the Credit Parties, the fees and expenses of professionals employed by any statutory committee appointed by the Bankruptcy Orders, the Liens granted in the Bankruptcy Orders and hereunder shall not be (i) subject to any Lien which is avoided and preserved for the benefit of the Borrower's and each Guarantor's estates Court under section 551 of the Bankruptcy Code or (ii) subordinated to or made pari passu with any other Lien under section 364(d) of the Bankruptcy Code or otherwise. In addition, the Secured Obligations shall have priority in all of the Cases in accordance with the provisions of section 364(c)(l) of the Bankruptcy Code over all administrative expenses of the kind specified in section 503(b) or 507(b) Section 1102 of the Bankruptcy Code ("SuperpriorityStatutory Committee"), subject only and the expenses of members of any such Statutory Committee; provided that all such fees and expenses are authorized to be paid or approved by the Bankruptcy Court to the extent required under the Bankruptcy Code; provided, however, that the Carve-out. Except Out shall not include, apply to or be available for any fees or expenses incurred by any party, including the Carve-out, no costs Credit Parties or administrative expenses which have been or may be incurred in any of the CasesStatutory Committee, in connection with the initiation or prosecution (but not investigation) of any conversion claims, causes of action, adversary proceedings or other litigation against the Borrower's and each Guarantor's Cases pursuant to section 1112 of Administrative Agent or the Bankruptcy Code, or in any other proceeding related thereto, and no priority ClaimsLenders, including, without limitation, challenging the amount, validity, priority or enforceability of, or asserting any other Superpriority Claimsdefense, are claim, counterclaim or will be prior to offset to, the Obligations or on a parity with the (i) Claims Liens of the AgentsAdministrative Agent, the Lenders and the Issuer under this Agreement in respect thereof. The Lenders agree that so long as the Tranche B Maturity Date shall not have occurred or the other Secured Administrative Agent or the Lenders have not exercised any remedies as a result of an Event of Default, the Credit Parties against shall be permitted to pay compensation and reimbursement of expenses accrued and payable under 11 U.S.C. [sec] 330 and 11 U.S.C. [sec] 331, as the Borrower same may be due and each Guarantor arising out payable as authorized by the Bankruptcy Court, and the same shall not reduce the amount available under the Carve-Out. The foregoing shall not be construed as a consent to the allowance of any fees and expenses or bonuses referred to above and shall not affect the right of the Secured Obligations Credit Parties, the Administrative Agent or the Lenders to object to the allowance and payment of such amounts.
(b) As to all real property the title to which is held by any provision of Bankruptcy Order the Credit Parties, or the possession of which is held by any of the Credit Parties pursuant to a leasehold interest or otherwise, each of the Credit Parties hereby assigns and conveys as security, grants a security interest in, hypothecates, mortgages, pledges and sets over unto the Administrative Agent on behalf of the Lenders and the Issuer all of the right, title and interest of such Credit Party in all of such owned real property and in all such leasehold interests or other interests, together in each case with all of the right, title and interest of such Credit Party in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof, such assignment, conveyance and security interest to have the priorities set forth in Section 9.01(a)(i) and (ii) above.
(c) Each of the Credit Parties acknowledges that, pursuant to the DIP Financing Orders, the Liens granted herein in favor of the Administrative Agent on behalf of the Lenders and the Issuer in all of such real property and leasehold interests, and all of the other Loan Documents in and to Collateral, shall be perfected without the Collateraltaking of any further action, including any recordation of any instruments of mortgage or assignment, or the recording or filing of any financing statements, notices of lien or other similar instruments.
Appears in 1 contract
Sources: Debt Agreement (Railworks Corp)
Priority and Liens. Each of the The Borrower and each Guarantor of the Guarantors hereby covenants, represents and warrantswarrants that, as security for all Secured upon entry of the Order:
(a) Pursuant to Section 364(c)(1) of the Bankruptcy Code, the Obligations which may now or from time to time hereafter be owing by of the Borrower and the Guarantor to the Secured Parties, Guarantors hereunder and each hereby grants to the Administrative Agent for the sole benefit of the Secured Parties a valid, binding, enforceable and perfected Lien in the Collateral, including without limitation all currently owned or hereafter acquired property and assets of the Borrower and each Guarantor of any kind or nature, whether real or personal, tangible or intangible, wherever located, now owned or hereafter acquired or arising and all proceeds, products, rents and profits thereof, including, without limitation, all cash (including all cash collateral, wherever held), goods, accounts receivable, inventory, cash-in-advance deposits, real estate, machinery, equipment, vehicles, trademarks, trade names, licenses, causes of action, rights to payment including tax refund claims, insurance proceeds and commercial tort claims (including, subject to entry of the Final Order, actions for preferences, fraudulent conveyances, and other avoidance power claims and any recoveries under sections 506(c), 542, 544, 545, 547, 548, 549, 550, 552(b) and 553 of the Bankruptcy Code) and the proceeds, products, rents and profits of all of the foregoing (all of the foregoing, the "Collateral"), (i) subject only to the Carve-out, the Pre-petition Liens and to any other valid, binding, enforceable, perfected and unavoidable Liens of record (other than the Liens securing the obligations outstanding under the NUF Loan Documents) existing in the Collateral on the Petition Date and Liens permitted pursuant to clause (d) of Section 8.2 (Liens, Etc.) and (ii) senior and superior pursuant to section 364(d) of the Bankruptcy Code to the Liens securing the obligations outstanding under the NUF Loan Documents. Except as expressly set forth in the Bankruptcy Orders, the Liens granted in the Bankruptcy Orders and hereunder Documents shall not be (i) subject to any Lien which is avoided and preserved for the benefit of the Borrower's and each Guarantor's estates under section 551 of the Bankruptcy Code or (ii) subordinated to or made pari passu with any other Lien under section 364(d) of the Bankruptcy Code or otherwise. In addition, the Secured Obligations shall have at all times constitute allowed administrative expense claims having priority in all of the Cases in accordance with the provisions of section 364(c)(l) of the Bankruptcy Code over all administrative expenses of the kind specified in section Sections 503(b) or ), 507(b), 364(c) of the Bankruptcy Code in the Cases and any future Chapter 7 Case; and
("Superpriority"), subject only b) Pursuant to the Carve-out. Except for the Carve-out, no costs or administrative expenses which have been or may be incurred in any of the Cases, in any conversion of the Borrower's and each Guarantor's Cases pursuant to section 1112 Section 364(c)(2) of the Bankruptcy Code, the Obligations of the Borrower and the Guarantors hereunder and under the Loan Documents shall at all times be secured by a first priority Lien in all cash and cash equivalents maintained in the Cash Collateral Account and any direct investments of the funds contained therein; subject only in the event of the occurrence and during the continuance of an Event of Default, to the payment of (x)allowed and unpaid fees and disbursements and any future fees and disbursements incurred after the Event of Default by the professionals retained in the Cases pursuant to Section 327 of the Bankruptcy Code, any statutory committee appointed in the Cases and any trustee or examiner appointed or elected in any other proceeding related thereto, and no priority Claims, the Cases (including, without limitation, in a superseding chapter 7 case) in an amount not in excess of $5,000,000 in the aggregate and (y)fees pursuant to 28 U.S.C. Section 1930 ((x) and (y) collectively, the "CARVE-OUT"), PROVIDED that following the Termination Date, the cash and cash equivalents in the Cash Collateral Account and any other Superpriority Claimsdirect investments of the funds contained therein shall not be subject to the Carve-Out. Notwithstanding the foregoing, are so long as a Default or will Event of Default shall not have occurred, (i)the Borrower and the Guarantors shall be prior permitted to pay compensation and reimbursement of expenses allowed and payable under Sections 330 and 331 of the Bankruptcy Code, as the same may be due and payable, and (ii)such payments shall not be applied against the Carve-Out. The foregoing shall not be construed as a consent to the allowance of any fees and expenses and shall not affect the rights of the Lenders to object to the allowance and payment of any such amounts. No Loans, including the Carve-Out, shall apply to or on a parity be available for any fees or expenses incurred by the Borrower or the Guarantors in connection with the (i) Claims initiation or prosecution of any claims, causes of action, adversary proceeding or other litigation against the Lenders, the Issuing Bank, the Agent, the Co-Agents or the Administrative Agent for the purpose of challenging the amount, validity, priority or enforceability of, or asserting any defense, counterclaim or offset to, the Obligations or the security interests and liens of the AgentsLenders, the Lenders Issuing Bank, the Agent, the Co-Agents or the other Secured Parties against the Borrower and each Guarantor arising out of the Secured Obligations or any provision of Bankruptcy Order or (ii) Liens granted herein and in the other Loan Documents in and to the CollateralAdministrative Agent.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Bradlees Inc)
Priority and Liens. Each of the Borrower (a) The Borrowers hereby covenant, represent and each Guarantor hereby covenantswarrant that, represents and warrants, as security for all Secured Obligations which may now or from time to time hereafter be owing by the Borrower and the Guarantor to the Secured Parties, and each hereby grants to the Administrative Agent for the sole benefit of the Secured Parties a valid, binding, enforceable and perfected Lien in the Collateral, including without limitation all currently owned or hereafter acquired property and assets of the Borrower and each Guarantor of any kind or nature, whether real or personal, tangible or intangible, wherever located, now owned or hereafter acquired or arising and all proceeds, products, rents and profits thereof, including, without limitation, all cash (including all cash collateral, wherever held), goods, accounts receivable, inventory, cash-in-advance deposits, real estate, machinery, equipment, vehicles, trademarks, trade names, licenses, causes of action, rights to payment including tax refund claims, insurance proceeds and commercial tort claims (including, subject to upon entry of the Final Interim Order, actions for preferences(i) all amounts owing to the Lenders under the DIP Facility at all times will constitute allowed super-priority administrative expense claims, fraudulent conveyances, and other avoidance power claims and any recoveries under sections 506(c), 542, 544, 545, 547, 548, 549, 550, 552(bpursuant to section 364(c)(1) and 553 of the Bankruptcy Code) and the proceeds, products, rents and profits of all of the foregoing (all of the foregoing, the "Collateral"), (i) subject only to the Carve-out, the Pre-petition Liens and to any other valid, binding, enforceable, perfected and unavoidable Liens of record (other than the Liens securing the obligations outstanding under the NUF Loan Documents) existing in the Collateral on the Petition Date and Liens permitted pursuant to clause (d) of Section 8.2 (Liens, Etc.) and (ii) senior and superior pursuant to section 364(d) of the Bankruptcy Code to the Liens securing the obligations outstanding under the NUF Loan Documents. Except as expressly set forth in the Bankruptcy Orders, the Liens granted in the Bankruptcy Orders and hereunder shall not be (i) subject to any Lien which is avoided and preserved for the benefit of the Borrower's and each Guarantor's estates under section 551 of the Bankruptcy Code or (ii) subordinated to or made pari passu with any other Lien under section 364(d) of the Bankruptcy Code or otherwise. In addition, the Secured Obligations shall have having priority in all of the Cases in accordance with the provisions of section 364(c)(l) of the Bankruptcy Code over all administrative expenses of the kind specified in section sections 105, 326, 328, 330, 331, 503(a), 503(b) ), 506(c), 507(a), 507(b), 726 or 507(b) 1114 of the Bankruptcy Code ("Superpriority")Code, subject only to the Carve-out. Except for Out Expenses (collectively, the “Superpriority Claim”) and (ii) all Obligations owing to the Lenders under the DIP Facility will be secured pursuant to sections 364(c)(2) and 364(d)(1) of the Bankruptcy Code by a first priority perfected security interest in and lien upon all assets (tangible, intangible, real, personal or mixed) of the Borrowers, whether now owned or hereafter acquired, including, without limitation, accounts, inventory, cash, cash collateral, equipment, capital stock in subsidiaries, membership interests in subsidiaries, investment property, instruments, chattel paper, real estate, leasehold interests, contracts, copyrights, trademarks, causes of action, including proceeds of avoidance actions, and other general intangibles, and all products, additions, accessions and proceeds thereof (the “Collateral”), all subject only to the Carve-outOut Expenses (collectively, no costs the “Liens”), senior to all liens and encumbrances except only (A) the Carve-Out Expenses and (B) liens on Collateral that are existing and valid, perfected, enforceable and unavoidable as of the Filing Date, other than liens held by on of the Lenders; provided that the Borrowers, the Agent and each Lender acknowledges and agrees that (x) in addition to the Common DIP Liens referred to in clause (z) below, Obligations owed to Patriot will be secured only by Liens on Collateral that is property of the estates of Borrowers indebted to Patriot (either as primary obligors or administrative guarantors) as of the Filing Date under the Patriot Existing Loans and that is property subject to Existing Liens in favor of Patriot (the “Patriot DIP Liens”) and Superpriority Claims against such estates, (y) in addition to the Common DIP Liens referred to in clause (z) below, Obligations owed to LPP will be secured only by Liens on Collateral that is property of the estates of Borrowers indebted to LPP (either as primary obligors or guarantors) as of the Filing Date under the ▇▇▇▇ Existing Loans and that is property subject Existing Liens in favor of LPP (the “LPP DIP Liens”) and Superpriority Claims against such estates, and (z) if there are Borrowers that are not obligated to Patriot or LPP under Existing Loans (either as primary obligors or guarantors) as of the Filing Date, LPP and Patriot will share pari passu Liens (the “Common DIP Liens”) and Superpriority Claims (the “Common Superpriority Claims”) with respect to such estates and the property thereof to secure the Obligations; provided that if and to the extent such property is subject to a valid and enforceable lien prior to the Filing Date, then such Common DIP Liens shall be junior in priority to such pre-existing liens and it being more fully understood that that Patriot's Superpriority Claim vis a vis the ▇▇▇▇ Collateral is subject to the LPP DIP Liens and ▇▇▇▇'▇ Superpriority Claim vis a vis the Patriot Collateral is subject to the Patriot DIP Liens.
(b) The Liens and Superpriority Claims shall be subject only to the right of payment of the following expenses which have been (the "Carve-Out Expenses"):
(i) statutory fees payable to the U.S. Trustee pursuant to 28 U.S.C. § 1930(a)(6);
(ii) fees payable to the Clerk of the Bankruptcy Court;
(iii) upon the declaration by the Agent of the occurrence of an Event of Default and demand for the immediate repayment in full of all Obligations (a “Carve-Out Default Notice”), the unpaid and outstanding reasonable fees and expenses actually incurred on or after the Filing Date, and approved by order of the Court pursuant to sections 326, 328, 330, or 331 of the Bankruptcy Code (collectively, the "Allowed Professional Fees") by attorneys, accountants and other professionals retained by the Borrowers or any Committee (collectively, the "Professionals") less the amount of any retainers, if any, then held by such Professionals, in a cumulative, aggregate sum not to exceed $ [1.1 million] (the “Professional Fee Carve-Out”) net of any cash Collateral released by the Lenders; and
(iv) Accrued but unpaid ordinary course of business expenses as set forth in the Budget up to $[50,000].
(c) None of (i) the Professional Fee Carve-Out, (ii) any proceeds of the DIP Facility, or (iii) the Collateral, may be used to pay any Allowed Professional Fees or any other fees and/or expenses incurred by any Professional in connection with any of the Casesfollowing: (a) an assertion or joinder in (but excluding any investigation into) any claim, counter-claim, action, proceeding, application, motion, objection, defense, or other contested matter seeking any order, judgment, determination or similar relief: (i) challenging the legality, validity, priority, perfection, or enforceability of the Obligations or the Lenders’ pre-petition or post-petition liens on and security interests in any Collateral, (ii) invalidating, setting aside, avoiding, or subordinating, in whole or in part, the Obligations or the Lenders’ pre-petition or post-petition liens on and security interests in any conversion Collateral, or (iii) preventing the Lenders’ assertion or enforcement of the Borrower's and each Guarantor's Cases pursuant any lien, claim, right or security interest or realization upon any Collateral, (b) a request to use cash collateral (as such term is defined in section 1112 363 of the Bankruptcy Code) without the prior written consent of the Lenders, (c) a request for authorization to obtain debtor- in-possession financing or other financial accommodations pursuant to section 364(c) or (d) of the Bankruptcy Code other than from any Lender pursuant to the terms of the financing agreements between the Borrowers and the Lenders, or either thereof (the “Financing Agreements”) without the prior written consent of the Lenders, other than financing the proceeds of which will be used to immediately satisfy in full the Borrowers’ obligations under the DIP Facility and the Existing Loans, (e) the commencement or prosecution of any other action or proceeding related theretoof any claims, and no priority Claimscauses of action, or defenses against either Lender or any of its officers, directors, employees, agents, attorneys, affiliates, assigns, or successors, including, without limitation, any other Superpriority Claims, are attempt to recover or will be prior to avoid any claim or on a parity with interest from the (i) Claims Lenders under Chapter 5 of the AgentsBankruptcy Code, the Lenders or the other Secured Parties against the Borrower and each Guarantor arising out of the Secured Obligations or any provision of Bankruptcy Order or (iif) Liens granted herein and any act which has or could reasonably have the effect of resulting in the other Loan Documents in and to occurrence of an Event of Default under the CollateralFinancing Agreements and/or the Interim or Final Order.
Appears in 1 contract
Sources: Dip Credit Agreement
Priority and Liens. (a) Each of the Borrower and each Guarantor Credit Parties hereby covenants, represents and warrantswarrants that, as security for upon entry of the Interim DIP Financing Order (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, the Obligations shall at all Secured Obligations which may now or from time to time hereafter be owing by times constitute allowed administrative expense claims in the Borrower Bankruptcy Cases with priority over all administrative expense claims and unsecured claims against the Guarantor to the Secured Credit Parties, and each hereby grants to the Administrative Agent for the sole benefit of the Secured Parties a valid, binding, enforceable and perfected Lien in the Collateral, including without limitation all currently owned now existing or hereafter acquired property and assets of the Borrower and each Guarantor arising, of any kind or nature, whether real or personal, tangible or intangible, wherever located, now owned or hereafter acquired or arising and all proceeds, products, rents and profits thereofnature whatsoever, including, without limitation, all cash (including all cash collateraladministrative expenses of the kinds specified in or ordered pursuant to Sections 105, wherever held326, 330, 331, 503(a), goods503(b), accounts receivable, inventory, cash-in-advance deposits, real estate, machinery, equipment, vehicles, trademarks, trade names, licenses, causes of action, rights to payment including tax refund claims, insurance proceeds and commercial tort claims (including, subject to entry of the Final Order, actions for preferences, fraudulent conveyances, and other avoidance power claims and any recoveries under sections 506(c), 542507(a), 544507(b), 545546(c), 547546(d), 548, 549, 550, 552(b) and 553 1114 of the Bankruptcy Code) and the proceeds, products, rents and profits of all of the foregoing (all of the foregoing, the "Collateral"), (i) subject only to the Carve-out, the Pre-petition Liens and to any other valid, binding, enforceable, perfected and unavoidable Liens of record (other than the Liens securing the obligations outstanding under the NUF Loan Documents) existing in the Collateral on the Petition Date and Liens permitted pursuant to clause (d) of Section 8.2 (Liens, Etc.) Code and (ii) senior and superior pursuant to section Sections 364(c)(2) and 364(d) of the Bankruptcy Code Code, the Obligations shall at all times be secured by a perfected first priority Lien on all property and assets of each member of the Transit Group, except for the Excluded Assets, and all assets directly related to the Liens securing Specified Contracts (other than the obligations outstanding under the NUF Loan Documents. Except as expressly equipment set forth on Schedule III) subject only to (A) Senior Liens, (B) the Carve Out (defined below) in an aggregate amount not in excess of $1,450,000 (the "Carve-Out") and (C) the UST/Clerk Fees. The Carve-Out may be used only to pay the fees and expenses of professionals employed by the Credit Parties, the fees and expenses of professionals employed by any statutory committee appointed by the Bankruptcy Orders, the Liens granted in the Bankruptcy Orders and hereunder shall not be (i) subject to any Lien which is avoided and preserved for the benefit of the Borrower's and each Guarantor's estates Court under section 551 of the Bankruptcy Code or (ii) subordinated to or made pari passu with any other Lien under section 364(d) of the Bankruptcy Code or otherwise. In addition, the Secured Obligations shall have priority in all of the Cases in accordance with the provisions of section 364(c)(l) of the Bankruptcy Code over all administrative expenses of the kind specified in section 503(b) or 507(b) Section 1102 of the Bankruptcy Code ("SuperpriorityStatutory Committee"), subject only and the expenses of members of any such Statutory Committee; provided that all such fees and expenses are authorized to be paid or approved by the Bankruptcy Court to the extent required under the Bankruptcy Code; provided, however, that the Carve-out. Except Out shall not include, apply to or be available for any fees or expenses incurred by any party, including the Carve-out, no costs Credit Parties or administrative expenses which have been or may be incurred in any of the CasesStatutory Committee, in connection with the initiation or prosecution (but not investigation) of any conversion claims, causes of action, adversary proceedings or other litigation against the Borrower's and each Guarantor's Cases pursuant to section 1112 of Administrative Agent, the Bankruptcy Code, Issuer or in any other proceeding related thereto, and no priority Claimsthe Lenders, including, without limitation, challenging the amount, validity, priority or enforceability of, or asserting any other Superpriority Claimsdefense, are claim, counterclaim or will be prior to offset to, the Obligations or on a parity with the (i) Claims Liens of the AgentsAdministrative Agent, the Issuer and the Lenders under this Agreement in respect thereof. The Lenders and the Issuer agree that so long as the Maturity Date shall not have occurred or the other Secured Administrative Agent or the Lenders have not exercised any remedies as a result of an Event of Default, the Credit Parties against shall be permitted to pay compensation and reimbursement of expenses accrued and payable under 11 U.S.C.ss. 330 and 11 U.S.C.ss. 331, as the Borrower same may b▇ ▇▇▇ ▇▇d payable as authorized by the Bankruptcy Court, and each Guarantor arising out the same shall not reduce the amount available under the Carve-Out. The foregoing shall not be construed as a consent to the allowance of any fees and expenses or bonuses referred to above and shall not affect the right of the Secured Obligations Credit Parties, the Administrative Agent, the Issuer or any provision of Bankruptcy Order or (ii) Liens granted herein and in the other Loan Documents in and Lenders to object to the Collateralallowance and payment of such amounts.
Appears in 1 contract
Priority and Liens. Each of the The Borrower and each Guarantor of the Guarantors hereby covenants, represents and warrantswarrants that, as security for all Secured upon entry of the Order:
(a) Pursuant to Section 364(c)(1) of the Bankruptcy Code, the Obligations which may now or from time to time hereafter be owing by of the Borrower and the Guarantor to the Secured Parties, Guarantors hereunder and each hereby grants to the Administrative Agent for the sole benefit of the Secured Parties a valid, binding, enforceable and perfected Lien in the Collateral, including without limitation all currently owned or hereafter acquired property and assets of the Borrower and each Guarantor of any kind or nature, whether real or personal, tangible or intangible, wherever located, now owned or hereafter acquired or arising and all proceeds, products, rents and profits thereof, including, without limitation, all cash (including all cash collateral, wherever held), goods, accounts receivable, inventory, cash-in-advance deposits, real estate, machinery, equipment, vehicles, trademarks, trade names, licenses, causes of action, rights to payment including tax refund claims, insurance proceeds and commercial tort claims (including, subject to entry of the Final Order, actions for preferences, fraudulent conveyances, and other avoidance power claims and any recoveries under sections 506(c), 542, 544, 545, 547, 548, 549, 550, 552(b) and 553 of the Bankruptcy Code) and the proceeds, products, rents and profits of all of the foregoing (all of the foregoing, the "Collateral"), (i) subject only to the Carve-out, the Pre-petition Liens and to any other valid, binding, enforceable, perfected and unavoidable Liens of record (other than the Liens securing the obligations outstanding under the NUF other Loan Documents) existing in the Collateral on the Petition Date and Liens permitted pursuant to clause (d) of Section 8.2 (Liens, Etc.) and (ii) senior and superior pursuant to section 364(d) of the Bankruptcy Code to the Liens securing the obligations outstanding under the NUF Loan Documents. Except as expressly set forth in the Bankruptcy Orders, the Liens granted in the Bankruptcy Orders and hereunder Documents shall not be (i) subject to any Lien which is avoided and preserved for the benefit of the Borrower's and each Guarantor's estates under section 551 of the Bankruptcy Code or (ii) subordinated to or made pari passu with any other Lien under section 364(d) of the Bankruptcy Code or otherwise. In addition, the Secured Obligations shall have at all times constitute allowed administrative expense claims having priority in all of the Cases in accordance with the provisions of section 364(c)(l) of the Bankruptcy Code over all administrative expenses of the kind specified in section Sections 503(b) or ), 507(b), 364(c) of the Bankruptcy Code in the Case and in any future Chapter 7 Case;
(b) Pursuant to Section 364(c)(2) of the Bankruptcy Code, the Obligations of the Borrower and the Guarantors hereunder and under the other Loan Documents shall at all times be secured by a first priority Lien on all property (including, but not limited to, all Inventory, Receivables, equipment, leasehold interests in real property, intellectual property, ownership interests in any Subsidiaries of the Borrower and general intangibles) of the Borrower and the Guarantors not subject to (i) valid and perfected Liens in existence on the Filing Date and set forth on Schedule 3.06(a) (other than property which is subject to existing Liens that presently secure the obligations of the Borrower and the Guarantors under the Existing Agreements, as to which the Lien in favor of the Collateral Agent on behalf of the Lenders, the Administrative Agent, the Issuing Bank and the Managing Agent is described in subsection (d) below), (ii) valid and perfected purchase money Liens created and perfected after the Filing Date and before the Closing Date securing amounts not in excess of $750,000 in the aggregate and set forth on Schedule 3.06(b) and (iii) Liens securing the Fleet Post-Petition Loan Agreement pursuant to the Fleet Post-Petition Order, and on all cash and cash equivalents maintained in the Loan Account, the Cash Collateral Account, the BBNA Disbursement Accounts, the BBNA Cash Concentration Account, the Chase Concentration Account, the Chase Disbursement Accounts, all Blocked Accounts and all other deposit accounts (other than the GE Account) of the Borrower and the Guarantors and any direct investments of the funds contained therein (including, without limitation, Permitted Investments);
(c) Pursuant to Section 364(c)(3) of the Bankruptcy Code, the Obligations of the Borrower and the Guarantors hereunder and under the other Loan Documents shall at all times be secured by a perfected Lien upon all property of the Borrower and the Guarantors, real and personal, whether now owned or hereafter acquired (other than property which is subject to existing Liens that presently secure the obligations of the Borrower and the Guarantors under the Existing Agreements, as to which the Lien in favor of the Collateral Agent on behalf of the Lenders, the Administrative Agent, the Issuing Bank and the Managing Agent is described in subsection (d) below) (i) subject and junior only to (A) valid and perfected Liens in existence on the Filing Date and set forth in Schedule 3.06(a), (B) valid and perfected purchase money Liens created and perfected after the Filing Date and before the Closing Date securing amounts not in excess of $750,000 in the aggregate and set forth on Schedule 3.06(b) and (C) Liens securing the Fleet Post-Petition Loan Agreement pursuant to the Fleet Post-Petition Order, (ii) senior to any such valid and perfected Lien in existence on the Filing Date that is anytime set aside or avoided, even if preserved for the 35 42 benefit of any creditor or estate, (iii) free from all other Liens except Permitted Liens and (iv) senior to any and all Permitted Liens that were not valid and perfected on the Filing Date; and
(d) Pursuant to Section 364(d)(1) of the Bankruptcy Code, the Obligations of the Borrower and the Guarantors hereunder and under the other Loan Documents shall at all times be secured by a first-priority perfected senior priming lien upon all the property of the Borrower and the Guarantors, real and personal, whether now owned or hereafter acquired (including, without limitation, all Inventory, Receivables, general intangibles, equipment, intellectual property, ownership interests in any Subsidiaries of the Borrower and leasehold interests in real property) that is subject to existing Liens that presently secure the Borrower's and the Guarantors' pre-petition Indebtedness under the Existing Agreements and any Liens granted after the Filing Date to provide adequate protection in respect of the Existing Agreements; subject to the payment of (i) allowed administrative expenses incurred pursuant to 28 U.S.C. Section 1930(a)(6) and (ii) allowed accrued and unpaid and future fees and expenses incurred by the Borrower's professionals and any statutory committee of professionals appointed in the Case pursuant to Sections 327 and 1103 of the Bankruptcy Code, which shall not exceed $6,000,000 in the aggregate subsequent to the occurrence of an Event of Default (the "SuperpriorityCarve-out"); provided that following the Termination Date, the cash and cash equivalents in the Cash Collateral Account and any direct investments of the funds contained therein shall not be subject only to the Carve-out. Except for Out.
(e) As to all real property the Carve-outtitle to which is held by the Borrower or any Guarantor, no costs or administrative expenses the possession of which have been is held by the Borrower or may be incurred in any Guarantor pursuant to a leasehold interest, each of the CasesBorrower and the Guarantors hereby assigns and conveys as security, grants a security interest in, hypothecates, mortgages, pledges and sets over unto the Collateral Agent on behalf of itself, the Administrative Agent, the Managing Agent, the Issuing Bank and the Lenders all of the right, title and interest of the Borrower and such Guarantor in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of the Borrower and each Guarantor in and to all buildings, improvements, and fixtures related thereto, any conversion lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. As provided in the Order, the parties hereto agree that the Liens in favor of the Collateral Agent on behalf of itself, the Administrative Agent, the Managing Agent, the Issuing Bank and the Lenders in all of such real property and leasehold interests shall be perfected without the recordation of any instruments of mortgage or assignment. Each of the Borrower and the Guarantors further agrees that the Collateral Agent on behalf of itself, the Administrative Agent, the Managing Agent, the Issuing Bank and the Lenders shall have rights and remedies in respect of such real property and leasehold interests substantially as set forth in the Mortgages and Leasehold Mortgages described in Schedule 2.23. For the avoidance of doubt, the Obligations of the Borrower and the Guarantors hereunder and under the other Loan Documents must be secured by an unshared first-priority perfected Lien on any and all of the Borrower's and the Guarantors' Inventory, Receivables and leasehold interests in real estate included in the Borrowing Base (in each Guarantor's Cases case, with all of the rights granted hereunder, under the other Loan Documents and pursuant to section 1112 the Order (as such Order is in effect on the Closing Date)). Notwithstanding the foregoing, so long as a Default or Event of Default shall not have occurred and be continuing, (i) the Borrower and the Guarantors shall be permitted to pay compensation and reimbursement of expenses allowed and payable under Sections 330 and 331 of the Bankruptcy Code, or in any other proceeding related theretoas the same may be due and payable, and no priority Claims, including, without limitation, any other Superpriority Claims, are or will be prior to or on a parity with the (i) Claims of the Agents, the Lenders or the other Secured Parties against the Borrower and each Guarantor arising out of the Secured Obligations or any provision of Bankruptcy Order or (ii) Liens granted herein and in such payments shall not be applied against the other Loan Documents in and Carve-Out. The foregoing shall not be construed as a consent to the Collateralallowance of any fees and expenses and shall not affect the rights of the Lenders to object to the allowance and payment of any such amounts.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Caldor Corp)
Priority and Liens. Each of the (a) The Borrower and each Guarantor of the Guarantors hereby covenants, represents and warrantswarrants that, upon entry of the Interim Order (and the Final Order, as security for all Secured applicable), the Obligations which may now or from time to time hereafter be owing by of the Borrower and the Guarantor Guarantors hereunder and under the Loan Documents and in respect of Indebtedness arising after the Filing Date owed to the Secured Parties, and each hereby grants any Lender (or its Banking Affiliates) permitted by Section 6.03(vi): (i) pursuant to the Administrative Agent for the sole benefit of the Secured Parties a valid, binding, enforceable and perfected Lien in the Collateral, including without limitation all currently owned or hereafter acquired property and assets of the Borrower and each Guarantor of any kind or nature, whether real or personal, tangible or intangible, wherever located, now owned or hereafter acquired or arising and all proceeds, products, rents and profits thereof, including, without limitation, all cash (including all cash collateral, wherever held), goods, accounts receivable, inventory, cash-in-advance deposits, real estate, machinery, equipment, vehicles, trademarks, trade names, licenses, causes of action, rights to payment including tax refund claims, insurance proceeds and commercial tort claims (including, subject to entry of the Final Order, actions for preferences, fraudulent conveyances, and other avoidance power claims and any recoveries under sections 506(c), 542, 544, 545, 547, 548, 549, 550, 552(bSection 364(c)(1) and 553 of the Bankruptcy Code) , shall at all times constitute joint and the proceeds, products, rents and profits of all of the foregoing (all of the foregoing, the "Collateral"), (i) subject only to the Carve-out, the Pre-petition Liens and to any other valid, binding, enforceable, perfected and unavoidable Liens of record (other than the Liens securing the obligations outstanding under the NUF Loan Documents) existing several allowed administrative expense claims in the Collateral on the Petition Date and Liens permitted pursuant to clause (d) of Section 8.2 (Liens, Etc.) and (ii) senior and superior pursuant to section 364(d) of the Bankruptcy Code to the Liens securing the obligations outstanding under the NUF Loan Documents. Except as expressly set forth in the Bankruptcy Orders, the Liens granted in the Bankruptcy Orders and hereunder shall not be (i) subject to any Lien which is avoided and preserved for the benefit of the Borrower's and each Guarantor's estates under section 551 of the Bankruptcy Code or (ii) subordinated to or made pari passu with any other Lien under section 364(d) of the Bankruptcy Code or otherwise. In addition, the Secured Obligations shall have Cases having priority in all of the Cases in accordance with the provisions of section 364(c)(l) of the Bankruptcy Code over all administrative expenses of the kind specified in section Sections 503(b) or 507(b) of the Bankruptcy Code; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a perfected first priority Lien on all tangible and intangible property of the Borrower's and the Guarantors' respective estates in the Cases that is not subject to valid, perfected and non-avoidable liens as of the Filing Date, and on all cash maintained in the Letter of Credit Account and any direct investments of the funds contained therein; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a perfected Lien upon all tangible and intangible property of the Borrower's and the Guarantors' respective estates in the Cases that is subject to valid, perfected and non-avoidable Liens in existence on the Filing Date or to valid Liens in existence on the Filing Date that are perfected subsequent to the Filing Date as permitted by Section 546(b) of the Bankruptcy Code or to Permitted Liens, junior to such valid, perfected and non-avoidable Liens ("Superpriority"provided that as set forth in clause (iv) of this sentence, the existing Liens that presently secure the obligations of the Borrower and the Guarantors under the Existing Agreements, will be primed by the Lien in favor of the Agent and the Lenders as described in clause (iv) of this sentence); and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a perfected first priority, senior priming Lien on all of the tangible and intangible property of the Borrower and the Guarantors that is subject to a valid and enforceable right of setoff by any Lender party to an Existing Agreement or to existing Liens that presently secure the Borrower's and the Guarantors' pre-petition Indebtedness under the Existing Agreements (but subject to any Liens in existence on the Filing Date to which the Liens being primed hereby are subject or become subject subsequent to the Filing Date as permitted by Section 546(b) of the Bankruptcy Code) and any Liens granted after the Filing Date to provide adequate protection in respect of the Existing Agreements; in the case of each of clauses (i) through (iv) subject only to the Carve-out. Except for Out, provided that, except as otherwise provided in the Orders, no portion of the Carve-outOut shall be utilized for the payment of professional fees and disbursements incurred in connection with any challenge to the amount, extent, priority, validity, perfection or enforcement of the indebtedness of the Borrower and the Guarantors owing to the Existing Lenders or to the collateral securing such indebtedness. The Lenders agree that so long as no costs Event of Default or administrative event which with the giving of notice or lapse of time or both would constitute an Event of Default shall have occurred, the Borrower and the Guarantors shall be permitted to pay compensation and reimbursement of expenses which have been or allowed and payable under 11 U.S.C. ss. 330 and 11 U.S.C. ss. 331, as the same may be incurred due and payable, and the same shall not reduce the Carve-Out.
(b) Subject to the priorities set forth in subsection (a) above and to the Carve-Out, as to all real property the title to which is held by the Borrower or any of the CasesGuarantors, in or the possession of which is held by the Borrower or any conversion of the Borrower's and each Guarantor's Cases Guarantors pursuant to section 1112 of the Bankruptcy Code, or in any other proceeding related theretoleasehold interest, and no priority Claimswhich secures the obligations under the Existing Agreements, including, without limitation, any other Superpriority Claims, are or will be prior to or on a parity with the (i) Claims of the Agents, the Lenders or the other Secured Parties against the Borrower and each Guarantor arising out hereby assigns and conveys as security, grants a security interest in, hypothecates, mortgages, pledges and sets over unto the Agent on behalf of the Secured Obligations or any provision Lenders all of Bankruptcy Order or (ii) Liens granted herein the right, title and interest of the Borrower and such Guarantor in all of such owned real property and in all such leasehold interests, together in each case with all of the other Loan Documents right, title and interest of the Borrower and such Guarantor in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. The Borrower and each Guarantor acknowledges that, pursuant to the CollateralOrders, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments shall be perfected without the recordation of any instruments of mortgage or assignment. The Borrower and each Guarantor further agrees that, upon the request of the Agent, the Borrower and such Guarantor shall enter into separate fee or leasehold mortgages in recordable form with respect to such properties on terms reasonably satisfactory to the Agent.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (McLeodusa Inc)
Priority and Liens. Each of the The Borrower and each Guarantor of the Guarantors hereby covenants, represents and warrantswarrants that, as security for all Secured upon entry of the Interim Order and the Thirteenth Amendment Order, the Obligations which may now or from time to time hereafter be owing by of the Borrower and the Guarantor Guarantors hereunder and under the Loan Documents and in respect of Indebtedness arising after the Filing Date owed to the Secured Parties, and each hereby grants any Lender (or its banking Affiliates) permitted by Section 6.03(viii): (i) pursuant to the Administrative Agent for the sole benefit of the Secured Parties a valid, binding, enforceable and perfected Lien in the Collateral, including without limitation all currently owned or hereafter acquired property and assets of the Borrower and each Guarantor of any kind or nature, whether real or personal, tangible or intangible, wherever located, now owned or hereafter acquired or arising and all proceeds, products, rents and profits thereof, including, without limitation, all cash (including all cash collateral, wherever held), goods, accounts receivable, inventory, cash-in-advance deposits, real estate, machinery, equipment, vehicles, trademarks, trade names, licenses, causes of action, rights to payment including tax refund claims, insurance proceeds and commercial tort claims (including, subject to entry of the Final Order, actions for preferences, fraudulent conveyances, and other avoidance power claims and any recoveries under sections 506(c), 542, 544, 545, 547, 548, 549, 550, 552(bSection 364(c)(1) and 553 of the Bankruptcy Code) , shall at all times constitute joint and the proceeds, products, rents and profits of all of the foregoing (all of the foregoing, the "Collateral"), (i) subject only to the Carve-out, the Pre-petition Liens and to any other valid, binding, enforceable, perfected and unavoidable Liens of record (other than the Liens securing the obligations outstanding under the NUF Loan Documents) existing several allowed administrative expense claims in the Collateral on the Petition Date and Liens permitted pursuant to clause (d) of Section 8.2 (Liens, Etc.) and (ii) senior and superior pursuant to section 364(d) of the Bankruptcy Code to the Liens securing the obligations outstanding under the NUF Loan Documents. Except as expressly set forth in the Bankruptcy Orders, the Liens granted in the Bankruptcy Orders and hereunder shall not be (i) subject to any Lien which is avoided and preserved for the benefit of the Borrower's and each Guarantor's estates under section 551 of the Bankruptcy Code or (ii) subordinated to or made pari passu with any other Lien under section 364(d) of the Bankruptcy Code or otherwise. In addition, the Secured Obligations shall have Cases having priority in all of the Cases in accordance with the provisions of section 364(c)(l) of the Bankruptcy Code over all administrative expenses of the kind specified in section Sections 503(b) or 507(b) of the Bankruptcy Code Code; ("Superpriority")ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject only to shall at all times be secured by (1) a perfected first priority Lien in favor of the Carve-out. Except Collateral Agent for the Carve-out, no costs or administrative expenses which have been or may be incurred in any benefit of the Cases, in any conversion Tranche A Lenders and the Tranche B Lenders on all tangible and intangible property (excluding the Tranche C Priority Collateral) of the Borrower's and each Guarantor's the Guarantors' respective estates in the Cases pursuant that is not subject to section 1112 valid, perfected and non-avoidable liens in existence as of the Bankruptcy Code, or in any other proceeding related thereto, and no priority ClaimsFiling Date, including, without limitation, unencumbered aircraft, spare engines, spare parts inventory, accounts receivable, general intangibles (including, without limitation, all rights to receive the equity value of property subject to Liens referred to in Section 6.01(i) and Permitted Liens after the payment in full of the Indebtedness secured by such Liens), Routes, Slots, QEC Kits, Flight Simulators, Supporting Route Facilities, Gate Leaseholds, Foreign Slots (to the extent that the grant of a Lien on such Supporting Route Facilities, Gate Leaseholds and/or Foreign Slots is permitted by applicable law, it being understood that in any event the Lien described in this clause shall extend to the proceeds of any disposition of any such Supporting Route Facilities, Gate Leaseholds and/or Foreign Slots), trademarks, tradenames, inventory, leasehold interests (including, without limitation, leasehold interests in hangars and parts depots) and other Superpriority Claimsproperty, plant and equipment of, and debt and equity investments by, the Borrower and the Guarantors, and on all cash maintained in the Letter of Credit Account and any direct investments of the funds contained therein [(excluding]and (2) a perfected first priority Lien in favor of the Tranche C Collateral Agent for the benefit of the Tranche C Lenders on the Tranche C Priority Collateral (excluding in each case, (v) the Avoidance Actions (it being understood that, notwithstanding such exclusion, the proceeds of such actions shall be available to repay the Obligations), (w) the Escrow Accounts (it being understood that, notwithstanding such exclusion, the Borrower's and any applicable Guarantor's rights to receive any excess funds remaining in the Escrow Accounts following the payment in full of the taxes, fees and charges payable from such Escrow Accounts shall be subject to the first priority Lien described in this clause), (x) the Section 1110 Assets and any Acquired 1110 Assets pledged as security for Permitted Aircraft Financing, (y) that certain parcel of real property referred to in clause (xxi) of Section 6.01 of the Credit Agreement and (z) interests of the Borrower and any Guarantor in the joint ventures set forth on Schedule A (but only to the extent that applicable law does not permit an assignment of such interests, it being understood that in any event the Lien described in this clause shall extend to the proceeds of any disposition of any such joint venture interests and all distributions thereon)), and (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by (1) a perfected Lien [upon]in favor of the Collateral Agent for the benefit of the Tranche A Lenders and the Tranche B Lenders upon the Tranche C Priority Collateral (junior only to the Lien granted in favor of the Tranche C Collateral Agent) and all tangible and intangible property of the Borrower and the Guarantors' respective estates in the Cases that is subject to valid, perfected and non-avoidable Liens in existence on the Filing Date, to valid Liens in existence on the Filing Date that are perfected subsequent to the Filing Date as permitted by Section 546(b) of the Bankruptcy Code (other than the Section 1110 Assets) or will be to Permitted Liens, junior to such valid and perfected Liens[, subject] and (2) a perfected Lien in favor of the Tranche C Collateral Agent for the benefit of the Tranche C Lenders immediately junior to the Liens granted to the Collateral Agent pursuant to Sections 364(c)(2) and 364(c)(3) of the Bankruptcy Code in the assets described in subparagraphs (ii)(1) and (iii)(1) of this Section 2.23(a), subject in each case only to (x) in the event of the occurrence and during the continuance of an Event of Default, the payment of allowed and unpaid professional fees and disbursements incurred or accrued by the Borrower, the Guarantors and any statutory committees appointed in the Cases in an aggregate amount not in excess of $35,000,000 (plus all unpaid professional fees and disbursements accrued or incurred prior to the occurrence of an Event of Default and reflected on the most recent Borrowing Base Certificate, or on a parity with otherwise reported in writing to the Agents, to the extent allowed by the Bankruptcy Court at any time) and (iy) Claims the payment of unpaid fees pursuant to 28 U.S.C. Section 1930 and to the Clerk of the Bankruptcy Court ((x) and (y) collectively, the "Carve-Out"), provided, that, no portion of the Carve-Out shall be utilized to fund prosecution or assertion of any claims against the Agents, the Tranche C Agent, the Lenders, the Paying Agent, the Collateral Agent, the Tranche C Collateral Agent or Fronting Bank (it being understood that, in the event of the liquidation of the Borrower's and the Guarantors' estates the amount of the Carve-Out shall be funded into a segregated account prior to the making of the distributions). The Lenders agree that so long as no Event of Default shall have occurred and be continuing, the Borrower and the Guarantors shall be permitted to pay compensation and reimbursement of fees and expenses allowed and payable under 11 U.S.C. SectionSection 321, 330 and 331, as the same may be due and payable, and the same shall not reduce the Carve-Out. Subject to the priorities set forth in subsection (a) above and in Section 11 and to the Carve-Out, as to all real property the title to which is held by the Borrower or any of the Guarantors, or the other Secured Parties against possession of which is held by the Borrower or any of the Guarantors pursuant to leasehold interest, the Borrower and each Guarantor arising out hereby assigns and conveys as security, grants a security interest in, hypothecates, mortgages, pledges and sets over, first, unto the Collateral Agent on behalf of the Secured Obligations or any provision Tranche A Lenders and the Tranche B Lenders and, second, the Tranche C Collateral Agent on behalf of Bankruptcy Order or (ii) Liens granted herein the Tranche C Lenders all of the right, title and interest of the Borrower and such Guarantor in all of such owned real property and in all such leasehold interests, together in each case with all of the other Loan Documents right, title and interest of the Borrower and such Guarantor in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. The Borrower and each Guarantor acknowledges that, pursuant to the CollateralOrders, the Liens in favor of the Collateral Agent on behalf of the Tranche A Lenders and the Tranche B Lenders and in favor of the Tranche C Collateral Agent on behalf of the Tranche C Lenders in all of such real property and leasehold instruments (limited, in the case of leasehold interests, to the proceeds received upon any sale, disposition or termination thereof) shall be perfected without the recordation of any instruments of mortgage or assignment. The Borrower and each Guarantor further agrees that, upon the request of either Agent (in consultation with the other Agent) or the Tranche C Agent, the Borrower and such Guarantor shall enter into separate fee or leasehold mortgages in recordable form with respect to such properties on terms reasonably satisfactory to the Agents or the Tranche C Agent.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Guaranty Agreement (Ual Corp /De/)
Priority and Liens. Each of the (a) The Borrower and each Guarantor of the Guarantors hereby covenants, represents and warrantswarrants that, upon entry of the Interim Order (and the Final Order, as security for all Secured applicable), the Obligations which may now or from time to time hereafter be owing by of the Borrower and the Guarantor Guarantors hereunder and under the Loan Documents and in respect of Indebtedness permitted by Section 6.03(vi): (i) pursuant to the Secured Parties, and each hereby grants to the Administrative Agent for the sole benefit of the Secured Parties a valid, binding, enforceable and perfected Lien in the Collateral, including without limitation all currently owned or hereafter acquired property and assets of the Borrower and each Guarantor of any kind or nature, whether real or personal, tangible or intangible, wherever located, now owned or hereafter acquired or arising and all proceeds, products, rents and profits thereof, including, without limitation, all cash (including all cash collateral, wherever held), goods, accounts receivable, inventory, cash-in-advance deposits, real estate, machinery, equipment, vehicles, trademarks, trade names, licenses, causes of action, rights to payment including tax refund claims, insurance proceeds and commercial tort claims (including, subject to entry of the Final Order, actions for preferences, fraudulent conveyances, and other avoidance power claims and any recoveries under sections 506(c), 542, 544, 545, 547, 548, 549, 550, 552(bSection 364(c)(1) and 553 of the Bankruptcy Code) and the proceeds, products, rents and profits of shall at all of the foregoing (all of the foregoing, the "Collateral"), (i) subject only to the Carve-out, the Pre-petition Liens and to any other valid, binding, enforceable, perfected and unavoidable Liens of record (other than the Liens securing the obligations outstanding under the NUF Loan Documents) existing times constitute allowed administrative expense claims in the Collateral on the Petition Date and Liens permitted pursuant to clause (d) of Section 8.2 (Liens, Etc.) and (ii) senior and superior pursuant to section 364(d) of the Bankruptcy Code to the Liens securing the obligations outstanding under the NUF Loan Documents. Except as expressly set forth in the Bankruptcy Orders, the Liens granted in the Bankruptcy Orders and hereunder shall not be (i) subject to any Lien which is avoided and preserved for the benefit of the Borrower's and each Guarantor's estates under section 551 of the Bankruptcy Code or (ii) subordinated to or made pari passu with any other Lien under section 364(d) of the Bankruptcy Code or otherwise. In addition, the Secured Obligations shall have Cases having priority in all of the Cases in accordance with the provisions of section 364(c)(l) of the Bankruptcy Code over all administrative expenses of the kind specified in section Sections 503(b) or 507(b) of the Bankruptcy Code Code; ("Superpriority"), subject only to the Carve-out. Except for the Carve-out, no costs or administrative expenses which have been or may be incurred in any of the Cases, in any conversion of the Borrower's and each Guarantor's Cases ii) pursuant to section 1112 Section 364(c)(2) of the Bankruptcy Code, or shall at all times be secured by a perfected first priority Lien on all unencumbered property of the Borrower and the Guarantors' respective estates in any other proceeding related thereto, and no priority Claimsthe Cases, including, without limitation, all accounts receivable and inventory of the Borrower and Guarantors (excluding the Borrower's and the Guarantors' rights in respect of avoidance actions under the Bankruptcy Code, but not excluding the proceeds of such causes of action (including, without limitation, assets as to which liens are avoided) which proceeds shall be subject to the liens under Section 364(c)(2) of the Bankruptcy Code and available to repay the Loans and all other obligations under the Agreement) and on all cash maintained in the Letter of Credit Account and any direct investments of the funds contained therein; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a perfected Lien upon all property of the Borrower and the Guarantors (other Superpriority Claimsthan the property that is subject to existing Liens that presently secure the obligations of the Borrower and the Guarantors under the Existing Agreement, are or as to which the Lien in favor of the Agent and the Banks will be prior as described in clause (iv) of this sentence) that is subject to valid, perfected and non-avoidable Liens in existence on the Filing Date or to valid Liens in existence on a parity with the (iFiling Date that are perfected subsequent to the Filing Date as permitted by Section 546(b) Claims of the AgentsBankruptcy Code or to Permitted Liens, junior to such valid, perfected and non-avoidable Liens; and (iv) pursuant to Section 364(d)(1) of the Lenders or Bankruptcy Code, shall be secured by a perfected first priority, senior priming Lien on all of the tangible and intangible property of the Borrower and the Guarantors (including without limitation, accounts receivable, inventory, patents, copyrights, trademarks, tradenames and all other Secured Parties against intellectual property, and the capital stock of all direct subsidiaries of the Borrower and each Guarantor arising out and the proceeds thereof) that is subject to existing Liens that presently secure the Borrower's and the Guarantors' pre-petition Indebtedness under the Existing Agreement (but subject to any Liens in existence on the Filing Date to which the Liens being primed hereby are subject or become subject subsequent to the Filing Date as permitted by Section 546(b) of the Secured Obligations or Bankruptcy Code) and any provision Liens granted after the Filing Date to provide adequate protection in respect of Bankruptcy Order the Existing Agreement, senior to all of such Liens, provided, however, the Borrower shall not be required to pledge to the Agent (i) the membership interests in and/or the capital stock of Nano-Tex owned by it or (ii) Liens granted herein in excess of 65% of the capital stock of its foreign Subsidiaries; subject only to (x) in the event of the occurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both, the payment of allowed and unpaid professional fees and disbursements incurred by the Borrower, the Guarantors and any statutory committees appointed in the Cases in an aggregate amount not in excess of $3,000,000 (plus all unpaid professional fees and disbursements incurred prior to the occurrence of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both to the extent allowed by the Bankruptcy Court at any time) and (y) the payment of unpaid fees pursuant to 28 U.S.C. ss. 1930 and to the Clerk of the Bankruptcy Court (collectively, the "Carve-Out"), provided that, except as otherwise provided in the Orders, no portion of the Carve-Out shall be utilized for the payment of professional fees and disbursements incurred in connection with any challenge to the amount, extent, priority, validity, perfection or enforcement of the indebtedness of the Borrower and the Guarantors owing to the Existing Lenders or to the collateral securing such indebtedness. The Banks agree that so long as no Event of Default or event which with the giving of notice or lapse of time or both would constitute an Event of Default shall have occurred, the Borrower and the Guarantors shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. ss. 330 and 11 U.S.C. ss. 331, as the same may be due and payable, and the same shall not reduce the Carve-Out.
(b) Subject to the priorities set forth in subsection (a) above and to the Carve-Out, as to all real property the title to which is held by the Borrower or any of the Guarantors, or the possession of which is held by the Borrower or any of the Guarantors pursuant to leasehold interest and which secures the obligations under the Existing Agreement, the Borrower and each Guarantor hereby assigns and conveys as security, grants a security interest in, hypothecates, mortgages, pledges and sets over unto the Agent on behalf of the Banks all of the right, title and interest of the Borrower and such Guarantor in all of such owned real property and in all such leasehold interests, together in each case with all of the other Loan Documents right, title and interest of the Borrower and such Guarantor in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. The Borrower and each Guarantor acknowledges that, pursuant to the CollateralOrders, the Liens in favor of the Agent on behalf of the Banks in all of such real property and leasehold instruments shall be perfected without the recordation of any instruments of mortgage or assignment. The Borrower and each Guarantor further agree that, upon the reasonable request of the Agent, the Borrower and such Guarantor shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms reasonably satisfactory to the Agent.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Burlington Industries Inc /De/)
Priority and Liens. Each of (a) Subject to the Orders and the Security and Pledge Agreement, the Borrower and each Guarantor of the Guarantors hereby covenants, represents and warrantswarrants that, upon entry of the Interim Order (and the Final Order, as security for all applicable), the Obligations and the other Secured Obligations which may now or from time to time hereafter be owing by (including the obligations of the Borrower and the Guarantor Guarantors in respect of any hedging obligations permitted hereunder and Indebtedness permitted by Section 6.03(viii), in each case owing to JPMCB, any other Lender or any of their respective banking Affiliates) and subject, in each of clauses (i) through (iv) below, to the Secured Parties, and each hereby grants Carve-Out:
(i) pursuant to the Administrative Agent for the sole benefit of the Secured Parties a valid, binding, enforceable and perfected Lien in the Collateral, including without limitation all currently owned or hereafter acquired property and assets of the Borrower and each Guarantor of any kind or nature, whether real or personal, tangible or intangible, wherever located, now owned or hereafter acquired or arising and all proceeds, products, rents and profits thereof, including, without limitation, all cash (including all cash collateral, wherever held), goods, accounts receivable, inventory, cash-in-advance deposits, real estate, machinery, equipment, vehicles, trademarks, trade names, licenses, causes of action, rights to payment including tax refund claims, insurance proceeds and commercial tort claims (including, subject to entry of the Final Order, actions for preferences, fraudulent conveyances, and other avoidance power claims and any recoveries under sections 506(c), 542, 544, 545, 547, 548, 549, 550, 552(bSection 364(c)(1) and 553 of the Bankruptcy Code, shall at all times constitute allowed claims in the Cases having priority over any and all administrative expenses, diminution claims (including the Superpriority Claims granted to the Existing Lenders) and all other claims against the proceedsBorrower and the Guarantors, productsnow existing or hereafter arising, rents and profits of all of the foregoing (all of the foregoingany kind whatsoever, the "Collateral"), (i) subject only to the Carve-out, the Pre-petition Liens and to any other valid, binding, enforceable, perfected and unavoidable Liens of record (other than the Liens securing the obligations outstanding under the NUF Loan Documents) existing in the Collateral on the Petition Date and Liens permitted pursuant to clause (d) of Section 8.2 (Liens, Etc.) and (ii) senior and superior pursuant to section 364(d) of the Bankruptcy Code to the Liens securing the obligations outstanding under the NUF Loan Documents. Except as expressly set forth in the Bankruptcy Orders, the Liens granted in the Bankruptcy Orders and hereunder shall not be (i) subject to any Lien which is avoided and preserved for the benefit of the Borrower's and each Guarantor's estates under section 551 of the Bankruptcy Code or (ii) subordinated to or made pari passu with any other Lien under section 364(d) of the Bankruptcy Code or otherwise. In addition, the Secured Obligations shall have priority in all of the Cases in accordance with the provisions of section 364(c)(l) of the Bankruptcy Code over including all administrative expenses of the kind specified in section Sections 503(b) or 507(b) of the Bankruptcy Code Code;
("Superpriority"), subject only to the Carve-out. Except for the Carve-out, no costs or administrative expenses which have been or may be incurred in any of the Cases, in any conversion of the Borrower's and each Guarantor's Cases ii) pursuant to section 1112 Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable and fully-perfected first priority senior security interest in and Lien on all tangible and intangible property of the Borrower’s and the Guarantors’ respective estates in the Cases that is not subject to valid, perfected, non-avoidable and enforceable Liens in existence as of the Filing Date or valid Liens in existence on the Filing Date that are perfected subsequent to such date to the extent permitted by Section 546(b) of the Bankruptcy Code, including all present and future accounts receivable, inventory, general intangibles, chattel paper, real property, leaseholds, fixtures, machinery and equipment, deposit accounts, patents, copyrights, trademarks, tradenames, rights under license agreements and other intellectual property, capital stock of any Subsidiaries of the Borrower and Guarantors and on all cash and investments maintained in the Letter of Credit Account (but excluding (x) the Borrower’s and the Guarantors’ rights in respect of avoidance actions under the Bankruptcy Code and (y) joint venture interests with respect to which a valid prohibition on pledging such interests or granting Liens thereon exists, it being understood that, notwithstanding such exclusion of such interests, the proceeds of such interests shall be subject to such liens under Section 364(c)(2) of the Bankruptcy Code and available to satisfy the Obligations and the other proceeding related theretoSecured Obligations);
(iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by valid, binding, continuing, enforceable and no priority Claimsfully-perfected security interests in and Liens upon all tangible and intangible property of the Borrower and the Guarantors (provided that as set forth in clause (iv) of this sentence, including, without limitation, any other Superpriority Claims, are or the existing Liens that presently secure the obligations of the Borrower and the Existing Guarantors under the Existing Agreement will be prior to or on a parity with primed by the (i) Claims Lien in favor of the AgentsAdministrative Agent and the Lenders as described in clause (iv) of this sentence) that is subject to valid, perfected and non-avoidable Liens in existence on the Filing Date or that is subject to valid Liens in existence on the Filing Date that are perfected subsequent to the Filing Date as permitted by Section 546(b) of the Bankruptcy Code (other than the property referred to in clause (iv) below that is subject to the existing Liens described in clause (iv) below, as to which the Lien in favor of the Administrative Agent and the Lenders will be as described in clause (iv) below), junior to such valid, perfected and non-avoidable Liens; and
(iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable and fully-perfected first priority senior priming security interest in and senior priming Lien on all of the tangible and intangible property of the Borrower and the Guarantors that is subject to existing Liens that presently secure Borrower’s and the Existing Guarantors’ pre-petition Indebtedness under the Existing Agreement (but subject and subordinate to (A) the Carve-Out and (B) any Liens in existence on the Filing Date to which the Liens being primed hereby are subject or become subject subsequent to the Filing Date as permitted by Section 546(b) of the Bankruptcy Code), senior to all of such Liens; provided, however, that (w) the Borrower and the Guarantors shall not be required to pledge to the Administrative Agent in excess of 65% of the voting capital stock of its direct Foreign Subsidiaries or any of the capital stock or interests of its indirect Foreign Subsidiaries (if, in the good faith judgment of the Borrower, adverse tax consequences would result to the Borrower), (x) no portion of the Carve-Out may be utilized to fund prosecution or assertion of any claims against the Administrative Agent, the Lenders or the other Secured Parties against Issuing Lenders, (y) following the Termination Date, amounts in the Letter of Credit Account shall not be subject to the Carve-Out and (z) except as otherwise provided in the Orders, no portion of the Carve-Out shall be utilized for the payment of professional fees and disbursements incurred in connection with any challenge to the amount, extent, priority, validity, perfection or enforcement of the indebtedness of the Borrower and the Guarantors owing to the Existing Lenders or to the collateral securing such indebtedness. The Lenders agree that so long as no Event of Default shall have occurred and be continuing, the Borrower and the Guarantors shall be permitted to pay compensation and reimbursement of expenses allowed and payable under Sections 330 and 331 of title 11 of the United States Code, as the same may be due and payable, and the same shall not reduce the Carve-Out.
(b) Subject to the priorities set forth in subsection (a) above and to the Carve-Out, as to all real property the title to which is held by the Borrower or any of the Guarantors, or the possession of which is held by the Borrower or any of the Guarantors pursuant to leasehold interests and which secures the Existing Indebtedness, the Borrower and each Guarantor arising out hereby assigns and conveys as security, grants a security interest in, hypothecates, mortgages, pledges and sets over unto the Administrative Agent on behalf of the Secured Obligations or any provision Lenders all of Bankruptcy Order or (ii) Liens granted herein the right, title and interest of the Borrower and such Guarantor in all of such owned real property and in all such leasehold interests, together in each case with all of the other Loan Documents right, title and interest of the Borrower and such Guarantor in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. The Borrower and each Guarantor acknowledges that, pursuant to the CollateralOrders, the Liens in favor of the Administrative Agent on behalf of the Lenders in all of such real property and leasehold instruments shall be perfected without the recordation of any instruments of mortgage or assignment. The Borrower and each Guarantor further agrees that, upon the request of the Administrative Agent following the occurrence of an Event of Default (regardless of whether such Event of Default is continuing), the Borrower and such Guarantor shall enter into separate fee or leasehold mortgages in recordable form with respect to such properties on terms reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Guaranty Agreement (Delphi Corp)
Priority and Liens. (a) The Obligations shall be secured by Liens under Sections 364(c)(2) and (d)(1) of the Bankruptcy Code, senior to all other Liens (subject to subsection 2.5(d)), regardless of when the Liens were obtained and regardless of their previous priority, in all of the Collateral. The Obligations shall be senior to the DIP Obligations to the Lenders (as defined in the Interim Order) in connection with the Deemed DIP Loans.
(b) As to all Collateral, each of the Borrowers, subject to the Carve-Out, hereby assigns and conveys as security, grants a security interest in, hypothecates, mortgages, pledges and sets over unto the Agent, for the benefit of the Agent and the Lenders, all of the right, title and interest of such Borrower in all of such Collateral. Each of the Borrower and each Guarantor hereby covenantsBorrowers acknowledges that, represents and warrants, as security for all Secured Obligations which may now or from time to time hereafter be owing by the Borrower and the Guarantor pursuant to the Secured PartiesOrders, and each hereby grants to the Administrative Agent Liens granted in favor of the Agent, for the sole benefit of the Secured Parties a validAgent and the Lenders, bindingin all of the Collateral shall be perfected without the recordation of any Uniform Commercial Code financing statements, enforceable notices of Lien, Mortgages, or other instruments of mortgage or assignment. Each Borrower further agrees that if requested by the Agent, or required by the Loan Documents, the Borrowers shall enter into separate security agreements, pledge agreements and perfected Lien fee and leasehold mortgages with respect to such Collateral on terms satisfactory to the Agent.
(c) The Obligations shall have the status in the Collateral, including without limitation all currently owned or hereafter acquired property and assets Bankruptcy Cases of superpriority administrative expenses under Section 364(c)(1) of the Borrower Bankruptcy Code. Subject to the Carve-Out, such administrative claims shall have priority over all other claims, costs and each Guarantor expenses of the kinds specified in, or ordered pursuant to, Sections 105, 326, 328, 330, 331, 503(b), 506(c), 507(a), 507(b), 546(c), 726 or 1112 or any other provision of the Bankruptcy Code and shall at all times be senior to the rights of any kind Borrower, any Borrower's estate, and any successor trustee or natureestate representative in the Bankruptcy Cases or any subsequent proceeding or case under the Bankruptcy Code.
(d) The Liens on the Collateral under Sections 364(c)(2) and (d)(1) of the Bankruptcy Code, whether real for the benefit of Agent and Lenders, and the superpriority administrative claim under Section 364(c)(1) of the Bankruptcy Code afforded the Obligations, shall be subject to the following: (i)
(A) the unpaid fees due and payable to the Clerk of the Court and the U.S. Trustee pursuant to 28 ▇.▇.▇.▇▇. 1930, and (B) allowed, unpaid claims for fees and expenses incurred by professionals retained pursuant to an order of the Bankruptcy Court prior to the occurrence of an Event of Default (as defined in the Commitment Letter) not to exceed $1,000,000 in the aggregate (the "Carve-Out"), other than fees and expenses incurred, directly or personalindirectly, tangible or intangiblein respect of, wherever located, now owned or hereafter acquired relating to or arising and all proceedsfrom the investigation, products, rents and profits thereof, including, without limitation, all cash (including all cash collateral, wherever held), goods, accounts receivable, inventory, cash-in-advance deposits, real estate, machinery, equipment, vehicles, trademarks, trade names, licenses, causes initiation or prosecution of action, rights to payment including tax refund claims, insurance proceeds and commercial tort claims (including, subject to entry of the Final Order, actions any action for preferences, fraudulent conveyances, and other avoidance power subordination or claims and any recoveries under sections 506(c), 542, 544, 545, 547, 548, 549, 550, 552(bor causes of action against the Agent (as defined in the Interim Order) and 553 of or Lenders (as defined in the Bankruptcy CodeInterim Order) and the proceeds, products, rents and profits of all of the foregoing (all of the foregoing, the "Collateral"), (i) subject only with respect to the Carve-outPrepetition Indebtedness or the DIP Obligations, the Pre-petition Liens and to any other valid, binding, enforceable, perfected and unavoidable Liens of record (other than the Liens securing the obligations outstanding under the NUF Loan Documents) existing in the Collateral on the Petition Date and Liens permitted pursuant to clause (d) of Section 8.2 (Liens, Etc.) and (ii) senior existing validly perfected liens that were Permitted Liens (as defined in the Existing Credit Agreement but not including Permitted Liens under subsection 9.3(h) thereof) under the Existing Credit Agreement; provided, that any payments actually made to such professionals under Sections 330, 331 and superior pursuant 503 of the Bankruptcy Code in respect of fees and expenses incurred or accrued (x) prior to section 364(dthe occurrence of an Event of Default, shall not reduce the Carve-Out and (y) from and after the occurrence of an Event of Default, shall reduce Dollar-for-Dollar the Carve-Out; provided, further, that in no event shall any of the Carve-Out (A) be utilized to prosecute or cause to be prosecuted any such claims, causes of action, actions or proceedings against any Agent or Lender, (B) be paid from amounts on deposit in the Collateral Account or (C) include any fees or expenses arising after the conversion of a Bankruptcy Case under Chapter 11 of the Bankruptcy Code to the Liens securing the obligations outstanding a case under the NUF Loan Documents. Except as expressly set forth in Chapter 7 of the Bankruptcy OrdersCode.
(e) Notwithstanding the foregoing, the Liens granted in Borrowers shall be permitted to pay, as the Bankruptcy Orders same may become due and hereunder shall not be payable (i) subject to any Lien which is avoided and preserved for the benefit of the Borrower's and each Guarantor's estates under section 551 of the Bankruptcy Code or (ii) subordinated to or made pari passu with any other Lien under section 364(d) of the Bankruptcy Code or otherwise. In addition, the Secured Obligations shall have priority in all of the Cases in accordance with the provisions of section 364(c)(l) of the Bankruptcy Code over all administrative expenses of the kind specified in section Section 503(b) or 507(b) of the Bankruptcy Code incurred in the ordinary course of their businesses, ("Superpriority"), ii) subject only to the Carve-outprovisions of the Interim Order, the Final Order, and this subsection 2.5 and provided that no Event of Default has occurred and is continuing, compensation and reimbursement of expenses to professionals allowed by the Bankruptcy Court and payable under Sections 330 and 331 of the Bankruptcy Code, and (iii) any other Prepetition or Postpetition expenses of the Borrowers, including adequate protection payments, to the extent approved by the Bankruptcy Court and not otherwise prohibited by the terms of this Agreement or the other Loan Documents. Except for the Carve-outOut, no costs or administrative expenses which have been of administration shall be imposed against Agent and Lenders or may be incurred in any of the CasesCollateral under Sections 105, in any conversion of the Borrower's and each Guarantor's Cases pursuant to section 1112 506(c) or 552 of the Bankruptcy Code, or in any other proceeding related thereto, and no priority Claims, including, without limitation, any other Superpriority Claims, are or will be prior to or on a parity with the (i) Claims of the Agents, the Lenders or the other Secured Parties against the Borrower and each Guarantor arising out of the Secured Obligations or any provision of Bankruptcy Order or (ii) Liens granted herein and in the other Loan Documents in and to the Collateralotherwise.
Appears in 1 contract
Sources: Postpetition Credit Agreement (Special Metals Corp)
Priority and Liens. (a) Each of the Borrower and each Guarantor Loan Parties hereby covenants, represents and warrantswarrants that, upon entry of the applicable DIP Order noted below and the delivery and execution of this Agreement, the Obligations of the Loan Parties under the Loan Documents shall at all times:
(i) Upon entry of the Interim Order, pursuant to section 364(c)(1) of the Bankruptcy Code, be entitled to joint and several super-priority administrative expense claims status in the Bankruptcy Cases, subject only to the Carve-Out;
(ii) pursuant to sections 364(d)(i) and (c)(2) of the Bankruptcy Code, be secured by (x) upon entry of the Final Order, to the extent, and only to the extent of, Obligations not to exceed $70,000,000, a perfected first priority “priming” liens on the Prepetition Collateral (other than Permitted Priority Liens), subject in all respects to Section 12 of the Seventh Amendment to the Existing First Lien Credit Agreement, dated as of November 30, 2015 and to repayment in full of the Obligations, as security for defined and under, the Existing First Lien Credit Agreement and (y) upon entry of the Interim Order, a perfected first priority Lien on all Secured Obligations which may now or from time Collateral that is not subject to time hereafter be owing by the Borrower and the Guarantor to the Secured Partiesvalid, perfected, and each hereby grants to the Administrative Agent for the sole benefit non-avoidable liens as of the Secured Parties a valid, binding, enforceable and perfected Lien in the Collateral, including without limitation all currently owned or hereafter acquired property and assets of the Borrower and each Guarantor of any kind or nature, whether real or personal, tangible or intangible, wherever located, now owned or hereafter acquired or arising and all proceeds, products, rents and profits thereof, including, without limitation, all cash (including all cash collateral, wherever held), goods, accounts receivable, inventory, cash-in-advance deposits, real estate, machinery, equipment, vehicles, trademarks, trade names, licenses, causes of action, rights to payment including tax refund claims, insurance proceeds and commercial tort claims Petition Date (including, subject to entry of the Final Order, actions Equity Interests in EHH owned by any Loan Party, to the extent that necessary consents are obtained for preferences, fraudulent conveyancesthe pledge of such Equity Interests, and other avoidance power claims and any recoveries under sections 506(call proceeds thereof), 542in each case, 544, 545, 547, 548, 549, 550, 552(b) and 553 of the Bankruptcy Code) and the proceeds, products, rents and profits of all of the foregoing (all of the foregoing, the "Collateral"), (i) subject only to the Carve-outOut; and
(iii) upon entry of the Interim Order, the Pre-petition Liens and to any other valid, binding, enforceable, perfected and unavoidable Liens of record (other than the Liens securing the obligations outstanding under the NUF Loan Documents) existing in the Collateral on the Petition Date and Liens permitted pursuant to clause (d) of Section 8.2 (Liens, Etc.) and (ii) senior and superior pursuant to section 364(d364(c)(3) of the Bankruptcy Code and except as provided in Section 2.23(a)(ii)(x), be secured by a perfected Lien on all Prepetition Collateral, subject to the Carve-Out and subject to (w) Liens on Prepetition Collateral securing the obligations outstanding under the NUF Loan Documents. Except as expressly set forth Existing Second Lien Credit Agreement and Existing Other Secured Debt, (x) valid Liens in existence on the Bankruptcy OrdersPetition Date with respect to each Debtor, the Liens granted in the Bankruptcy Orders and hereunder shall not be (i) subject to any Lien which is avoided and preserved for the benefit of the Borrower's and each Guarantor's estates under section 551 of the Bankruptcy Code or (iiy) subordinated valid Liens that are perfected subsequent to or made pari passu with any other Lien under the Petition Date as permitted by section 364(d546(b) of the Bankruptcy Code or otherwiseCode. In additionthe case of clauses (i), the Secured Obligations (ii) and (iii) above, such Liens shall have priority in all of the Cases in accordance with the provisions of section 364(c)(l) of the Bankruptcy Code over be senior to all administrative expenses of the kind specified in section sections 503(b) or and 507(b) of the Bankruptcy Code ("Superpriority")Code, subject only to the Carve-out.
(b) All of the Liens described in this Section 2.23 shall be effective and perfected upon entry of the Interim Order or Final Order, as applicable, without the necessity of the execution, recordation of filings by the Debtors of mortgages, security agreements, control agreements, pledge agreements, financing statements or other similar documents or notices, or the possession, control or other acts by any Agent of, or over, any Collateral, as set forth in the Interim Order or Final Order, as applicable. Except for The Lenders, or the Carve-outCollateral Agent on behalf of the Lenders, no costs shall be permitted, but not required, to make any filings, deliver any notices or administrative expenses which have been or take any other acts as may be incurred desirable under state law in any order to reflect the perfection and priority of the CasesLenders’ claims described herein
(c) Subject in all respects to the priorities set forth in Section 2.23(a) above, in any conversion the Loan Parties hereby grant to the Collateral Agent on behalf of the Borrower's Secured Parties a security interest in, and each Guarantor's Cases pursuant to section 1112 mortgage on, all of the Bankruptcy Coderight, title and interest of the Loan Parties in all real Property owned or leased by the Loan Parties, together in any other proceeding each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and no priority Claimsall proceeds thereof. The Loan Parties hereby acknowledge that, includingpursuant to the DIP Order, without limitation, any other Superpriority Claims, are or will be prior to or on a parity with the (i) Claims Liens in favor of the Agents, Collateral Agent on behalf of the Lenders Secured Parties in all of such real Property owned or leased by the Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment and the Collateral Agent and the other Secured Parties against shall have the Borrower and each Guarantor arising out benefits of the Secured Obligations or any provision of Bankruptcy Order or (ii) Liens granted herein and in the other Loan Documents in and to the CollateralDIP Orders.
Appears in 1 contract
Priority and Liens. Each of the Borrower and each Guarantor Debtor hereby covenants, represents and warrantswarrants that, upon entry of the Interim Order, such Debtor shall provide, as security for all Secured Obligations which may now or from time to time hereafter be owing by the Borrower and the Guarantor to the Secured Parties, and each hereby grants to the Administrative Agent for the sole benefit Debtors' repayment of the Secured Parties a valid, binding, enforceable Post-Petition Obligations ▇▇▇▇▇▇▇▇▇ and perfected Lien in under the Collateral, including without limitation all currently owned or hereafter acquired property and assets of the Borrower and each Guarantor of any kind or nature, whether real or personal, tangible or intangible, wherever located, now owned or hereafter acquired or arising and all proceeds, products, rents and profits thereof, including, without limitation, all cash (including all cash collateral, wherever held), goods, accounts receivable, inventory, cashother Post-in-advance deposits, real estate, machinery, equipment, vehicles, trademarks, trade names, licenses, causes of action, rights to payment including tax refund claims, insurance proceeds and commercial tort claims (including, subject to entry of the Final Order, actions for preferences, fraudulent conveyances, and other avoidance power claims and any recoveries under sections 506(c), 542, 544, 545, 547, 548, 549, 550, 552(b) and 553 of the Bankruptcy Code) and the proceeds, products, rents and profits of all of the foregoing (all of the foregoingPetition Financing Documents, the "Collateral"), following:
(ia) subject only to the Carve-out, the Pre-petition Liens and to any other valid, binding, enforceable, perfected and unavoidable Liens of record (other than the Liens securing the obligations outstanding under the NUF Loan Documents) existing in the Collateral on the Petition Date and Liens permitted pursuant to clause (d) of Section 8.2 (Liens, Etc.) and (ii) senior and superior pursuant to section 364(d) of the Bankruptcy Code to the Liens securing the obligations outstanding under the NUF Loan Documents. Except as expressly set forth in the Bankruptcy Orders, the Liens granted in the Bankruptcy Orders and hereunder shall not be (i) subject to any Lien which is avoided and preserved for the benefit of the Borrower's and each Guarantor's estates under section 551 of the Bankruptcy Code or (ii) subordinated to or made pari passu with any other Lien under section 364(d) of the Bankruptcy Code or otherwise. In addition, the Secured Obligations shall have priority in all of the Cases in accordance with the provisions of section 364(c)(l) of the Bankruptcy Bankptcy Code an administrative expense claim with priority over any and all administrative expenses of the kind specified in section Sections 105, 5516/54415-004 CurrenV11617188v10 Case 08-12180-BLS Doc 12-2 Filed 09/24/08 Entered 09/24/08 07:50:23 Desc Exhibit B-1 Page 18 of 58 326, 328, 364(c)(1), 503(b), 507(a), 507(b) and 762 of the Bankptcy Code or 507(botherwise, but without recourse to the proceeds of any Avoidance Action;
(b) pursuant to Section 364(c)(2) of the Bankruptcy Code Banptcy Code, the Post-Petition Lender is granted a perfected first priority Lien upon all Unencumbered Collateral;
("Superpriority")c) pursuant to Section 364(c)(3) of the Bankptcy Code, subject only a perfected junior Lien upon all Encumbered Collateral, solely to the Carveextent that the Liens on Encumbered Collateral secure Allowed Claims and, to the extent the Liens on Encumbered Collateral secure claims that are not Allowed Claims, the Post-out. Except Petition Lender is granted a perfected first priority Lien upon all such Encumbered Collateral; and
(A) property or assets in which granting of a lien is prohibited under applicable Law or under the terms of any license or other agreement applicable thereto (but solely to the extent that any such restriction is enforceable under applicable Law); provided, however, that notwithstanding the foregoing, the Post-Petition Lender's Liens shall in all cases and circumstances extend to the proceeds, products, rents, cash and profits of any such property or assets; provided, further, however, the Post-Petition Lender's Liens shall extend to any such property or assets in which granting of a Lien is prohibited, automatically upon the expiration of such prohibition, whereupon such property or assets shall be deemed Collateral for the Carve-out, no costs or administrative expenses which have been or may be incurred in any benefit of the Cases, in any conversion of the Borrower's and each Guarantor's Cases pursuant to section 1112 of the Bankruptcy Code, or in any other proceeding related theretoPost-Petition Lender, and no priority Claims, including, without limitation, any other Superpriority Claims, are or will be prior to or on a parity with the (i) Claims of the Agents, the Lenders or the other Secured Parties against the Borrower and each Guarantor arising out of the Secured Obligations or any provision of Bankruptcy Order or (ii) Liens granted herein and in the other Loan Documents in and to the Collateral.B)
Appears in 1 contract
Priority and Liens. Each of the The Borrower and each Guarantor hereby covenants, represents and warrantswarrants that, as security for all Secured Obligations which may now or from time to time hereafter be owing by the Borrower and the Guarantor to the Secured Parties, and each hereby grants to the Administrative Agent for the sole benefit of the Secured Parties a valid, binding, enforceable and perfected Lien in the Collateral, including without limitation all currently owned or hereafter acquired property and assets of the Borrower and each Guarantor of any kind or nature, whether real or personal, tangible or intangible, wherever located, now owned or hereafter acquired or arising and all proceeds, products, rents and profits thereof, including, without limitation, all cash (including all cash collateral, wherever held), goods, accounts receivable, inventory, cash-in-advance deposits, real estate, machinery, equipment, vehicles, trademarks, trade names, licenses, causes of action, rights to payment including tax refund claims, insurance proceeds and commercial tort claims (including, subject to upon entry of the Final Order, actions for preferences, fraudulent conveyances, and other avoidance power claims and any recoveries under sections 506(c), 542, 544, 545, 547, 548, 549, 550, 552(bInterim Order (i) and 553 pursuant to Section 364(c)(1) of the Bankruptcy Code) and , the proceeds, products, rents and profits of all Obligations of the foregoing (all of the foregoing, the "Collateral"), (i) subject only to the Carve-out, the Pre-petition Liens Borrower hereunder and to any other valid, binding, enforceable, perfected and unavoidable Liens of record (other than the Liens securing the obligations outstanding under the NUF other Loan Documents) existing Documents shall at all times constitute allowed administrative expense claims in the Collateral on the Petition Date and Liens permitted pursuant to clause (d) of Section 8.2 (Liens, Etc.) and (ii) senior and superior pursuant to section 364(d) of the Bankruptcy Code to the Liens securing the obligations outstanding under the NUF Loan Documents. Except as expressly set forth in the Bankruptcy Orders, the Liens granted in the Bankruptcy Orders and hereunder shall not be (i) subject to any Lien which is avoided and preserved for the benefit of the Borrower's and each Guarantor's estates under section 551 of the Bankruptcy Code or (ii) subordinated to or made pari passu with any other Lien under section 364(d) of the Bankruptcy Code or otherwise. In addition, the Secured Obligations shall have Case having priority in all of the Cases in accordance with the provisions of section 364(c)(l) of the Bankruptcy Code over all administrative expenses of the kind specified in section Sections 503(b) or 507(b) of the Bankruptcy Code Code, ("Superpriority"), subject only to the Carve-out. Except for the Carve-out, no costs or administrative expenses which have been or may be incurred in any of the Cases, in any conversion of the Borrower's and each Guarantor's Cases ii) pursuant to section 1112 Section 364(c)(2) of the Bankruptcy Code, or in any the Obligations of the Borrower hereunder and under the other proceeding related thereto, and no Loan Documents shall at all times be secured by a perfected first priority Claims, Lien on all unencumbered property of the Borrower (including, without limitation, all After-Acquired Property ) and all cash maintained in the Letter of Credit Account and any direct investments of the funds contained therein, (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, the Obligations of the Borrower hereunder and under the Loan Documents shall be secured by a perfected Lien upon all property of the Borrower (other Superpriority Claimsthan the property that is subject to existing Liens that presently secure the obligations of the Borrower under the Existing Agreements, are or as to which the Lien in favor of the Agent and the Lenders will be prior as described in clause (iv) of this sentence) that is subject to valid and perfected Liens in existence on the Filing Date, junior to such valid and perfected Liens, and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, the Obligations of the Borrower hereunder and under the Loan Documents shall be secured by a perfected first priority, senior priming Lien on all property of the Borrower (including, without limitation, accounts receivable, inventory, equipment, general intangibles, intellectual property and vehicles and the proceeds thereof) that is subject to existing Liens that presently secure the Borrower's pre-petition Indebtedness under the Existing Agreements and any Liens granted after the Filing Date to provide adequate protection in respect of the Existing Agreements, subject in each case, only to, in the event of the occurrence and during the continuance of an Event of Default or on a parity an event that would constitute an Event of Default with the giving of notice or lapse of time or both, (x) the payment of allowed and unpaid professional fees and disbursements thereafter incurred by the Borrower and any statutory committee appointed in the Case in an aggregate amount not in excess of $3,500,000 and (y) the payment of unpaid fees pursuant to 28 U.S.C. ss.1930 (collectively, the "Carve-Out"); provided, that following the Termination Date amounts in the Letter of Credit Account shall not be subject to the Carve-Out and (z) the prior rights (i) Claims of the AgentsCredit Card Banks under the GE Credit Program Documents with respect to certain accounts receivable, the Lenders or the other Secured Parties against the Borrower returned merchandise and each Guarantor arising out of the Secured Obligations or any provision of Bankruptcy Order or general intangibles financed thereunder and (ii) Liens granted herein Commerce under the Commerce Bank Agreement with respect to certain documents, inventory and in related collateral. The Lenders agree that so long as no Event of Default or event which with the other Loan Documents in giving of notice or lapse of time or both would constitute an Event of Default shall have occurred, the Borrower shall be permitted to pay compensation and to reimbursement of expenses allowed and payable under 11 U.S.C. ss. 330 and 11 U.S.C. ss. 331, as the Collateralsame may be due and payable, and the same shall not reduce the Carve-Out.
Appears in 1 contract
Priority and Liens. Each The Borrower and each of the Guarantors hereby ------------------ covenants, represents and warrants that, upon entry of the Interim Order, the Obligations of the Borrower and each Guarantor hereby covenants, represents the Guarantors hereunder and warrants, as security for all Secured Obligations which may now or from time under the Loan Documents and in respect of Indebtedness owed to time hereafter be owing Chase and its banking Affiliates permitted by the Borrower and the Guarantor Section 6.03(vi): (i) pursuant to the Secured Parties, and each hereby grants to the Administrative Agent for the sole benefit of the Secured Parties a valid, binding, enforceable and perfected Lien in the Collateral, including without limitation all currently owned or hereafter acquired property and assets of the Borrower and each Guarantor of any kind or nature, whether real or personal, tangible or intangible, wherever located, now owned or hereafter acquired or arising and all proceeds, products, rents and profits thereof, including, without limitation, all cash (including all cash collateral, wherever held), goods, accounts receivable, inventory, cash-in-advance deposits, real estate, machinery, equipment, vehicles, trademarks, trade names, licenses, causes of action, rights to payment including tax refund claims, insurance proceeds and commercial tort claims (including, subject to entry of the Final Order, actions for preferences, fraudulent conveyances, and other avoidance power claims and any recoveries under sections 506(c), 542, 544, 545, 547, 548, 549, 550, 552(bSection 364(c)(1) and 553 of the Bankruptcy Code) and the proceeds, products, rents and profits of shall at all of the foregoing (all of the foregoing, the "Collateral"), (i) subject only to the Carve-out, the Pre-petition Liens and to any other valid, binding, enforceable, perfected and unavoidable Liens of record (other than the Liens securing the obligations outstanding under the NUF Loan Documents) existing times constitute allowed administrative expense claims in the Collateral on the Petition Date and Liens permitted pursuant to clause (d) of Section 8.2 (Liens, Etc.) and (ii) senior and superior pursuant to section 364(d) of the Bankruptcy Code to the Liens securing the obligations outstanding under the NUF Loan Documents. Except as expressly set forth in the Bankruptcy Orders, the Liens granted in the Bankruptcy Orders and hereunder shall not be (i) subject to any Lien which is avoided and preserved for the benefit of the Borrower's and each Guarantor's estates under section 551 of the Bankruptcy Code or (ii) subordinated to or made pari passu with any other Lien under section 364(d) of the Bankruptcy Code or otherwise. In addition, the Secured Obligations shall have Cases having priority in all of the Cases in accordance with the provisions of section 364(c)(l) of the Bankruptcy Code over all administrative expenses of the kind specified in section Sections 503(b) or 507(b) of the Bankruptcy Code Code; and ("Superpriority"), subject only to the Carve-out. Except for the Carve-out, no costs or administrative expenses which have been or may be incurred in any of the Cases, in any conversion of the Borrower's and each Guarantor's Cases ii) pursuant to section 1112 Section 364(c)(2) of the Bankruptcy Code, or shall at all times be secured by a perfected first priority Lien on all cash maintained in the Letter of Credit Account and any other proceeding related thereto, and no priority Claims, including, without limitation, any other Superpriority Claims, are or will be prior to or on a parity with the (i) Claims direct investments of the Agentsfunds contained therein, subject only to (x) in the event of the occurrence and during the continuance of an Event of Default, the Lenders or payment of allowed and unpaid professional fees and disbursements incurred by the other Secured Parties against Borrower, the Guarantors and any statutory committees appointed in the Cases in an aggregate amount not in excess of $5,000,000 and (y) the payment of unpaid fees pursuant to 28 U.S.C. ss. 1930 and to the Clerk of the Bankruptcy Court (collectively, the "Carve-Out"), provided --------- -------- that following the Termination Date, amounts in the Letter of Credit Account shall not be subject to the Carve-Out. The Banks agree that so long as no Event of Default shall have occurred, the Borrower and each Guarantor arising out the Guarantors shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. ss. 330 and 11 U.S.C. ss. 331, as the Secured Obligations or any provision of Bankruptcy Order or (ii) Liens granted herein same may be due and in payable, and the other Loan Documents in and to same shall not reduce the CollateralCarve-Out.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Armstrong World Industries Inc)
Priority and Liens. Each of (a) Subject to the Approval Order and the Security and Pledge Agreement, the Borrower and each Guarantor of the Guarantors hereby covenants, represents and warrantswarrants that, as security for all upon entry of the Approval Order, the Obligations and the other Secured Obligations which may now or from time to time hereafter be owing by (including the obligations of the Borrower and the Guarantor Guarantors in respect of any hedging obligations permitted hereunder and Indebtedness permitted by Section 6.03(viii), in each case owing to JPMCB, any other Lender or any of their respective banking Affiliates) and subject, in each of clauses (i) through (iv) below, to the Secured Parties, and each hereby grants Carve-Out:
(i) pursuant to the Administrative Agent for the sole benefit of the Secured Parties a valid, binding, enforceable and perfected Lien in the Collateral, including without limitation all currently owned or hereafter acquired property and assets of the Borrower and each Guarantor of any kind or nature, whether real or personal, tangible or intangible, wherever located, now owned or hereafter acquired or arising and all proceeds, products, rents and profits thereof, including, without limitation, all cash (including all cash collateral, wherever held), goods, accounts receivable, inventory, cash-in-advance deposits, real estate, machinery, equipment, vehicles, trademarks, trade names, licenses, causes of action, rights to payment including tax refund claims, insurance proceeds and commercial tort claims (including, subject to entry of the Final Order, actions for preferences, fraudulent conveyances, and other avoidance power claims and any recoveries under sections 506(c), 542, 544, 545, 547, 548, 549, 550, 552(bSection 364(c)(1) and 553 of the Bankruptcy Code, shall at all times constitute allowed claims in the Cases having priority over any and all administrative expenses, diminution claims (including the Replacement Liens and Junior Adequate Protection Liens) and all other claims against the proceedsBorrower and the Guarantors, productsnow existing or hereafter arising, rents and profits of all of the foregoing (all of the foregoingany kind whatsoever, the "Collateral"), (i) subject only to the Carve-out, the Pre-petition Liens and to any other valid, binding, enforceable, perfected and unavoidable Liens of record (other than the Liens securing the obligations outstanding under the NUF Loan Documents) existing in the Collateral on the Petition Date and Liens permitted pursuant to clause (d) of Section 8.2 (Liens, Etc.) and (ii) senior and superior pursuant to section 364(d) of the Bankruptcy Code to the Liens securing the obligations outstanding under the NUF Loan Documents. Except as expressly set forth in the Bankruptcy Orders, the Liens granted in the Bankruptcy Orders and hereunder shall not be (i) subject to any Lien which is avoided and preserved for the benefit of the Borrower's and each Guarantor's estates under section 551 of the Bankruptcy Code or (ii) subordinated to or made pari passu with any other Lien under section 364(d) of the Bankruptcy Code or otherwise. In addition, the Secured Obligations shall have priority in all of the Cases in accordance with the provisions of section 364(c)(l) of the Bankruptcy Code over including all administrative expenses of the kind specified in section Sections 503(b) or 507(b) of the Bankruptcy Code Code; provided, however, that such claims granted under the Approval Order in respect of Obligations under the Tranche A Facility and the Tranche B Loan shall be senior in priority to such claims granted under the Approval Order in respect of Obligations under the Tranche C Loan;
("Superpriority"), subject only to the Carve-out. Except for the Carve-out, no costs or administrative expenses which have been or may be incurred in any of the Cases, in any conversion of the Borrower's and each Guarantor's Cases ii) pursuant to section 1112 Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable and fully-perfected first priority senior security interest in and Lien on all tangible and intangible property of the Borrower’s and the Guarantors’ respective estates in the Cases that is not subject to valid, perfected, non-avoidable and enforceable Liens in existence on the Closing Date, including all present and future accounts receivable, inventory, general intangibles, chattel paper, real property, leaseholds, fixtures, machinery and equipment, deposit accounts, patents, copyrights, trademarks, tradenames, rights under license agreements and other intellectual property, capital stock of any Subsidiaries of the Borrower and Guarantors and on all cash and investments maintained in the Letter of Credit Account (but excluding (x) the Borrower’s and the Guarantors’ rights in respect of avoidance actions under the Bankruptcy Code and (y) joint venture interests with respect to which a valid prohibition on pledging such interests or granting Liens thereon exists, it being understood that, notwithstanding such exclusion of such interests, the proceeds of such interests shall be subject to such liens under Section 364(c)(2) of the Bankruptcy Code and available to satisfy the Obligations and the other Secured Obligations);
(iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by valid, binding, continuing, enforceable and fully-perfected security interests in any and Liens upon all tangible and intangible property of the Borrower and the Guarantors (other proceeding related theretothan property described in clauses (ii) and (iv), as to which the liens and no priority Claims, including, without limitation, any other Superpriority Claims, are or security interests in favor of the Administrative Agent and the Lenders will be as described in such clauses) that is subject to valid, perfected and non-avoidable liens in existence on the Closing Date, which security interests and liens in favor of the Administrative Agent and the Lenders are junior to such valid, perfected and unavoidable liens;
(iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable and fully-perfected first priority senior priming security interest in and senior priming Lien on all of the tangible and intangible property of the Borrower and the Guarantors that is subject to existing Liens that pursuant to the terms of the Existing DIP Order are subject and subordinate to the Existing DIP Liens, which existing liens, rights and interests (the “Primed Liens”) shall be primed by and made subject and subordinate to the liens granted to the Administrative Agent and the Lenders, which senior priming liens in favor of the Administrative Agent and the Lenders shall also prime any liens granted under the Approval Order or thereafter to provide adequate protection in respect of the Primed Liens; provided, however, that such security interests and liens granted to the Administrative Agent and the Lenders shall be subject and subordinate to (x) the Carve-Out, (y) any valid, perfected and unavoidable interests of other parties arising out of liens existing on the Closing Date, if any, on such property that pursuant to the terms of the Existing DIP Order are senior in priority to the Existing DIP Liens and (z) statutory liens or security interests arising after the Closing Date and permitted under this Agreement that by operation of law would have priority over a previously perfected security interest; provided, further, that any valid, perfected and non-voidable liens or security interests that remain in existence after the Closing Date and that were senior to or pari passu with the liens securing obligations under the Existing Pre-Petition Agreement prior to the Closing Date shall maintain such priority or on a parity with pari passu position relative to the liens securing the Tranche C Loan; provided, however, that (iw) Claims all liens granted under the Approval Order to the Administrative Agent and the Lenders to secure Obligations under the Tranche A Facility and the Tranche B Loan shall be senior in priority to all liens granted under the Approval Order to the Administrative Agent and the Lenders to secure Obligations under the Tranche C Loan; (x) the Borrower and the Guarantors shall not be required to pledge to the Administrative Agent in excess of 65% of the Agentsvoting capital stock of its direct Foreign Subsidiaries or any of the capital stock or interests of its indirect Foreign Subsidiaries (if, in the good faith judgment of the Borrower, adverse tax consequences would result to the Borrower); (y) no portion of the Carve- Out may be utilized to fund prosecution or assertion of any claims against the Administrative Agent, the Lenders or the other Secured Parties against Issuing Lenders and (z) following the Termination Date, amounts in the Letter of Credit Account shall not be subject to the Carve-Out. The Lenders agree that so long as no Event of Default shall have occurred and be continuing, the Borrower and the Guarantors shall be permitted to pay compensation and reimbursement of expenses allowed and payable under Sections 330 and 331 of title 11 of the United States Code, as the same may be due and payable, and the same shall not reduce the Carve-Out.
(b) Subject to the priorities set forth in subsection (a) above and to the Carve- Out, as to all real property the title to which is held by the Borrower or any of the Guarantors, or the possession of which is held by the Borrower or any of the Guarantors pursuant to leasehold interests and which secured the Existing Pre-Petition Indebtedness prior to the refinancing thereof on the Closing Date, the Borrower and each Guarantor arising out hereby assigns and conveys as security, grants a security interest in, hypothecates, mortgages, pledges and sets over unto the Administrative Agent on behalf of the Secured Obligations or any provision Lenders all of Bankruptcy Order or (ii) Liens granted herein the right, title and interest of the Borrower and such Guarantor in all of such owned real property and in all such leasehold interests, together in each case with all of the other Loan Documents right, title and interest of the Borrower and such Guarantor in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. The Borrower and each Guarantor acknowledges that, pursuant to the CollateralApproval Order, the Liens in favor of the Administrative Agent on behalf of the Lenders in all of such real property and leasehold instruments shall be perfected without the recordation of any instruments of mortgage or assignment. The Borrower and each Guarantor further agrees that, upon the request of the Administrative Agent following the occurrence of an Event of Default (regardless of whether such Event of Default is continuing), the Borrower and such Guarantor shall enter into separate fee or leasehold mortgages in recordable form with respect to such properties on terms reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Priority and Liens. Each of the (a) The Borrower and each Guarantor of the Guarantors hereby covenants, represents and warrantswarrants that, upon entry of the Interim Order (and the Final Order, as security for all Secured applicable), the Obligations which may now or from time to time hereafter be owing by of the Borrower and the Guarantor Guarantors hereunder and under the Loan Documents and in respect of Indebtedness arising after the Filing Date owed to the Secured Parties, and each hereby grants any Lender (or its Banking Affiliates) permitted by Section 6.03(vi): (i) pursuant to the Administrative Agent for the sole benefit of the Secured Parties a valid, binding, enforceable and perfected Lien in the Collateral, including without limitation all currently owned or hereafter acquired property and assets of the Borrower and each Guarantor of any kind or nature, whether real or personal, tangible or intangible, wherever located, now owned or hereafter acquired or arising and all proceeds, products, rents and profits thereof, including, without limitation, all cash (including all cash collateral, wherever held), goods, accounts receivable, inventory, cash-in-advance deposits, real estate, machinery, equipment, vehicles, trademarks, trade names, licenses, causes of action, rights to payment including tax refund claims, insurance proceeds and commercial tort claims (including, subject to entry of the Final Order, actions for preferences, fraudulent conveyances, and other avoidance power claims and any recoveries under sections 506(c), 542, 544, 545, 547, 548, 549, 550, 552(bSection 364(c)(1) and 553 of the Bankruptcy Code) , shall at all times constitute joint and the proceeds, products, rents and profits of all of the foregoing (all of the foregoing, the "Collateral"), (i) subject only to the Carve-out, the Pre-petition Liens and to any other valid, binding, enforceable, perfected and unavoidable Liens of record (other than the Liens securing the obligations outstanding under the NUF Loan Documents) existing several allowed administrative expense claims in the Collateral on the Petition Date and Liens permitted pursuant to clause (d) of Section 8.2 (Liens, Etc.) and (ii) senior and superior pursuant to section 364(d) of the Bankruptcy Code to the Liens securing the obligations outstanding under the NUF Loan Documents. Except as expressly set forth in the Bankruptcy Orders, the Liens granted in the Bankruptcy Orders and hereunder shall not be (i) subject to any Lien which is avoided and preserved for the benefit of the Borrower's and each Guarantor's estates under section 551 of the Bankruptcy Code or (ii) subordinated to or made pari passu with any other Lien under section 364(d) of the Bankruptcy Code or otherwise. In addition, the Secured Obligations shall have Cases having priority in all of the Cases in accordance with the provisions of section 364(c)(l) of the Bankruptcy Code over all administrative expenses of the kind specified in section Sections 503(b) or 507(b) of the Bankruptcy Code; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a perfected first priority Lien on all tangible and intangible property of the Borrower’s and the Guarantors’ respective estates in the Cases that is not subject to valid, perfected and non-avoidable liens as of the Filing Date, and on all cash maintained in the Letter of Credit Account and any direct investments of the funds contained therein; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a perfected Lien upon all tangible and intangible property of the Borrower’s and the Guarantors’ respective estates in the Cases that is subject to valid, perfected and non-avoidable Liens in existence on the Filing Date or to valid Liens in existence on the Filing Date that are perfected subsequent to the Filing Date as permitted by Section 546(b) of the Bankruptcy Code or to Permitted Liens, junior to such valid, perfected and non-avoidable Liens ("Superpriority"provided that as set forth in clause (iv) of this sentence, the existing Liens that presently secure the obligations of the Borrower and the Guarantors under the Existing Agreements, will be primed by the Lien in favor of the Agent and the Lenders as described in clause (iv) of this sentence); and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a perfected first priority, senior priming Lien on all of the tangible and intangible property of the Borrower and the Guarantors that is subject to a valid and enforceable right of setoff by any Lender party to an Existing Agreement or to existing Liens that presently secure the Borrower’s and the Guarantors’ pre-petition Indebtedness under the Existing Agreements (but subject to any Liens in existence on the Filing Date to which the Liens being primed hereby are subject or become subject subsequent to the Filing Date as permitted by Section 546(b) of the Bankruptcy Code) and any Liens granted after the Filing Date to provide adequate protection in respect of the Existing Agreements; in the case of each of clauses (i) through (iv) subject only to the Carve-out. Except for Out, provided that, except as otherwise provided in the Orders, no portion of the Carve-outOut shall be utilized for the payment of professional fees and disbursements incurred in connection with any challenge to the amount, extent, priority, validity, perfection or enforcement of the indebtedness of the Borrower and the Guarantors owing to the Existing Lenders or to the collateral securing such indebtedness. The Lenders agree that so long as no costs Event of Default or administrative event which with the giving of notice or lapse of time or both would constitute an Event of Default shall have occurred, the Borrower and the Guarantors shall be permitted to pay compensation and reimbursement of expenses which have been or allowed and payable under 11 U.S.C. § 330 and 11 U.S.C. § 331, as the same may be incurred due and payable, and the same shall not reduce the Carve-Out.
(b) Subject to the priorities set forth in subsection (a) above and to the Carve- Out, as to all real property the title to which is held by the Borrower or any of the CasesGuarantors, in or the possession of which is held by the Borrower or any conversion of the Borrower's and each Guarantor's Cases Guarantors pursuant to section 1112 of the Bankruptcy Code, or in any other proceeding related theretoleasehold interest, and no priority Claimswhich secures the obligations under the Existing Agreements, including, without limitation, any other Superpriority Claims, are or will be prior to or on a parity with the (i) Claims of the Agents, the Lenders or the other Secured Parties against the Borrower and each Guarantor arising out hereby assigns and conveys as security, grants a security interest in, hypothecates, mortgages, pledges and sets over unto the Agent on behalf of the Secured Obligations or any provision Lenders all of Bankruptcy Order or (ii) Liens granted herein the right, title and interest of the Borrower and such Guarantor in all of such owned real property and in all such leasehold interests, together in each case with all of the other Loan Documents right, title and interest of the Borrower and such Guarantor in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. The Borrower and each Guarantor acknowledges that, pursuant to the CollateralOrders, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments shall be perfected without the recordation of any instruments of mortgage or assignment. The Borrower and each Guarantor further agrees that, upon the request of the Agent, the Borrower and such Guarantor shall enter into separate fee or leasehold mortgages in recordable form with respect to such properties on terms reasonably satisfactory to the Agent.
Appears in 1 contract
Priority and Liens. (a) Each of the Borrower and each Guarantor Credit Parties hereby covenants, represents and warrantswarrants that, as security for upon entry of the Interim DIP Financing Order (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, the Revolving Obligations shall at all Secured Obligations which may now or from time to time hereafter be owing by times constitute allowed administrative expense claims in the Borrower Bankruptcy Cases with priority over all administrative expense claims and unsecured claims against the Guarantor to the Secured Credit Parties, and each hereby grants to the Administrative Agent for the sole benefit of the Secured Parties a valid, binding, enforceable and perfected Lien in the Collateral, including without limitation all currently owned now existing or hereafter acquired property and assets of the Borrower and each Guarantor arising, of any kind or nature, whether real or personal, tangible or intangible, wherever located, now owned or hereafter acquired or arising and all proceeds, products, rents and profits thereofnature whatsoever, including, without limitation, all cash (including all cash collateraladministrative expenses of the kinds specified in or ordered pursuant to Sections 105, wherever held326, 330, 331, 503(a), goods503(b), accounts receivable, inventory, cash-in-advance deposits, real estate, machinery, equipment, vehicles, trademarks, trade names, licenses, causes of action, rights to payment including tax refund claims, insurance proceeds and commercial tort claims (including, subject to entry of the Final Order, actions for preferences, fraudulent conveyances, and other avoidance power claims and any recoveries under sections 506(c), 542507(a), 544507(b), 545546(c), 547546(d), 548, 549, 550, 552(band 1114 of the Bankruptcy Code and (ii) pursuant to Sections 364(c)(2) and 553 364(d) of the Bankruptcy Code) , the Revolving Obligations shall at all times be secured by a perfected first priority Lien on all property and the proceeds, products, rents and profits assets of all each member of the foregoing (all TP&S Group, except for the Excluded Assets, subject in the case of the foregoing, the "Collateral"), both (i) subject only to the Carve-out, the Pre-petition Liens and to any other valid, binding, enforceable, perfected and unavoidable Liens of record (other than the Liens securing the obligations outstanding under the NUF Loan Documents) existing in the Collateral on the Petition Date and Liens permitted pursuant to clause (d) of Section 8.2 (Liens, Etc.) and (ii) senior only to (A) Senior Liens and superior pursuant (B) the Carve Out (defined below) in an aggregate amount not in excess of $1,050,000 (the "Carve-Out"). The Carve-Out may be used only to section 364(d) pay the fees and expenses of professionals employed by the Credit Parties, the fees and expenses of professionals employed by any statutory committee appointed by the Bankruptcy Code to the Liens securing the obligations outstanding Court under the NUF Loan Documents. Except as expressly set forth in the Bankruptcy Orders, the Liens granted in the Bankruptcy Orders and hereunder shall not be (i) subject to any Lien which is avoided and preserved for the benefit of the Borrower's and each Guarantor's estates under section 551 of the Bankruptcy Code or (ii) subordinated to or made pari passu with any other Lien under section 364(d) of the Bankruptcy Code or otherwise. In addition, the Secured Obligations shall have priority in all of the Cases in accordance with the provisions of section 364(c)(l) of the Bankruptcy Code over all administrative expenses of the kind specified in section 503(b) or 507(b) Section 1102 of the Bankruptcy Code ("SuperpriorityStatutory Committee"), subject only and the expenses of members of any such Statutory Committee, provided that all such fees and expenses are authorized to be paid or approved by the Bankruptcy Court to the extent required under the Bankruptcy Code; provided, however, that the Carve-out. Except Out shall not include, apply to or be available for any fees or expenses incurred by any party, including the Carve-out, no costs Credit Parties or administrative expenses which have been or may be incurred in any of the CasesStatutory Committee, in connection with the initiation or prosecution of any conversion claims, causes of action, adversary proceedings or other litigation against the Borrower's and each Guarantor's Cases pursuant to section 1112 of Agents, the Bankruptcy CodeLenders, the Pre-Petition Agents or in any other proceeding related thereto, and no priority Claimsthe Pre-Petition Lenders, including, without limitation, challenging the amount, validity, priority or enforceability of, or asserting any defense, claim, counterclaim or offset to, the Pre-Petition Credit Agreement Obligations or the Revolving Obligations or the Liens of the Collateral Agent and the Lenders, under either the Pre-Petition Credit Facility or this Agreement, in respect thereof. The Lenders agree that so long as the Termination Date shall not have occurred or the Agents or the Lenders have not exercised any remedies as a result of an Event of Default, the Credit Parties shall be permitted to pay compensation and reimbursement of expenses accrued and payable under 11 U.S.C. ss. 330 and 11 U.S.C. ss. 331, as the same may be due and payable pursuant to the order of the Bankruptcy Court, and the same shall not reduce the amount available under the Carve-Out. The foregoing shall not be construed as a consent to the allowance of any fees and expenses or bonuses referred to above and shall not affect the right of the Credit Parties, the Agents or the Lenders to object to the allowance and payment of such amounts. Notwithstanding any other Superpriority Claimsprovision of this Agreement to the contrary, are or will the Carve-Out may be prior used to or on a parity with investigate (but not prosecute) prepetition Liens.
(b) As to all real property the (i) Claims title to which is held by any of the AgentsCredit Parties, or the possession of which is held by any of the Credit Parties pursuant to a leasehold interest or otherwise, each of the Credit Parties hereby assigns and conveys as security, grants a security interest in, hypothecates, mortgages, pledges and sets over unto the Collateral Agent on behalf of the Lenders or the other Secured Parties against the Borrower and each Guarantor arising out all of the Secured Obligations right, title and interest of such Credit Party in all of such owned real property and in all such leasehold interests or other interests, together in each case with all of the right, title and interest of such Credit Party in and to all buildings, improvements, and fixtures related thereto, any provision of Bankruptcy Order lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof, such assignment, conveyance and security interest to have the priorities set forth in Section 9.1(a)(i) and (ii) Liens granted herein and in the other Loan Documents in and to the Collateralabove.
Appears in 1 contract
Sources: Debtor in Possession Financing Agreement (Railworks Corp)
Priority and Liens. Each (a) All Obligations shall at all times, subject to the Carve-Out:
(i) pursuant to section 364(c)(1) of the Borrower Bankruptcy Code, be entitled to a Superpriority Claim, jointly and severally against each Guarantor hereby covenantsObligor, represents with priority over any and warrantsall other claims against the Obligors, as security for all Secured Obligations which may now or from time to time hereafter be owing by the Borrower and the Guarantor to the Secured Parties, and each hereby grants to the Administrative Agent for the sole benefit of the Secured Parties a valid, binding, enforceable and perfected Lien in the Collateral, including without limitation all currently owned existing or hereafter acquired property and assets of the Borrower and each Guarantor arising, of any kind whatsoever, including any and all administrative expenses or natureother claims of the kind specified in or arising under sections 105, 326, 328, 330, 331, 503(b), 506(c), 507, 546(c), 726, 1113 or 1114 of the Bankruptcy Code, whether real or personalnot such expenses or claims may become secured by a judgment lien or other non-consensual lien, tangible levy or intangibleattachment, wherever locatedand shall at all times be senior to the rights of each Obligor, now owned each Obligor’s estate and any successor trustee, estate representative or hereafter acquired any creditor, in the Cases or arising and any subsequent cases or proceedings under the Bankruptcy Code;
(ii) pursuant to section 364(c)(2) of the Bankruptcy Code, be secured by a perfected first priority lien on all proceeds, products, rents and profits thereof, DIP Collateral (including, without limitation, all cash (including all cash collateral, wherever held), goodsinventory, accounts receivable, inventorygeneral intangibles, cash-in-advance depositscontracts, chattel paper, owned real estate, real estateproperty leaseholds, securities, fixtures, machinery, equipment, vehiclesdeposit accounts, patents, copyrights, trademarks, trade names, licensesrights under license agreements and other intellectual property and capital stock of subsidiaries of the Obligors, causes all other tangible and intangible property of actionthe Obligors’ respective estates), rights to payment including tax refund claimsand all products and proceeds thereof, insurance proceeds and commercial tort claims (including, that is not subject to entry of any valid Lien in existence on the Final OrderPetition Date, actions for preferences, fraudulent conveyances, that was perfected and other avoidance power claims and any recoveries under sections 506(c), 542, 544, 545, 547, 548, 549, 550, 552(bnon-avoidable on the Petition Date or is subsequently perfected pursuant to section 546(b) and 553 of the Bankruptcy Code;
(iii) and the proceeds, products, rents and profits of all pursuant to section 364(c)(3) of the foregoing Bankruptcy Code, be secured by a perfected second priority lien (the “Second Priority DIP Lien”) in and on (x) all of DIP Collateral that is subject to the foregoingPrepetition Collateral Agent Liens, the "Collateral")Collateral Agent Adequate Protection Liens, (i) subject only to the Carve-out, the Pre-petition Liens and to any other validvalid Lien in existence on the Petition Date, binding, enforceable, that was perfected and unavoidable Liens of record (other than the Liens securing the obligations outstanding under the NUF Loan Documents) existing in the Collateral non-avoidable on the Petition Date and Liens permitted pursuant to clause (d) of Section 8.2 (Liens, Etc.) and (ii) senior and superior or is subsequently perfected pursuant to section 364(d546(b) of the Bankruptcy Code, but senior to any and all other liens presently existing or hereinafter granted on such DIP Collateral, and (y) the Non-Priority Lien Capital Stock (subject only to (A) a Lien granted pursuant to sections 364(c)(2), 364(c)(3) or 364(d)(1) of the Bankruptcy Code in favor of lenders (or their agent) providing any ASA DIP Facility or US BioEnergy DIP Facility and any adequate protection Liens with respect to the Prepetition Liens securing the obligations outstanding that are primed or cash collateral that is utilized and any Liens permitted under the NUF Loan Documents. Except financing documents relating thereto that are permitted to be senior to any ASA DIP Facility or US BioEnergy DIP Facility and (B) any other valid Lien in existence on the Petition Date that (1) was perfected and non-avoidable on the Petition Date or (2) is subsequently perfected pursuant to section 546(b) of the Bankruptcy Code)) and (C) any Permitted Prior Liens; provided that enforcement of such Second Priority DIP Lien shall be restricted as expressly set forth in Section 3.9(b); and
(iv) pursuant to section 364(d)(1) of the Bankruptcy OrdersCode, be secured by a perfected first priority, senior priming Lien on all of the DIP Collateral that is not subject to the Prepetition Collateral Agent Liens, the Collateral Agent Adequate Protection Liens (the “Priming DIP Lien” and, together with the Second Priority DIP Lien and the Lien set forth in subparagraph (ii) above, the “DIP Liens”), which Priming DIP Lien shall also prime any Liens granted after the commencement of the Cases to provide adequate protection in respect of any of the 2012 Senior Secured Notes Liens and Collateral Agent Adequate Protection Liens, but shall not prime (A) the Prepetition Collateral Agent Liens or Collateral Agent Adequate Protection Liens, if any, in the Bankruptcy Orders UBS Cash Collateral, (B) any other valid Liens on DIP Collateral in existence on the Petition Date that were perfected and hereunder shall not be (inon-avoidable on the Petition Date or are subsequently perfected pursuant to section 546(b) subject to any Lien which is avoided and preserved for the benefit of the Borrower's and each Guarantor's estates under section 551 of the Bankruptcy Code or (iiC) subordinated any Permitted Prior Liens.
(b) The Final Order shall provide that enforcement actions may be taken by the Administrative Agent in respect of the Second Priority DIP Lien following an Event of Default hereunder only if the Prepetition Collateral Agent is pursuing enforcement action in respect of the Prepetition Collateral Agent Liens and the Collateral Agent Adequate Protection Liens, and then may be taken only to or made pari passu with the same extent as the enforcement action being pursued by the Prepetition Collateral Agent. To the extent that pursuant to an enforcement action the Administrative Agent receives proceeds in respect of any DIP Collateral that is subject to a Second Priority DIP Lien while any obligations and all other Lien under valid Liens in existence on the Petition Date that are subsequently perfected pursuant to section 364(d546(b) of the Bankruptcy Code or otherwise. In additionremain outstanding under the Prepetition Credit Agreement, the Secured Obligations Administrative Agent shall have priority in all of turn over such proceeds to the Cases Prepetition Collateral Agent for application to the obligations outstanding under the Prepetition Credit Agreement in accordance with the provisions terms thereof.
(c) The Final Order shall provide that all Non-Obligor Subsidiary Reimbursement Obligations shall at all times, subject to the Carve-Out:
(i) pursuant to section 364(c)(1) of the Bankruptcy Code, be entitled to a Superpriority Non-Obligor Subsidiary Transfer Claim with priority over any and all other claims (other than (x) other Superpriority Non-Obligor Subsidiary Transfer Claims, (y) claims (if any) granted pursuant to section 364(c)(l364(d)(1) of the Bankruptcy Code over in favor of lenders (or their agent) providing an ASA DIP Facility or US BioEnergy DIP Facility and (z) superpriority claims granted in connection with adequate protection Liens with respect to Prepetition Liens that are primed or cash collateral that is utilized and any Liens permitted under the financing documents relating thereto that are permitted to be senior to any ASA DIP Facility or US BioEnergy DIP Facility) against the Non-Obligor Subsidiary, now existing or hereafter arising, of any kind whatsoever, including any and all administrative expenses or other claims of the kind specified in or arising under sections 105, 326, 328, 330, 331, 503(b), 506(c), 507, 546(c), 726, 1113 or 1114 of the Bankruptcy Code, whether or not such expenses or claims may become secured by a judgment Lien or other non-consensual Lien, levy or attachment, and shall at all times be senior to the rights of the Non-Obligor Subsidiary, the Non-Obligor Subsidiary’s estate and any successor trustee, estate representative or any creditor, in the Cases or any subsequent cases or proceedings under the Bankruptcy Code;
(ii) pursuant to section 503(b364(c)(2) of the Bankruptcy Code, be secured by a perfected first priority Lien on all Prepetition and Postpetition Non-Obligor Subsidiary Transfer Collateral that is not subject to any valid Lien in existence on the Petition Date, that (A) was perfected and non-avoidable on the Petition Date or (B) is subsequently perfected pursuant to section 546(b) of the Bankruptcy Code, which Lien shall be junior in priority only to Liens (if any) granted pursuant to sections 364(c)(2), 364(c)(3) or 507(b364(d)(1) of the Bankruptcy Code in favor of one or more lenders ("Superpriority"), subject only or their agent) providing an ASA DIP Facility or US BioEnergy DIP Facility and any adequate protection Liens with respect to Prepetition Liens that are primed or cash collateral that is utilized and any Liens permitted under the Carve-out. Except for the Carve-out, no costs financing documents relating thereto that are permitted to be senior to any ASA DIP Facility or administrative expenses which have been or may be incurred in any of the Cases, in any conversion of the Borrower's and each Guarantor's Cases US BioEnergy DIP Facility;
(iii) pursuant to section 1112 364(c)(3) of the Bankruptcy Code, or in any other proceeding related thereto, and no priority Claims, including, without limitation, any other Superpriority Claims, are or will be prior to or on secured by a parity perfected junior Lien (together with the Liens granted pursuant to the preceding subsection 3.9(c)(ii), the “Non-Obligor Subsidiary Transfer Liens”) on all Prepetition and Postpetition Non-Obligor Subsidiary Transfer Collateral that is subject to any valid Lien in existence on the Petition Date, that (iA) Claims was perfected and non-avoidable on the Petition Date or (B) is subsequently perfected pursuant to section 546(b) of the AgentsBankruptcy Code, which Lien shall be subject to Liens (if any) granted pursuant to sections 364(c)(2), 364(c)(3) or 364(d)(1) of the Lenders Bankruptcy Code in favor of lenders providing an ASA DIP Facility or US BioEnergy DIP Facility and any adequate protection Liens with respect to Prepetition Liens that are primed or cash collateral that is utilized and any Liens permitted under the financing documents relating thereto that are permitted to be senior to any ASA DIP Facility or US BioEnergy DIP Facility; and
(iv) be subject to the absolute right of any Obligor that makes a Non-Obligor Subsidiary Transfer to set off the amount of any Indebtedness, Trade Indebtedness or other Secured Parties obligation owed to any Non-Obligor Subsidiary against the Borrower and each Guarantor arising out amount of the Secured all Non-Obligor Subsidiary Reimbursement Obligations or any provision of Bankruptcy Order or (ii) Liens granted herein and in the other Loan Documents in and owed to the Collateralsuch Obligor by such Non-Obligor Subsidiary.
Appears in 1 contract
Sources: Debtor in Possession Credit Agreement (Verasun Energy Corp)
Priority and Liens. (a) Each of the Borrower Loan Parties hereby covenants and each Guarantor hereby covenantsagrees that upon the entry of, represents and warrantssubject to, as security for all Secured Obligations which may now or from time to time hereafter be owing by the Borrower DIP Order and the Guarantor subject to the Secured PartiesCarve-Out in all respects, and each hereby grants the Obligations: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject only to the Administrative Agent for Carve-Out and having priority over any and all other administrative expenses, diminution claims and all other priority claims against the sole benefit of the Secured Parties a validDebtors, binding, enforceable and perfected Lien in the Collateral, including without limitation all currently owned now existing or hereafter acquired property and assets of the Borrower and each Guarantor arising, of any kind or nature, whether real or personal, tangible or intangible, wherever located, now owned or hereafter acquired or arising and all proceeds, products, rents and profits thereofwhatsoever, including, without limitation, all cash (including all cash collateral, wherever held), goods, accounts receivable, inventory, cash-in-advance deposits, real estate, machinery, equipment, vehicles, trademarks, trade names, licenses, causes of action, rights to payment including tax refund claims, insurance proceeds and commercial tort claims (including, subject to entry other administrative expenses of the Final Order, actions for preferences, fraudulent conveyances, and other avoidance power claims and any recoveries under kind specified in sections 506(c), 542, 544, 545, 547, 548, 549, 550, 552(b503(b) and 553 507(b) of the Bankruptcy Code) , and the proceedsover any and all other administrative expenses or other claims arising under sections 105, products326, rents and profits of all of the foregoing (all of the foregoing328, the "Collateral"330, 331, 365, 503(b), 506(c) (i) subject only to and effective upon entry of the Carve-outDIP Order), 507(a), 507(b), 726, 1113 or 1114 of the Bankruptcy Code, which Superpriority Claims in respect of the Facility shall rank pari passu with each other and (ii) pursuant to Section 364(d)(l) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on all Collateral, which Liens shall be senior to the Liens (the “Primed Liens”) securing the Pre-petition Petition ABL Credit Facility and any Liens to which the Primed Liens are senior or rank pari passu, and which shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens to the extent of any other diminution in the value of the collateral of the Primed Liens as provided in the DIP Order in respect of any of the Primed Liens, subject in each case only to (1) Permitted Liens that are valid, binding, enforceable, perfected and unavoidable Liens in favor of record (other than the Liens securing the obligations outstanding under the NUF Loan Documents) existing third parties that were in the Collateral on existence immediately prior to the Petition Date and Liens permitted pursuant to clause that are not impaired, affected or modified by the DIP Order and/or that have priority after the Petition Date by operation of Law, (d2) of Section 8.2 the Carve-Out and (Liens, Etc.3) and (ii) senior and superior pursuant to section 364(d) of the Bankruptcy Code to the Liens securing the obligations outstanding under the NUF Loan Documents. Except as expressly otherwise set forth in the Bankruptcy OrdersDIP Order (the “Priming Liens”) and with respect to perfection, solely to the Liens granted in extent it may be achieved by the Bankruptcy Orders and hereunder shall not be (i) subject to any Lien which is avoided and preserved for the benefit entry of the Borrower's DIP Order and each Guarantor's estates the perfection steps required to be taken under section 551 the Collateral Documents; it being agreed that such Collateral shall exclude claims and causes of the Bankruptcy Code or (ii) subordinated to or made pari passu with any other Lien action under section 364(d) of the Bankruptcy Code or otherwise. In additionsections 502(d), the Secured Obligations shall have priority in all of the Cases in accordance with the provisions of section 364(c)(l) of the Bankruptcy Code over all administrative expenses of the kind specified in section 503(b) or 507(b) 544, 545, 547, 548, 550 and 553 of the Bankruptcy Code ("Superpriority")collectively “Avoidance Actions”) but include, subject only to the entry of the Final Financing Order by the U.S. Bankruptcy Court, the proceeds thereof.
(b) The Priming Liens, (i) shall be subject and junior to the Carve-out. Except for the Carve-outOut in all respects, no costs or administrative expenses which have been or may be incurred in any of the Cases, in any conversion of the Borrower's and each Guarantor's Cases pursuant to section 1112 of the Bankruptcy Code, or in any other proceeding related thereto, and no priority Claims, including, without limitation, any other Superpriority Claims, are or will be prior to or on a parity with the (i) Claims of the Agents, the Lenders or the other Secured Parties against the Borrower and each Guarantor arising out of the Secured Obligations or any provision of Bankruptcy Order or (ii) shall be junior to Liens that are senior to the Primed Liens (unless such Liens are themselves Primed Liens), (iii) shall be senior to any Liens to which the Primed Liens are senior or rank pari passu, (iv) shall be senior in all respects to the interests of such property of the holders of the obligations in respect of the Primed Liens and (v) shall also be senior to any Liens granted herein and after the Petition Date to provide adequate protection in respect of the Primed Liens.
(c) The relative priorities of the Liens described in this Section 2.17 with respect to the Collateral shall be as set forth in the DIP Order and the Collateral Documents. In accordance with the DIP Order, all of the Liens described in this Section 2.17 shall be effective and perfected upon entry of the DIP Order, without the necessity of the execution, recordation or filings by the Debtors of security agreements, control agreements, financing statements or other Loan Documents similar documents, or the possession or control by the Administrative Agent of, or over, any Collateral, as set forth in and to the CollateralDIP Order.
Appears in 1 contract
Sources: Superpriority Secured Debtor in Possession Credit Agreement (iHeartMedia, Inc.)
Priority and Liens. (a) Each of the Borrower and each Guarantor Loan Party hereby covenants, represents and warrantswarrants that, as security for all upon entry of the Interim Order and execution of this Agreement and the Security and Pledge Agreement, the Secured Obligations which may now or from time to time hereafter be owing by of such Loan Party under the Borrower and the Guarantor Loan Documents shall at all times be:
(i) subject to the Secured PartiesCarve-Out, and each hereby grants pursuant to Section 364(c)(1) of the Bankruptcy Code, entitled to Superpriority Claim status in the Case of such Loan Party;
(ii) subject to the Administrative Agent Carve-Out, pursuant to Section 364(c)(2) of the Bankruptcy Code, secured by a perfected first priority senior security interest and Lien on (x) with respect to any Loan Party other than a Holding Company Guarantor, all property of such Loan Party other than Excluded Property that is not subject on or as of the Petition Date to Existing Non-Primed Liens and any amounts that cash collateralize any Letter of Credit issued for the sole benefit account of the Secured Parties such Loan Party (if any) and (y) with respect to any Loan Party that is a validHolding Company Guarantor, bindingall Equity Interests other than Excluded Property of any direct Subsidiary of such Holding Company Guarantor and any unencumbered cash, enforceable cash accounts and perfected Lien in the Collateral, cash investments (including without limitation all currently owned or hereafter acquired Permitted Investments) held by such Holding Company Guarantor (the assets described in this clause (y), collectively, with respect to each Holding Company Guarantor, the "Holding Company Specified Assets"), in each case that are not subject to Existing Non-Primed Liens (and the property and assets of the Borrower and each Guarantor of any kind Loan Party described in clauses (x) or nature, whether real or personal, tangible or intangible, wherever located, now owned or hereafter acquired or arising (y) shall exclude any Loan Party's claims and all proceeds, products, rents and profits thereof, including, without limitation, all cash (including all cash collateral, wherever held), goods, accounts receivable, inventory, cash-in-advance deposits, real estate, machinery, equipment, vehicles, trademarks, trade names, licenses, causes of action, rights to payment including tax refund claims, insurance proceeds and commercial tort claims (including, subject to entry of the Final Order, actions for preferences, fraudulent conveyances, and other avoidance power claims and any recoveries action under sections 506(cSections 502(d), 542, 544, 545, 547, 548, 549, 550, 552(b) 548 and 553 550 of the Bankruptcy Code) and , or any other avoidance actions under the proceedsBankruptcy Code, productsbut shall include any proceeds or property recovered, rents and profits unencumbered or otherwise the subject of all of the foregoing any such action that is successful);
(all of the foregoing, the "Collateral"), (iiii) subject only to the Carve-outOut, pursuant to Section 364(c)(3) of the Pre-petition Liens and Bankruptcy Code, secured by a perfected junior Lien on (x) with respect to any Loan Party other than a Holding Company Guarantor, all property of such Loan Party that is subject to valid, binding, enforceable, perfected and unavoidable Liens of record (other than the Liens securing the obligations outstanding under the NUF Loan Documents) existing liens in the Collateral on existence immediately prior to the Petition Date or to valid and unavoidable Liens in existence immediately prior to the Petition Date that are perfected subsequent to the Petition Date as permitted pursuant to clause (d) of Section 8.2 (Liens, Etc.) and (ii) senior and superior pursuant to section 364(dby Sections 546(b) of the Bankruptcy Code and, to the Liens securing the obligations outstanding under the NUF Loan Documents. Except as expressly set forth in the Bankruptcy Ordersextent applicable, the Liens granted in the Bankruptcy Orders and hereunder shall not be (i) subject to any Lien which is avoided and preserved for the benefit of the Borrower's and each Guarantor's estates under section 551 of the Bankruptcy Code or (ii) subordinated to or made pari passu with any other Lien under section 364(d) of the Bankruptcy Code or otherwise. In addition, the Secured Obligations shall have priority in all of the Cases in accordance with the provisions of section 364(c)(l) of the Bankruptcy Code over all administrative expenses of the kind specified in section 503(b) or 507(bSection 362(b)(18) of the Bankruptcy Code (other than the property (if any) that is subject to existing Liens that secure obligations of such Loan Party under the Pre-Petition Facility as to which such Loan Party is liable (any such Liens, "SuperpriorityPrimed Liens"), which Liens shall be primed by the Liens described in clause (iv) below) and (y) with respect to any Loan Party that is a Holding Company Guarantor, its Holding Company Specified Assets that are subject only to valid and perfected liens in existence on the Petition Date or to valid Liens in existence on the Petition Date that are perfected subsequent to the Petition Date as permitted by Sections 546(b) and 362(b)(18) of the Bankruptcy Code (other than the property (if any) that is subject to existing Liens that secure obligations (if any) of such Holding Company Guarantor under the Pre-Petition Facility as to which such Holding Company Guarantor is liable, which Liens shall be primed by the Liens described in clause (iv) below); and
(iv) subject to the Carve-outOut, pursuant to Section 364(d)(1) of the Bankruptcy Code, secured by a perfected first priority, senior priming security interest and lien on all of the property of such Loan Party that is subject to any of the Primed Liens (including, without limitation, inventory, accounts receivable, property, plant, equipment, patents, copyrights, trademarks, tradenames and other intellectual property and capital stock of subsidiaries), which priming lien shall be senior in all respects to the interests in such property of the Pre-Petition Lenders of such Loan Party (including, without limitation, adequate protection liens granted to such Pre-Petition Lenders), but shall not be senior to any Existing Non-Primed Liens on such property. Except for the Carve-outOut, no costs or administrative expenses which have been or may the Superpriority Claims shall at all times be incurred in any senior to the rights of the CasesLoan Parties, in any conversion of the Borrower's and each Guarantor's Cases pursuant chapter 11 Trustee and, subject to section 1112 726 of the Bankruptcy Code, any chapter 7 Trustee, or in any other proceeding related theretocreditor (including, without limitation, post-petition counterparties and no priority Claimsother post-petition creditors) in the Cases or any subsequent proceedings under the Bankruptcy Code, including, without limitation, any other Superpriority Claimschapter 7 cases if any of the Loan Parties' cases are converted to cases under chapter 7 of the Bankruptcy Code.
(b) As to all real property the title to which is held by any Loan Party, are or will be prior the possession of which is held by any Loan Party pursuant to or leasehold interest, each Loan Party hereby assigns and conveys as security, grants a security interest in, hypothecates, mortgages, pledges and sets over unto the Collateral Agent on a parity with the (i) Claims behalf of the Agents, the Fronting Banks and the DIP Lenders or the other Secured Parties against the Borrower and each Guarantor arising out all of the Secured Obligations or any provision right, title and interest of Bankruptcy Order or (ii) Liens granted herein such Loan Party in all of such owned real property and in all such leasehold interests, together in each case with all of the other right, title and interest of such Loan Documents Party in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof, with the Collateralrank and priority set forth in subsection (a). Each Loan Party acknowledges that, pursuant to the Orders, the Liens in favor of the Collateral Agent on behalf of the Agents, the Fronting Banks and the DIP Lenders in all of such real property and leasehold instruments shall be perfected without the recordation of any instruments of mortgage or assignment.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Frontiervision Holdings Capital Corp)
Priority and Liens. (a) Each of the Borrower and each Guarantor Credit Parties hereby covenants, represents and warrantswarrants that, as security for upon entry of the Interim DIP Financing Order (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, the Obligations shall at all Secured Obligations which may now or from time to time hereafter be owing by times constitute allowed administrative expense claims in the Borrower Bankruptcy Cases with priority over all administrative expense claims and unsecured claims against the Guarantor to the Secured Credit Parties, and each hereby grants to the Administrative Agent for the sole benefit of the Secured Parties a valid, binding, enforceable and perfected Lien in the Collateral, including without limitation all currently owned now existing or hereafter acquired property and assets of the Borrower and each Guarantor arising, of any kind or nature, whether real or personal, tangible or intangible, wherever located, now owned or hereafter acquired or arising and all proceeds, products, rents and profits thereofnature whatsoever, including, without limitation, all cash (including all cash collateraladministrative expenses of the kinds specified in or ordered pursuant to Sections 105, wherever held326, 330, 331, 503(a), goods503(b), accounts receivable, inventory, cash-in-advance deposits, real estate, machinery, equipment, vehicles, trademarks, trade names, licenses, causes of action, rights to payment including tax refund claims, insurance proceeds and commercial tort claims (including, subject to entry of the Final Order, actions for preferences, fraudulent conveyances, and other avoidance power claims and any recoveries under sections 506(c), 542507(a), 544507(b), 545546(c), 547546(d), 548, 549, 550, 552(b) and 553 1114 of the Bankruptcy Code) and the proceeds, products, rents and profits of all of the foregoing (all of the foregoing, the "Collateral"), (i) subject only to the Carve-out, the Pre-petition Liens and to any other valid, binding, enforceable, perfected and unavoidable Liens of record (other than the Liens securing the obligations outstanding under the NUF Loan Documents) existing in the Collateral on the Petition Date and Liens permitted pursuant to clause (d) of Section 8.2 (Liens, Etc.) Code and (ii) senior and superior pursuant to section Sections 364(c)(2) and 364(d) of the Bankruptcy Code Code, the Obligations shall at all times be secured by a perfected first priority Lien on all property and assets of each member of the Transit Group, except for the Excluded Assets, and all assets directly related to the Liens securing Specified Contracts (other than the obligations outstanding under the NUF Loan Documents. Except as expressly equipment set forth on Schedule III) subject only to (A) Senior Liens, (B) the Carve Out (defined below) in an aggregate amount not in excess of $1,450,000 (the "Carve-Out") and (C) the UST/Clerk Fees. The Carve-Out may be used only to pay the fees and expenses of professionals employed by the Credit Parties, the fees and expenses of professionals employed by any statutory committee appointed by the Bankruptcy Orders, the Liens granted in the Bankruptcy Orders and hereunder shall not be (i) subject to any Lien which is avoided and preserved for the benefit of the Borrower's and each Guarantor's estates Court under section 551 of the Bankruptcy Code or (ii) subordinated to or made pari passu with any other Lien under section 364(d) of the Bankruptcy Code or otherwise. In addition, the Secured Obligations shall have priority in all of the Cases in accordance with the provisions of section 364(c)(l) of the Bankruptcy Code over all administrative expenses of the kind specified in section 503(b) or 507(b) Section 1102 of the Bankruptcy Code ("SuperpriorityStatutory Committee"), subject only and the expenses of members of any such Statutory Committee; provided that all such fees and expenses are authorized to be paid or approved by the Bankruptcy Court to the extent required under the Bankruptcy Code; provided, however, that the Carve-out. Except Out shall not include, apply to or be available for any fees or expenses incurred by any party, including the Carve-out, no costs Credit Parties or administrative expenses which have been or may be incurred in any of the CasesStatutory Committee, in connection with the initiation or prosecution (but not investigation) of any conversion claims, causes of action, adversary proceedings or other litigation against the Borrower's and each Guarantor's Cases pursuant to section 1112 of Administrative Agent or the Bankruptcy Code, or in any other proceeding related thereto, and no priority ClaimsLenders, including, without limitation, challenging the amount, validity, priority or enforceability of, or asserting any other Superpriority Claimsdefense, are claim, counterclaim or will be prior to offset to, the Obligations or on a parity with the (i) Claims Liens of the AgentsAdministrative Agent and the Lenders under this Agreement in respect thereof. The Lenders agree that so long as the Maturity Date shall not have occurred or the Administrative Agent or the Lenders have not exercised any remedies as a result of an Event of Default, the Lenders Credit Parties shall be permitted to pay compensation and reimbursement of expenses accrued and payable under 11 U.S.C.ss. 330 and 11 U.S.C.ss. 331, as the same may be due and payable ▇▇ ▇▇▇▇▇rized by the Bankruptcy Court, and the same shall not reduce the amount available under the Carve-Out. The foregoing shall not be construed as a consent to the allowance of any fees and expenses or bonuses referred to above and shall not affect the right of the Credit Parties, the Administrative Agent or the other Secured Parties against the Borrower and each Guarantor arising out of the Secured Obligations or any provision of Bankruptcy Order or (ii) Liens granted herein and in the other Loan Documents in and Lenders to object to the Collateralallowance and payment of such amounts.
Appears in 1 contract
Sources: Debt Agreement (Railworks Corp)