Priority and Liens. Each of the Borrowers hereby covenants and agrees that upon the entry of an Interim DIP Order (and when applicable, the Final DIP Order), and at all times thereafter: (a) Pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, administrative expenses of the kinds specified in or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; and (b) which shall at all times be senior to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law. (b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) of the Bankruptcy Code, be subject and subordinate to the Carve-Out and shall be considered an administrative expense allowed under Section 503(b) of the Bankruptcy Code, shall be against each Borrower on a joint and several basis, and shall be payable from and have recourse to all property of the Debtors’ estates (including, without limitation, all claims and causes of action arising under chapter 5 of the Bankruptcy Code and any the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim. (c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below: (i) pursuant to Section 364(d)(1) of the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases; (ii) pursuant to Section 364(c)(3) of the Bankruptcy Code, subject to the Carve-Out, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and (iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility. (d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases. (e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP Order.
Appears in 2 contracts
Sources: Superpriority Senior Secured Priming Debtor in Possession Credit Agreement (Cloud Peak Energy Inc.), Superpriority Senior Secured Priming Debtor in Possession Credit Agreement (Cloud Peak Energy Inc.)
Priority and Liens. Each The Borrower, FCI and Holdings each hereby covenants, represents and warrants that, upon entry of the Borrowers hereby covenants and agrees that upon the entry of an Interim DIP Order (and when applicable, the Final DIP Order), and at all times thereafter:
(ai) Pursuant pursuant to Section 364(c)(1) of the Bankruptcy Code, all the Obligations of its Obligations the Borrower, FCI and Holdings hereunder and under the Loan Documents and in respect of Indebtedness permitted by Sections 6.3(vi) and Section 6.3(vii) shall at all times constitute an allowed Superpriority Claim in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, having priority over all administrative expenses of the kinds kind specified in Sections 503(b) or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; and (b) which shall at all times be senior to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) of the Bankruptcy Code, be subject and subordinate (ii) pursuant to the Carve-Out and shall be considered an administrative expense allowed under Section 503(b364(c)(2) of the Bankruptcy Code, the Obligations of the Borrower, FCI and Holdings hereunder and under the Loan Documents and in respect of Indebtedness permitted by Sections 6.3(vi) and Section 6.3(vii) shall at all times be against each Borrower secured by a perfected first priority Lien on a joint and several basis, and shall be payable from and have recourse to all unencumbered property of the Debtors’ estates Borrower, FCI and Holdings (including, without limitationbut not limited to, all claims and causes of action arising under chapter 5 property that secured the obligations of the Bankruptcy Code Borrower under the Existing Agreements prior to the Filing Date) and all cash maintained in the Letter of Credit Account and any the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit direct investments of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable funds contained therein and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(i) pursuant to Section 364(d)(1) of the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(iiiii) pursuant to Section 364(c)(3) of the Bankruptcy Code, subject to the Carve-Out, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) Obligations of the Bankruptcy CodeBorrower, subject to the Carve-Out, upon entry of the Final DIP Order FCI and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties Holdings hereunder and under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit Loan Documents and in respect of the Secured PartiesIndebtedness permitted by Sections 6.3(vi) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP Order.Section
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Flagstar Companies Inc)
Priority and Liens. Each of the Borrowers hereby covenants and agrees that upon the entry of an Interim DIP Order (and when applicable, the Final DIP Order), and at all times thereafter:
(a) Pursuant The Debtors hereby covenant, represent and warrant that, upon entry of the Interim Order, the Obligations of the Debtors hereunder and under the Loan Documents, including without limitation, all obligations arising in connection with the cash management services provided by Bank One, N.A. and in respect of overdrafts referred to in Section 6.03(v) hereof, (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, having priority over all administrative expenses of the kinds kind specified in Sections 503(b) or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; and Code (b) which shall at all times be senior to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) of the Bankruptcy Code, be subject and subordinate to the Carve-Out and shall be considered an administrative expense allowed under Section 503(b) of the Bankruptcy Code, shall be against each Borrower on a joint and several basis, and claim shall be payable from and have recourse to all pre- and post-petition property of the Debtors’ estates (Debtors including, without limitation, all claims proceeds, dividends, distributions or other amounts received or realized in respect of (x) the Excluded Stock and causes (y) any amounts that are recovered or otherwise received by any of action arising under chapter 5 the Debtors in respect of the Avoidance Actions); (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 unencumbered pre- and post-petition property of the Debtors, other than the Excluded Stock and Avoidance Actions, wherever located, including, without limitation, all such unencumbered property located in Mexico, 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 junior Lien upon all pre- and post-petition property of the Debtors (other than the property that is subject to the existing Liens in favor of the Pre-Petition Agent and the Pre-Petition Lenders that presently secure the Pre-Petition Obligations) that is subject to (A) valid and perfected Liens in existence on the Filing Date, (B) 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 and any the proceeds thereof). Notwithstanding anything (but only to the contrary, such Superpriority Claim extent that the Agent and the Required Lenders shall be pari passu have agreed with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted the Debtors as to the Collateral Agent (for amount secured by such Liens and the benefit extent of the Secured Partiesproperty encumbered thereby), or (C) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable and perfected liens on all CollateralPermitted Liens, and shall constitute, subject to clause (d) below:
(iiv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid perfected first priority priority, senior priming lien on, other than the Receivables Equity, Lien on all property of the existing and after-acquired personal and Debtors (including without limitation, inventory, accounts receivable, equipment, machinery, intellectual property, general intangibles, real property, leasehold capital stock of all direct or indirect Subsidiaries of the Parent and the Borrower and membership interests in real property, limited liability companies and tangible and intangible personal property the proceeds thereof) that is subject to existing Liens that presently secure the Pre-Petition Obligations (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 Borrowers, including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other thanBankruptcy Code) which senior priming liens shall also prime any Liens granted after the Filing Date to provide adequate protection in respect of the Pre-Petition Agreement; subject, in each case, the A/R Securitization Facility Collateralonly to (x), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles to the extent approved and membership interests, capital stock and Equity Interests owned allowed by the BorrowersCourt, in each case, together 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 proceeds thereof giving of notice or lapse of time or both, the payment of accrued and all books unpaid professional fees and records relating disbursements incurred by the Debtors and any statutory committees appointed in the Cases due and owing as of the date of such Event of Default or the date the event occurred that would constitute an Event of Default (whether allowed as of such date or subsequently thereto; provided), that, such priority priming lien shall be subject plus $2,000,000 and (y) the payment of unpaid fees pursuant to 28 U.S.C. Section 1930 and to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(ii) pursuant to Section 364(c)(3) Clerk of the Bankruptcy CodeCourt ((x) and (y) 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, a valid perfected second priority lien on (A) and provided, further, that, except as otherwise provided in the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) Orders, no portion of the Bankruptcy CodeCarve-Out shall be utilized for the payment of professional fees and disbursements incurred in connection with any challenge to the amount, subject extent, priority, validity, perfection or enforcement of the indebtedness of the Debtors owing to the Pre-Petition Lenders, to the collateral securing such indebtedness, or to the perfection, priority or validity of the Liens granted in favor of the Pre-Petition Lenders with respect thereto or to any other claims of the Pre-Petition Lenders against any one or more of the Debtors. The Lenders 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 and be continuing, the Debtors shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. Section 330 and 11 U.S.C. Section 331, as the same may be due and payable, and the same shall not reduce the Carve-Out, upon entry of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(db) The Liens granted As to all real property, if any, the Collateral Agent (for title to which is held by the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, Borrower or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control of which is held by any Agent the Borrower or any Secured Party ofof the other Debtors pursuant to leasehold interest, or overand which secures the obligations under the Pre-Petition Agreement, the Borrower and each of the other Debtors hereby assigns and conveys as security, grants a security interest in, hypothecates, mortgages, pledges and sets over unto the Agent on behalf of the Lenders all of the right, title and interest of the Borrower and such other Debtor 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 such other Debtor in and to all buildings, improvements, and fixtures related thereto, any Collaterallease or sublease thereof, as set forth all general intangibles relating thereto and all proceeds thereof. The Borrower and each other Debtor acknowledges that, pursuant to the Orders, the Liens in favor of the Interim DIP OrderAgent on behalf of the Lenders in all of such real property and leasehold instruments, if any, shall be perfected without the recordation of any instruments of mortgage or assignment. The Borrower and each of the other Debtors further agrees that, upon the request of the Agent, the Borrower and such other Debtor 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 (Thermadyne Holdings Corp /De)
Priority and Liens. Each (a) Subject to the Orders, the Credit Parties hereby covenant, represent and warrant that, upon entry of the Borrowers hereby covenants and agrees that upon the entry of an Interim DIP Order (and the Final Order, when applicable) by the Bankruptcy Court, the Final DIP Order)Obligations of the Credit Parties, and shall at all times thereaftertimes, pursuant to:
(ai) Pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an joint and several allowed Superpriority Claim superpriority administrative expense claims in the Cases: (aCases having priority over all administrative expenses of the kind specified in Sections 503(b) except as set forth in or 507(b) of the Interim DIP Order (Bankruptcy Code, and when applicable, the Final DIP Order), with priority over any and all administrative expense expenses or other claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, administrative expenses of the kinds specified in or ordered pursuant to Bankruptcy Code Sections arising under sections 105, 326, 328, 330, 331, 364, 503(a503(b), 503(b506(c), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision or 1114 of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; and (b) which shall at all times be senior to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.;
(bii) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A364(c)(2) of the Bankruptcy Code, be secured by a perfected first priority Lien on all pre- and post-petition property of the Credit Parties and their respective estates that as of the Filing Date was not subject to valid, perfected and subordinate to the Carvenon-Out and shall be considered an administrative expense allowed under Section 503(bavoidable Liens as set forth in paragraph 8(a) of the Bankruptcy Code, shall be against each Borrower on a joint Interim Order and several basis, and shall be payable from and have recourse to all property the analogous section of the Debtors’ estates (includingFinal Order, without limitation, all claims and causes with such Lien extending to any proceeds of action arising under chapter 5 of the Bankruptcy Code and any the proceeds thereof). Notwithstanding anything avoidance actions to the contrary, extent set forth in such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.paragraphs in the Orders;
(ciii) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(i) pursuant to Section 364(d)(1) of the Bankruptcy Code, be secured by a valid perfected first priority senior priming lien on, other than the Receivables Equity, Lien on all of the existing pre- and afterpost-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal petition property of the Borrowers, including, without limitation, Credit Parties and their respective estates that as of the Filing Date was subject to existing Liens securing the Credit Parties’ Indebtedness under the Existing Facilities and any secured obligations to any Specified Guilds (the “Primed Liens”). Such priming Lien shall be senior to (A) all cash and cash equivalents, all surface land, accounts receivable and other receivables Primed Liens (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien but shall be subject to and not senior to any valid, perfected and unavoidable interests of other Persons arising out of Liens, if any, on such property in existence as of the Prior Permitted Filing Date to the extent such Persons’ Liens were senior to the Primed Liens and unavoidable under applicable non bankruptcy law) and (B) any account holding Liens granted after the Filing Date to provide adequate assurance deposits for the benefit protection in respect of the Borrowers’ utility providers during Existing Facilities or the pendency of the CasesGuild Liens;
(iiiv) pursuant to Section 364(c)(3) of the Bankruptcy Code, subject to be secured by a perfected junior Lien upon all pre- and post-petition property of the Carve-Out, a valid perfected second priority lien on (A) the Receivables Equity Credit Parties and (B) any collateral subject to a Prior Permitted Lien their respective estates (other than the A/R Securitization Facility Collateral); and
property described in clauses (iiiii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) of this Section 2.16 as to which the liens in favor of the Administrative Agent with respect to such property shall be valid as described in such clauses) that is subject to valid, perfected and enforceable against any trustee or any other estate representative appointed or elected unavoidable Liens in existence on the CasesFiling Date, upon the conversion of any of the Cases junior to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoingsuch valid, and/or upon the dismissal of any of the Cases.
(e) All perfected and non-avoidable Liens; Each of the Liens described granted in this Section 2.19 that have been granted favor of the Administrative Agent pursuant to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP Order.preceding clauses
Appears in 1 contract
Priority and Liens. Each Borrower covenants, represents and warrants that, upon entry of the Borrowers hereby covenants and agrees that upon the entry of an Interim DIP Order (and when applicableFinal Order, the Final DIP Order), and at all times thereafter:
Obligations (ai) Pursuant pursuant to Section section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, having priority over all administrative expenses of the kinds kind specified in or ordered pursuant to Bankruptcy Code Sections sections 105, 326, 328, 330, 331, 364, 503(a503(b), 503(b506(c), 507(a), 507(b), 546(c), 546(d), 726, 1113 ) and 1114, and any other provision 726 of the Bankruptcy Code, as provided under Section 364(c)(1(ii) of the Bankruptcy Code; and (b) which shall at all times be senior pursuant to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(Asection 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a perfected Lien on all unencumbered pre-petition and post-petition property of the Borrowers (other than the portion of the capital stock of each Foreign Subsidiary that is not subject to a Lien securing the Existing Agreements) and subordinate on all cash maintained in the Cash Collateral Account, the Concentration Account and each Depository Account and any direct investments of the funds contained therein, (iii) pursuant to the Carve-Out and shall be considered an administrative expense allowed under Section 503(bsection 364(c)(3) of the Bankruptcy Code, shall be against each Borrower on secured by a joint perfected Lien upon all pre-petition and several basis, and shall be payable from and have recourse to all post-petition property of the Debtors’ estates Borrowers (includingother than the property that is subject to existing Liens that presently secure the obligations of the Borrowers and their respective Subsidiaries under the Existing Agreements, without limitation, all claims as to which the Lien in favor of the Junior Lenders will be as described in clause (iv) below) that is subject to valid and causes of action arising under chapter 5 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 section 546(b) of the Bankruptcy Code and any the proceeds thereof). Notwithstanding anything or to the contraryPermitted Liens, junior to such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable valid and perfected liens on all Collateral, Liens and shall constitute, subject to clause (d) below:
(iiv) pursuant to Section section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid perfected first priority priming lien on, other than the Receivables Equity, Lien on all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including without limitation, Accounts, instruments, contract rights, chattel paper, general intangibles (including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateralcauses of action), inventoryInventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patentsdocuments of title, trade namesintellectual property, trademarksrights under license agreements, copyrightsreal estate (whether owned or leased) and all proceeds thereof, other general intangibles upon which a Lien has been granted (a) under the Existing Agreements to secure the Borrowers' and membership intereststheir respective Subsidiaries' prepetition Indebtedness under the Existing Agreements and (b) in connection with Adequate Protection Obligations, capital stock and Equity Interests owned in all cases subject only to (1) the Carve-Out, (2) any Liens in existence on the Petition Date to which the Liens being primed by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be Loan Documents are subject or become subject subsequent to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(ii) pursuant to Section 364(c)(3Petition Date as permitted by section 546(b) of the Bankruptcy Code, (3) Liens incurred pursuant to the Senior Subsequent DIP Agreement and (4) the Existing Lender Claim. The Junior Lenders agree that so long as no Default or Event of Default shall have occurred, the Borrowers shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. section 330 and 11 U.S.C. section 331, as the same may be due and payable, and such payments shall not reduce the Carve-Out; provided that following the Termination Date amounts in the Cash Collateral Account shall not be subject to the Carve-Out, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP Order.
Appears in 1 contract
Sources: Junior Subsequent Debtor in Possession Credit Agreement (Nutramax Products Inc /De/)
Priority and Liens. Each of the Borrowers Borrower and each Guarantor hereby covenants covenants, represents and agrees that warrants that, upon the entry of an the Interim DIP Order (and when applicableOrder, the Final DIP Order), Obligations of the Borrower and at all times thereafter:
such Guarantor hereunder and under the Loan Documents: (ai) Pursuant pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim Claim; (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 unencumbered real, personal and mixed property of the Borrower and such Guarantor and on all cash maintained in the Cases: (a) except as set forth in the Interim DIP Order (L/C Cash Collateral Account and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any investments of the Cases funds contained therein (excluding any avoidance actions under the Bankruptcy Code (but including the proceeds therefrom)); and (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a perfected Lien upon all real, personal and mixed property of the Borrower and such Guarantor that is subject to valid and perfected liens in existence on the Petition Date, junior to such valid and perfected Liens, subject and subordinated in each case with respect to clauses (i) through (iii) above, only to the Carve-Out. Except for the Carve-Out having priority over the Obligations, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, administrative expenses of the kinds specified in or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; and (b) which Claims shall at all times be senior to the rights of the Borrowers and their estatesBorrower, and each Guarantor, any successor chapter 11 trustee or other estate representative and, subject to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) section 726 of the Bankruptcy Code, be subject and subordinate to the Carve-Out and shall be considered an administrative expense allowed under Section 503(b) of the Bankruptcy Codeany chapter 7 trustee, shall be against each Borrower on a joint and several basis, and shall be payable from and have recourse to all property of the Debtors’ estates or any other creditor (including, without limitation, all claims post-petition counterparties and causes of action arising other post-petition creditors) in the Cases or any subsequent proceedings under chapter 5 of the Bankruptcy Code and any the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(i) pursuant to Section 364(d)(1) of the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(ii) pursuant to Section 364(c)(3) of the Bankruptcy Code, subject to the Carve-Out, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP Order.any
Appears in 1 contract
Sources: Senior Secured Debtor in Possession Credit Agreement (Worldcom Inc)
Priority and Liens. Each of the Borrowers hereby covenants and agrees that upon the entry of an Interim DIP Order (and when applicable, the Final DIP Order), and at all times thereafter:
(a) Pursuant The Borrower and each of the Guarantors hereby covenants, represents and warrants that, upon entry of the Final Order, the Obligations of the Borrower and the Guarantors hereunder and under the Loan Documents and in respect of Indebtedness permitted by Section 6.03(vi): (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, having priority over all administrative expenses of the kinds kind specified in Sections 503(b) or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; and (b) which shall at all times be senior to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) of the Bankruptcy Code, be subject and subordinate to the Carve-Out and which shall be considered an administrative expense allowed under Section 503(b) of the Bankruptcy Code, shall be against each Borrower on a joint and several basis, and shall be payable from and have recourse to all property of the Debtors’ estates (including, without limitation, all claims and causes of action arising under chapter 5 of the Bankruptcy Code and any the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim shall be rank pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(i) pursuant to Section 364(d)(1) of the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(ii) pursuant to Section 364(c)(3) of the Bankruptcy Code, subject to the Carve-Out, a valid perfected second priority lien on (A) with the Receivables Equity Superpriority Claims in respect of the obligations under the Working Capital Facility and (B) any collateral subject with respect to a Prior Permitted Lien Copperweld, the Superpriority Claims granted to certain creditors of Copperweld pursuant to the adequate protection stipulation heretofore entered in the Cases on or about February 20, 2001 (other than as the A/R Securitization Facility Collateralsame may be amended, modified or extended from time to time by an order of the Bankruptcy Court, the "COPPERWELD STIPULATION"); and
(iiiii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved shall at all times be secured by the Bankruptcy Court, a valid perfected first priority lien Lien on (x) all present and future Inventory and Receivables of LTV Steel and Georgia Tubing and all present and future Receivables of Copperweld (including, without limitation, the Existing Receivables Portfolio and the Existing Inventory Portfolio) and the proceeds and products thereof, whether now owned or hereafter acquired, (y) the Hennepin Works to secure a portion of the Obligations equal to $28,500,000, and (z) all cash maintained in the Letter of Credit Account and any property or proceeds recovered from any Avoidance Actionsdirect investments of the funds contained therein; provided(iii) subject to paragraph (b) below, thatpursuant to Section 364(c)(3) of the Bankruptcy Code, there shall be no Lien on amounts held in trust secured by a Specified perfected Lien upon (x) all property of the Borrower for and the A/R Securitization Seller Guarantors that is subject to valid and perfected Liens in existence on the Filing Date or to valid Liens in existence on the secured parties under the A/R Securitization Facility.
(d) The Liens granted Filing Date that are perfected subsequent to the Collateral Agent (for the benefit of the Secured PartiesFiling Date as permitted by Section 546(b) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim to Permitted Liens and the liens on the Receivables Equity), (y) any lien that is avoided substantially all assets of VP Buildings and preserved for all other unencumbered (prior to the benefit granting of Liens to secure the Working Capital Facility) assets of the Borrowers Borrower and their estates under Section 551 the Guarantors, junior only to such valid and perfected Liens; subject only to (x) in the event of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims occurrence and during the continuance of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion an Event of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP Order.Default
Appears in 1 contract
Priority and Liens. Each (a) Subject to the Orders and the Security and Pledge Agreement, the Borrower and each of the Borrowers Guarantors hereby covenants covenants, represents and agrees that warrants that, upon the entry of an the Interim DIP Order (and when the Final Order, as applicable), the Final DIP Order)Obligations of the Borrower and the Guarantors hereunder and under the Loan Documents and in respect of Indebtedness owing to JPMorgan Chase Bank, N.A., any Lender and at all times thereafter:
any of their banking Affiliates permitted by Section 6.03(vi): (ai) Pursuant pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim administrative expense claims in the Cases having priority over all administrative expenses of the kind specified in 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 unencumbered property of the Borrower's and the Guarantors' respective estates in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, administrative expenses all present and future accounts receivable (other than, prior to any repurchase thereof by any of the kinds specified in or ordered Debtors, such accounts receivable sold to the Receivables Subsidiary prior to the Filing Date pursuant to the Permitted Receivable Purchase Facility), 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 (excluding (x) the Borrower's and the Guarantors' rights in respect of avoidance actions under the Bankruptcy Code Sections 105(it being understood that, 326notwithstanding such exclusion of avoidance actions, 328the proceeds of such actions (including, 330without limitation, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, assets as provided to which liens are avoided) shall be subject to such liens under Section 364(c)(1364(c)(2) of the Bankruptcy Code; Code and available to repay the Obligations) and (by) Joint Venture Interests and Specified LLC Interests and related assets as to which shall at all times (I) Liens thereon are not permitted to be senior to the rights granted or (II) as a result of the Borrowers granting of such Lien, the value of such interests and their estatesrelated assets would be materially adversely compromised (it being understood that, notwithstanding such exclusion of such interests and any successor trustee or other estate representative assets, the proceeds of such interests and assets shall be subject to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of such liens under Section 1129(a)(9)(A364(c)(2) of the Bankruptcy Code, be subject Code and subordinate available to repay the Carve-Out Obligations) and shall be considered an administrative expense allowed under on all cash maintained in the Letter of Credit Account and any direct investments of the funds contained therein; (iii) pursuant to Section 503(b364(c)(3) of the Bankruptcy Code, shall be against each Borrower on secured by a joint and several basis, and shall be payable from and have recourse to perfected Lien upon all property of the Debtors’ estates Borrower and the Guarantors (includingother than the property that is subject to existing Liens that presently secure the obligations of the Borrower and the Guarantors under the Existing Agreement and Liens that are junior to such existing Liens, without limitationas to which the Lien in favor of the Agent and the Lenders will be as described in clause (iv) of this sentence) that is subject to valid, all claims perfected and causes of action arising under chapter 5 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 and any the proceeds thereof). Notwithstanding anything or to the contraryPermitted Liens, junior to such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, perfected and non-avoidable Liens; and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(iiv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid perfected first priority priority, senior priming lien on, other than the Receivables Equity, Lien on all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, Borrower and the Guarantors (including without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit property of the Borrowers’ utility providers during Borrower and the pendency of the Cases;
Guarantors listed in clause (ii) pursuant of this sentence 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 (including without limitation, the Liens in favor of the Existing First Lien Lenders until such time as the conditions set forth in Section 364(c)(34.02(e) shall have been satisfied, and the Tranche B Lenders shall have advanced the Tranche B Loan) and Liens that are junior to such existing Liens (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 Agreement, senior to all of such Liens; provided, however, the Borrower and the Guarantors shall not be required to pledge to the Agent in excess of 65% of the capital stock of its direct Foreign Subsidiaries or any of the capital stock or interests of its indirect Foreign Subsidiaries (if adverse tax consequences would result to the Borrower) or Joint Venture Interests and Specified LLC Interests (if such pledge would result in the value of such Joint Venture Interests and Specified LLC Interests being materially adversely compromised); 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 $7,000,000 (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 ((x) and (y), collectively, the "Carve-Out"), provided that no portion of the Carve-Out may be utilized to fund prosecution or assertion of any claims against the Agent, the Lenders or the Issuing Lenders (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 distributions).
(b) The Lenders 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. ▇▇.▇▇. 328, 330 and 331, as the same may be due and payable, and the same shall not reduce the Carve-Out.
(c) Subject to the priorities set forth in subsection (a) above and to the Carve-Out, a valid perfected second priority lien on (A) as to all real property the Receivables Equity and (B) any collateral subject title to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved which is held by the Bankruptcy Court, a valid perfected first priority lien on any property Borrower or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of titleGuarantors, or the possession or control of which is held by any Agent the Borrower or any Secured Party ofof the Guarantors pursuant to leasehold interests and which secures the obligations under the Existing Agreement, or overthe 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 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 such Guarantor in and to all buildings, improvements, and fixtures related thereto, any Collaterallease or sublease thereof, as set forth all general intangibles relating thereto and all proceeds thereof. The Borrower and each Guarantor acknowledges that, pursuant to the Orders, the Liens in favor of the Interim DIP OrderAgent 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 agree that, upon the 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, Term Loan and Guaranty Agreement (Tower Automotive Inc)
Priority and Liens. Each of the Borrowers hereby covenants and agrees that upon the entry of an Interim DIP Order (and when applicable, the Final DIP Order), and at all times thereafter:
(a) Pursuant 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 the Guarantors hereunder and under the Loan Documents and in respect of Indebtedness arising after the Filing Date owed to any Lender (or its banking Affiliates) permitted by Section 6.03(viii): (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an joint and several allowed Superpriority Claim in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, having priority over all administrative expenses of the kinds kind specified in Sections 503(b) or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy CodeCode pari passu only with the superpriority claim granted in connection with the Bank One DIP; and (bii) which shall at all times be senior pursuant to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) of the Bankruptcy Code, be subject and subordinate to the Carve-Out and shall be considered an administrative expense allowed under Section 503(b364(c)(2) of the Bankruptcy Code, shall at all times be against each Borrower secured by a perfected first priority Lien on a joint all tangible and several basis, and shall be payable from and have recourse to all intangible property of the Debtors’ Borrower's and the Guarantors' respective estates in the Cases that is not subject to valid, perfected and non-avoidable liens in existence as of the Filing Date, including, without limitation, unencumbered aircraft, spare engines, spare parts inventory, accounts receivable, general intangibles (including, without limitation, all claims rights to receive the equity value of property subject to Liens referred to in Section 6.01(i) and causes of action arising under chapter 5 Permitted Liens after the payment in full of the Bankruptcy Code and 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 thereofof any disposition of any such Supporting Route Facilities, Gate Leaseholds and/or Foreign Slots). Notwithstanding anything to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuingtrademarks, validtradenames, binding, enforceable, non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(i) pursuant to Section 364(d)(1) of the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, all of the existing and after-acquired personal and real propertyinventory, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, (including, without limitation, leasehold interests in hangars and parts depots) and other property, 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 cash equivalentsany direct investments of the funds contained therein (excluding (v) the Avoidance Actions (it being understood that, all surface land, accounts receivable and other receivables (other than, in each casenotwithstanding such exclusion, the A/R Securitization Facility Collateralproceeds of such actions shall be available to repay the Obligations), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by (w) the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, Escrow Accounts (it being understood that, notwithstanding such priority priming lien 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 Prior Permitted Liens first priority Lien described in this clause), (x) the Section 1110 Assets, (y) the Bank One Collateral and (z) interests of the Borrower and any account holding adequate assurance deposits for Guarantor in the benefit 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 Borrowers’ utility providers during Lien described in this clause shall extend to the pendency proceeds of the Cases;
any disposition of any such joint venture interests and all distributions thereon), and (iiiii) 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 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), to the liens granted to Bank One in the Bank One Collateral or to Permitted Liens, junior to such valid and perfected Liens, subject 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 otherwise reported in writing to the Agents, to the extent allowed by the Bankruptcy Court at any time) and (y) the payment of unpaid fees pursuant to 28 U.S.C. § 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 Lenders, the Paying Agent, the 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. §§ 321, 330 and 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, a valid perfected second priority lien on (A) as to all real property the Receivables Equity and (B) any collateral subject title to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved which is held by the Bankruptcy Court, a valid perfected first priority lien on any property Borrower or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of titleGuarantors, or the possession or control of which is held by any Agent the Borrower or any Secured Party ofof the Guarantors pursuant to leasehold interest, or overthe Borrower and each Guarantor 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 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 such Guarantor in and to all buildings, improvements, and fixtures related thereto, any Collaterallease or sublease thereof, as set forth all general intangibles relating thereto and all proceeds thereof. The Borrower and each Guarantor acknowledges that, pursuant to the Orders, the Liens in favor of the Collateral Agent on behalf of the Lenders in all of such real property and leasehold instruments (limited, in the Interim DIP Ordercase 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), 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.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Guaranty Agreement (Ual Corp /De/)
Priority and Liens. Each (1) The Borrower hereby covenants, represents and warrants that, upon entry of the Borrowers hereby covenants and agrees that upon the entry of an Interim DIP Order (and when the Final Order, as applicable), the Final DIP Order)obligations of the Borrower hereunder and under the other Credit Documents, and at all times thereafter:
(ai) Pursuant pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall shall, to the maximum extent permitted by law, at all times constitute an allowed Superpriority Claim in the Cases: Super-priority Claims, (aii) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, administrative expenses of the kinds specified in or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1364(c)(2) of the Bankruptcy Code; and (b) which shall at all times be senior to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) of the Bankruptcy Code, be subject and subordinate to the Carve-Out and shall be considered an administrative expense allowed under Section 503(b3) of the Bankruptcy Code, shall at all times be against each Borrower on secured by a joint and several basisperfected lien on, and security interest in, all present and after acquired property of the Borrower (excluding however, capital stock of any Foreign Subsidiary, which Foreign Subsidiary constitutes a "Controlled Foreign Corporation" within the meaning of Section 951 of the Internal Revenue Code, constituting 35% of the combined voting power of all classes of capital stock of such Foreign Subsidiary entitled to vote), which perfected lien shall be payable from and have recourse a first priority lien with respect to all property of the Debtors’ estates (including, without limitation, all claims and causes of action arising under chapter 5 of the Bankruptcy Code and Borrower that is not subject to any the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable valid and perfected liens on all Collateral, as of the Filing Date and shall constitutebe junior in priority to valid and perfected liens, subject to if any, as of the Filing Date (other than those described in clause (diii) below:
); and (iiii) pursuant to ------------ Section 364(d)(1) of the Bankruptcy Code, shall at all times be secured by a valid perfected first priority priority, senior priming lien on, other than the Receivables Equity, on all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the BorrowersBorrower that secures the Prepetition Revolving Credit Obligations and the Prepetition Note Purchase Obligations, including, without limitation, all cash subject and cash equivalents, all surface land, accounts receivable and other receivables (other than, subordinate in each casecase with respect to subclauses (i) through (iii) above, only to (x) following the -------------- ----- occurrence and during the continuance of a Default or an Event of Default, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles payment (as the same may be due and membership interests, capital stock payable) of professional fees and Equity Interests owned disbursements allowed by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(ii) pursuant to Section 364(c)(3) order of the Bankruptcy CodeCourt and incurred by the Borrower and not to exceed $1,000,000 (plus any unpaid professional fees and disbursements previously incurred, subject accrued or invoiced prior to the Carve-Outsuch Default or Event of Default, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equitysubsequently awarded), (y) the payment of unpaid fees pursuant to 28 U.S.C. Section 1930 and any lien that is avoided and preserved for fees payable to the benefit Clerk of the Borrowers Bankruptcy Court, and their estates (z) up to $650,000 for payment of trust fund taxes (collectively, the "Carve-Out"); provided that --------- -------- the Borrower makes no representation as to the perfection of any Lien on any Proprietary Rights Collateral to the extent such Proprietary Rights Collateral is registered, or for which registration has been applied, in a jurisdiction outside of the United States and such jurisdiction requires a filing or similar process to perfect such security interest. The Lenders agree that so long as no Default or Event of Default shall have occurred and be continuing, the Borrower shall be permitted to pay compensation and reimbursement of expenses allowed and payable under Section 551 Sections 330 and 331 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 orders of the Bankruptcy Code or in any other proceedings related to any of Court, as the foregoingsame may be payable, and/or upon and the dismissal of any of amounts so paid shall not reduce the CasesCarve-Out.
(e2) All of As to all Collateral, including without limitation, all real property the Liens described in this Section 2.19 that have been granted title to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings which is held by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of titleBorrower, or the possession or control of which is held by any the Borrower pursuant to leasehold interest, the Borrower hereby assigns and conveys as security, grants a security interest in, hypothecates, mortgages, pledges and sets over unto the Agent or any Secured Party ofall of the right, or overtitle and interest of the Borrower in all of such Collateral, including without limitation, all owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of the Borrower in and to all buildings, improvements and fixtures related thereto, any Collaterallease or sublease thereof, as all general intangibles relating thereto and all proceeds thereof. The Borrower acknowledges that, pursuant to the Orders, the Liens granted in favor of the Agent (on behalf of the Lenders) in all of the Collateral shall be perfected without the recordation of any Code financing statements, notices of Liens or other instruments of mortgage or assignment. The Borrower further agrees that (i) the Agent shall have the rights and remedies set forth in Articles IX and X in respect of the Interim DIP OrderCollateral and (ii) if ----------- - requested by the Agent, the Borrower shall enter into separate security agreements, pledge agreements and fee mortgages with respect to such Collateral on terms reasonably satisfactory to the Agent.
Appears in 1 contract
Priority and Liens. Each Borrower covenants, represents and warrants that, upon entry of the Borrowers hereby covenants and agrees that upon the entry of an Interim DIP Order (and when applicableFinal Order, the Final DIP Order), and at all times thereafter:
Obligations (ai) Pursuant pursuant to Section section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, having priority over all administrative expenses of the kinds kind specified in or ordered pursuant to Bankruptcy Code Sections sections 105, 326, 328, 330, 331, 364, 503(a503(b), 503(b506(c), 507(a), 507(b), 546(c), 546(d), 726, 1113 ) and 1114, and any other provision 726 of the Bankruptcy Code, as provided under Section 364(c)(1(ii) of the Bankruptcy Code; and (b) which shall at all times be senior pursuant to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(Asection 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a perfected first priority Lien on all unencumbered prepetition and postpetition property of the Borrowers (other than the portion of the capital stock of each Foreign Subsidiary that is not subject to a Lien securing the Existing Agreements) and subordinate on all cash maintained in the Cash Collateral Account, the Concentration Account and each Depository Account and any direct investments of the funds contained therein, (iii) pursuant to the Carve-Out and shall be considered an administrative expense allowed under Section 503(bsection 364(c)(3) of the Bankruptcy Code, shall be against each Borrower on secured by a joint perfected Lien upon all prepetition and several basis, and shall be payable from and have recourse to all postpetition property of the Debtors’ estates Borrowers (includingother than the property that is subject to existing Liens that presently secure the obligations of the Borrowers and their respective Subsidiaries under the Existing Agreements, without limitation, all claims as to which the Lien in favor of the Agent and causes of action arising under chapter 5 the Lenders will be as described in clause (iv) below) that is subject 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 section 546(b) of the Bankruptcy Code and any the proceeds thereof). Notwithstanding anything or to the contraryPermitted Liens, junior to such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable valid and perfected liens on all Collateral, Liens and shall constitute, subject to clause (d) below:
(iiv) pursuant to Section section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid perfected first priority priority, senior priming lien on, other than the Receivables Equity, Lien on all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including without limitation, Accounts, instruments, contract rights, chattel paper, general intangibles (including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateralcauses of action), inventoryInventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patentsdocuments of title, trade namesintellectual property, trademarksrights under license agreements, copyrightsreal estate (whether owned or leased) and all proceeds thereof, other general intangibles and membership interests, capital stock and Equity Interests owned by upon which a Lien has been granted (a) under the Existing Agreements to secure the Borrowers' and their respective Subsidiaries' prepetition Indebtedness under the Existing Agreements and (b) in connection with Adequate Protection Obligations, in each case, together with all cases subject only to (1) the proceeds thereof Carve-Out and all books (2) any Liens in existence on the Petition Date to which the Liens described in clauses (a) and records relating thereto; provided, that, such priority priming lien shall be (b) above are subject or become subject subsequent to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(ii) pursuant to Section 364(c)(3Petition Date as permitted by section 546(b) of the Bankruptcy Code. The Lenders agree that so long as no Default or Event of Default shall have occurred, the Borrowers 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 such payments shall not reduce the Carve-Out; provided that following the Termination Date amounts in the Cash Collateral Account shall not be subject to the Carve-Out, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP Order.
Appears in 1 contract
Sources: Debtor in Possession Credit Agreement (Nutramax Products Inc /De/)
Priority and Liens. Each (a) Subject to the Orders and the Security and Pledge Agreement, the Borrower and each of the Borrowers Guarantors hereby covenants covenants, represents and agrees that warrants that, upon the entry of an the Interim DIP Order (and when the Final Order, as applicable), the Final DIP Order)Obligations of the Borrower and the Guarantors hereunder and under the Loan Documents and in respect of Indebtedness owing to JPMorgan Chase Bank, N.A., any Lender and at all times thereafter:
any of their banking Affiliates permitted by Section 6.03(vi): (ai) Pursuant pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, having priority over all administrative expenses of the kinds kind specified in Sections 503(b) or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; and (b) which shall at all times be senior to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) of the Bankruptcy Code, be subject and subordinate to the Carve-Out and shall be considered an administrative expense allowed under Section 503(b) of the Bankruptcy Code, shall be against each Borrower on a joint and several basis, and shall be payable from and have recourse to all property of the Debtors’ estates (including, without limitation, all claims and causes of action arising under chapter 5 of the Bankruptcy Code and any the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(i) pursuant to Section 364(d)(1) of the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(ii) pursuant to Section 364(c)(3) of the Bankruptcy Code, subject to the Carve-Out, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved shall at all times be secured by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit all unencumbered property of the Secured Parties) Borrower's and such Superpriority Claimthe Guarantors' respective estates in the Cases, subject to the Carve-Out: (i) shall not be subject to Sections 506including, 510without limitation, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases all present and future accounts receivable (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity)than, (y) prior to any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) repurchase thereof by any intercompany or affiliate liens or claims of the Debtors, such accounts receivable sold to the Receivables Subsidiary prior to the Filing Date pursuant to the Permitted Receivable Purchase Facility), inventory, general intangibles, chattel paper, real property, leaseholds, fixtures, machinery and (iii) shall be valid equipment, deposit accounts, patents, copyrights, trademarks, tradenames, rights under license agreements and enforceable against any trustee or any other estate representative appointed or elected in the Casesintellectual property, upon the conversion capital stock of any Subsidiaries of the Cases to a case Borrower and Guarantors (excluding (x) the Borrower's and the Guarantors' rights in respect of avoidance actions under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP Order.it being
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Guaranty Agreement (Tower Automotive Inc)
Priority and Liens. (a) Each of the Borrowers Loan Parties hereby covenants and agrees that upon the entry of an of, and subject to, the Interim DIP Order (and and, when applicableentered, the Final DIP Order)) and subject to the Carve Out in all respects, and at all times thereafterthe Obligations:
(ai) Pursuant pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim super-priority administrative expense claim in the Cases: Cases (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order“Superpriority Claim”), with subject only to the Carve Out and having priority over any and all other administrative expense expenses, diminution claims and unsecured all other priority claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-OutDebtors, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time now existing or hereafter arising, of any kind or nature whatsoever, including, without limitation, all other administrative expenses of the kinds kind specified in sections 503(b) and 507(b) of the Bankruptcy Code, and over any and all other administrative expenses or ordered pursuant to Bankruptcy Code Sections other claims arising under sections 105, 326, 327, 328, 330, 331, 364365, 503(a503(b), 503(b506(c), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision or 1114 of the Bankruptcy Code, as provided under Section 364(c)(1) which super-priority claims in respect of the Bankruptcy Code; and (b) which Facilities shall at all times be senior to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.rank pari passu with each other;
(bii) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) of the Bankruptcy Code, be subject and subordinate pursuant to the Carve-Out and shall be considered an administrative expense allowed under Section 503(bsection 364(c)(2) of the Bankruptcy Code, shall be against each Borrower secured by a valid, binding, continuing, enforceable, fully perfected first priority Lien on a joint all Collateral that is not subject to valid, perfected and several basis, and unavoidable Liens; it being agreed that such Collateral shall be payable from and have recourse to all property of the Debtors’ estates (including, without limitation, all exclude claims and causes of action arising under chapter 5 sections 502(d), 544, 545, 547, 548, 550 and 553 of the Bankruptcy Code and any (collectively “Avoidance Actions”) but include, subject to the entry of the Final DIP Order by the Bankruptcy Court, the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.and
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(iiii) pursuant to Section 364(d)(1364(d)(l) of the Bankruptcy Code, shall be secured by a valid valid, binding, continuing, enforceable, fully perfected first priority senior priming lien onLien on all Collateral, other than which Liens shall be senior to the Receivables EquityLiens (the “Primed Liens”) securing the Prepetition Credit Facilities and any Liens to which the Primed Liens are senior or rank pari passu, all and which shall also prime any Liens granted after the commencement of the existing and after-acquired personal and real property, leasehold interests Cases to provide Adequate Protection Liens to the extent of any diminution in real property, and tangible and intangible personal property the value of the Borrowerscollateral of the Primed Liens as provided in the DIP Orders in respect of any of the Primed Liens, including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, subject in each casecase only to (1) Non-Primed Excepted Liens, (2) the A/R Securitization Facility CollateralCarve Out and (3) and as otherwise set forth in the DIP Orders (the “Priming Liens”), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;and
(iiiv) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable fully perfected Lien on all Collateral that is subject to the Carve-Out, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Customary Permitted Lien (other than the A/R Securitization Facility Collateral); andLiens;
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(db) The Priming Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject and junior to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy CodeCarve Out in all respects, (iii) shall not be subordinate to, or pari passu with, junior to Liens that are senior to the Primed Liens (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equityunless such Liens are themselves Primed Liens), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against senior to any trustee Liens to which the Primed Liens are senior or any rank pari passu, (iv) shall be senior in all respects to the interests in such property of the holders of the obligations in respect of the Primed Liens (other estate representative appointed or elected than the Prepetition Cash Collateralized LC Liens, as defined in the CasesInterim DIP Order), upon and (v) shall also be senior to any Liens granted after the conversion of any Petition Date to provide adequate protection in respect of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the CasesPrimed Liens.
(ec) All The relative priorities of the Liens described in this Section 2.19 that have been granted 2.24 with respect to the Collateral Agent (for shall be as set forth in the benefit DIP Orders and the Collateral Documents. In accordance with the DIP Orders, all of the Secured Parties) Liens described in this Section 2.24 shall be effective and perfected upon entry of the Interim DIP OrderOrders, without the necessity of the execution, recordation of or filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any the Collateral Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP OrderOrders.
Appears in 1 contract
Sources: Superpriority Senior Secured Debtor in Possession Credit Agreement (McDermott International Inc)
Priority and Liens. Each of the Borrowers hereby covenants and agrees that upon the entry of an Interim DIP Order (and when applicable, the Final DIP Order), and at all times thereafter:
(a) Pursuant The Borrower hereby covenants, represents and warrants that, upon entry of the Interim Order and the Final Order (when entered), the Obligations of the Borrower hereunder and under the other Loan Documents: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against in the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, Case having priority over all administrative expenses of the kinds kind specified in Sections 503(b) or ordered pursuant to 507(b) of the Bankruptcy Code and any and all expenses and claims of the Borrower, whether heretofore or hereafter incurred, including but not limited to the kind specified in Sections 105, 326, 328, 330, 331, 364, 503(a503(b), 503(b506(c), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) 1112 or 1114 of the Bankruptcy Code; and (bii) which shall at all times be senior pursuant to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) of the Bankruptcy Code, be subject and subordinate to the Carve-Out and shall be considered an administrative expense allowed under Section 503(b364(c)(2) of the Bankruptcy Code, shall at all times be against each Borrower secured by a perfected first priority Lien on a joint and several basis, and shall be payable from and have recourse to all unencumbered property of the Debtors’ estates Borrower (including, without limitation, all claims excluding the Borrower’s rights in respect of avoidance actions and causes of action arising under chapter 5 of the Bankruptcy Code and any the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(i) pursuant to Section 364(d)(1) of thereof under the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, ) and on all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, without limitation, all Borrower’s cash and cash equivalents, all surface land, accounts receivable and other receivables ; (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(iiiii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a perfected Lien upon all property of the Borrower that is subject 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 Section 546(b) of the Bankruptcy Code or to Permitted Liens, junior to such valid and perfected Liens; and (iv) without limiting the scope of the Liens described in clauses (ii) and (iii) above, pursuant to Section 364(d)(1) of the Bankruptcy Code, the obligations of the Borrower to repay the Obligations shall be secured by a perfected Lien, pursuant to Section 364(d)(1) of the Bankruptcy Code, upon all property of the Borrower that secures (x) the Montana Collateral and (y) the South Dakota Collateral, which Lien shall have the same priority vis a vis each other Lien on the same collateral as the Lien which secured the Montana Bonds and the South Dakota Bonds, respectively, immediately prior to the repayment in full of the CSFB Loans on the Term Loan Commitment Effective Date and to any Liens granted after the Petition Date to provide adequate protection in respect thereof; provided that (i) the proceeds of the Montana Collateral shall only be available to the Secured Parties in respect of Obligations not to exceed the Montana Maximum Amount and (ii) the proceeds of the South Dakota Collateral shall only be available to the Secured Parties in respect of Obligations not to exceed the South Dakota Maximum Amount (the limitation contained in the foregoing proviso will only apply to the proceeds of the collateral secured by the Liens described in this clause(iv) and not to any other Liens in favor of the Secured Parties), subject in each of clauses (i), (ii), (iii) and (iv) only to the Carve-Out. Notwithstanding anything in any Loan Document, 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 Loan Parties owing to the Agent, the LC Issuer or the Lenders or to the Collateral. The Agent, the LC Issuer and the Lenders agree that (a) so long as no Default or Unmatured Default shall have occurred, the Borrower shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. § 330 and 11 U.S.C. § 331, as the same may be due and payable, and the same shall not reduce the Carve-Out and (b) the amount of any retainers received by any professionals retained in the Case shall not reduce the Carve-Out. In addition, each Loan Party acknowledges and agrees that each Guarantor is granting Liens to the Agent for the benefit of the Secured Parties pursuant to the Security Agreement and the Mortgages (if any) to which such Guarantor is or may become a party.
(b) Subject to the priorities set forth in Section 2.25(a) and to the Carve-Out, a valid perfected second priority lien on (A) as to all real property the Receivables Equity and (B) any collateral subject title to a Prior Permitted Lien (other than which is held by the A/R Securitization Facility Collateral); and
(iii) Borrower, or the possession of which is held by the Borrower pursuant to Section 364(c)(2) leasehold interest, the Borrower hereby assigns and conveys as security, grants a security interest in, hypothecates, mortgages, pledges and sets over unto the Agent on behalf of the Bankruptcy CodeSecured Parties all of the right, subject title and interest of the Borrower 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 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 acknowledges that, pursuant to the Carve-OutInterim Order and the Final Order (when entered), upon entry the Liens in favor of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) Parties in all of such real property and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) leasehold instruments shall be valid and enforceable against perfected without the recordation of any trustee instruments of mortgage or any other estate representative appointed or elected in the Casesassignment. The Borrower further agrees that, upon the conversion of any request of the Cases Agent, the Borrower shall enter into separate fee and leasehold mortgages in recordable form with respect to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted such properties on terms reasonably satisfactory to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP OrderAgent.
Appears in 1 contract
Priority and Liens. Each (a) Subject to the Orders and the Security and Pledge Agreement, the Borrower and each of the Borrowers Guarantors hereby covenants covenants, represents and agrees that warrants that, upon the entry of an the Interim DIP Order (and when the Final Order, as applicable), the Final DIP OrderObligations and the other Secured Obligations (including the obligations of the Borrower and the 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 at all times thereaftersubject, in each of clauses (i) through (iv) below, to the Carve-Out:
(ai) Pursuant pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim claims in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with Cases having priority over any and all administrative expense expenses, diminution claims (including the Superpriority Claims granted to the Existing Lenders) and unsecured all other claims against the Borrowers or their estates in any of Borrower and the Cases (but junior only to the Carve-OutGuarantors, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time now existing or hereafter arising, of any kind or nature whatsoever, including, without limitation, including all administrative expenses of the kinds kind specified in Sections 503(b) or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; and (b) which shall at all times be senior to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.;
(bii) Such Superpriority Claim shall, for purposes of pursuant to Section 1129(a)(9)(A364(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 and subordinate to the Carve-Out and shall be considered an administrative expense allowed such liens under Section 503(b364(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 against each Borrower on a joint secured by valid, binding, continuing, enforceable and several basis, fully-perfected security interests in and shall be payable from Liens upon all tangible and have recourse to all intangible property of the Debtors’ estates Borrower and the Guarantors (includingprovided that as set forth in clause (iv) of this sentence, without limitationthe existing Liens that presently secure the obligations of the Borrower and the Existing Guarantors under the Existing Agreement will be primed by the Lien in favor of the Administrative Agent and the Lenders as described in clause (iv) of this sentence) that is subject to valid, all claims perfected and causes of action arising under chapter 5 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 and any (other than the proceeds thereof). Notwithstanding anything property referred to in clause (iv) below that is subject to the contraryexisting Liens described in clause (iv) below, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted as to which the Collateral Agent (for the benefit Lien in favor of the Secured PartiesAdministrative Agent and the Lenders will be as described in clause (iv) securing the Obligations are continuingbelow), junior to such valid, binding, enforceable, perfected and non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:Liens; and
(iiv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid valid, binding, continuing, enforceable and fully-perfected first priority senior priming lien on, other than the Receivables Equity, security interest in and senior priming Lien on all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, without limitation, all cash Borrower and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be Guarantors that is subject to existing Liens that presently secure Borrower's and the Prior Permitted Existing Guarantors' pre-petition Indebtedness under the Existing Agreement (but subject and subordinate to (A) the Carve-Out and (B) any Liens and any account holding adequate assurance deposits for in existence on the benefit of Filing Date to which the Borrowers’ utility providers during Liens being primed hereby are subject or become subject subsequent to the pendency of the Cases;
(ii) pursuant to Filing Date as permitted by Section 364(c)(3546(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 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, a valid perfected second priority lien on (A) as to all real property the Receivables Equity and (B) any collateral subject title to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved which is held by the Bankruptcy Court, a valid perfected first priority lien on any property Borrower or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of titleGuarantors, or the possession or control of which is held by any Agent the Borrower or any Secured Party ofof the Guarantors pursuant to leasehold interests and which secures the Existing Indebtedness, or overthe Borrower and each Guarantor 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 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 such Guarantor in and to all buildings, improvements, and fixtures related thereto, any Collaterallease or sublease thereof, as set forth all general intangibles relating thereto and all proceeds thereof. The Borrower and each Guarantor acknowledges that, pursuant to the Orders, the Liens in favor of the Interim DIP OrderAdministrative 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. Each (a) The Borrowers hereby covenant, represent and warrant that the Obligations of the Borrowers hereby covenants hereunder and agrees that upon under the entry Loan Documents and in respect of an Interim DIP Order Indebtedness permitted by Section 6.3(v): (and when applicable, the Final DIP Order), and at all times thereafter:
(ai) Pursuant pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim in the Cases: Claim; (aii) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, administrative expenses of the kinds specified in or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; and (b) which shall at all times be senior to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) of the Bankruptcy Code, be subject and subordinate to the Carve-Out and shall be considered an administrative expense allowed under Section 503(b364(c)(2) of the Bankruptcy Code, shall at all times be against each Borrower secured by a perfected first priority Lien on a joint and several basis, and shall be payable from and have recourse to all unencumbered property of the Debtors’ estates (including, without limitation, Borrowers and on all claims cash maintained in the Letter of Credit Account and causes of action arising under chapter 5 any direct investments of the Bankruptcy Code and any funds contained therein, provided that amounts in the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim Letter of Credit Account shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(i) pursuant to Section 364(d)(1) of the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall not be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
Carve-Out; (iiiii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a perfected Lien upon all property of the Borrowers that is subject to valid and perfected Liens in existence on the Filing Date (including the perfected liens on the stock of certain Subsidiaries of the Parent (“Stock Liens”) in favor of (x) the trustee for the holders of Indebtedness of the Parent under the Indentures, and (y) the holders of obligations under the Prepetition Credit Agreement and the Surety Bonds) 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 certain property that is subject to the existing Liens that secure obligations under the Prepetition Agreements, which liens shall be primed by the liens to be granted to the Administrative Agent described in the following clause (iv); and in addition, (iv) pursuant to Section 364(d)(l) of the Bankruptcy Code, be secured by a perfected first priority, senior priming Lien on all of the property of the Borrowers (including, without limitation, inventory, receivables, rights under license agreements, property, plant and equipment and interests in leaseholds) that is subject to the existing liens (the “Primed Liens”, it being understood that the Stock Liens shall not be primed or constitute part of the Primed Liens) which secure (x) on a pari passu basis, the obligations of the Borrowers to the lenders party to the Prepetition Credit Agreement and the obligations of the Borrowers in connection with the Surety Bonds, and (y) other obligations or Indebtedness of the Borrowers pursuant to the other Prepetition Agreements, all of which Primed Liens shall be primed by and made subject and subordinate to the perfected first priority senior Liens to be granted to the Administrative Agent, which senior priming Liens in favor of the Administrative Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens but shall not prime Liens, if any, to the extent such Liens secure obligations (other than obligations under the Prepetition Agreements) in an aggregate amount less than or equal to $20,000,000, subject in each case 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 Borrowers and any statutory committees appointed in the Cases in an aggregate amount not in excess of $5,000,000 and (y) the payment of fees pursuant to 28 U.S.C. § 1930 and to the Clerk of the Bankruptcy Court (collectively, the “Carve-Out”), provided that 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 Borrowers owed with respect to the parties primed by the priming Liens or to the collateral securing such Indebtedness or any other action against such parties. Amounts in the Letter of Credit Account shall not be subject to the Carve-Out. By execution hereof, a valid perfected second priority lien on the Borrowers hereby consent to the priming Liens referenced in clause (Aiv) above. Amounts in the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) Letter of the Bankruptcy Code, Credit Account shall not be subject to the Carve-Out. Notwithstanding the foregoing, upon entry so long as no Event of Default or event which with the Final DIP Order giving of notice or lapse of time or both would constitute an Event of Default shall have occurred and be continuing, the Borrowers shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. § 330 and 11 U.S.C. § 331, as the same may be due and payable, and any compensation and expenses previously paid, or accrued but unpaid, prior to the occurrence of such Event of Default shall not reduce the Carve-Out.
(b) To the extent approved by the Bankruptcy Court, a valid perfected first priority prepetition creditor has a lien on any property or proceeds recovered from prepetition intercompany unsecured claims between and among the Borrowers and no liens on any Avoidance Actions; other assets of the Borrowers other than the stock of Restricted Subsidiaries (as defined in the Indentures), such liens shall not be primed, provided, however, that no payments may be made on account of such prepetition claims and the liens of the prepetition creditors shall not extend to the collateral securing the Indebtedness created by this Agreement.
(c) As to all real property the title to which is held by a Borrower or the possession of which is held by a Borrower pursuant to leasehold interest, the Borrowers hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Administrative Agent on behalf of the Lenders all of the right, title and interest of the Borrowers 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 Borrowers 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 Borrowers acknowledge that, there pursuant to the Final Order (as amended by the Amendment Order), the Liens in favor of the Administrative Agent on behalf of the Lenders in all of such real property and leasehold instruments of the Borrowers shall be no Lien perfected without the recordation of any instruments of mortgage or assignment. The Borrowers further agree that, upon the request of the Administrative Agent, in the exercise of its business judgment, the Borrowers shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on amounts held in trust by a Specified Borrower for terms satisfactory to the A/R Securitization Seller or the secured parties under the A/R Securitization FacilityAdministrative Agent.
(d) The Liens granted To the extent any Borrower makes aggregate payments to the Collateral Agent (for the benefit Lenders in excess of the Secured Partiesaggregate amount of all Loans received by such Borrower from the Lenders after the commencement of the Cases, then such Borrower, after the payment in full of all obligations of the Borrowers in respect of the Commitment and the termination of the Commitment, shall be entitled to a claim under Section 364(c)(1) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of against each other Borrower, in such amount as may be determined by the Bankruptcy CodeCourt taking into account the relative benefits received by each such person, (i) and such claims shall not be deemed to be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted and junior in any of all respects to the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or superpriority claims of the Debtors, Lenders and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been superpriority claims granted as adequate protection to the Collateral Agent (for the benefit of the Secured Primed Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP Order.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Guaranty Agreement (Federal Mogul Corp)
Priority and Liens. Each (a) The Borrower and each of the Borrowers Guarantors hereby covenants covenants, represents and agrees that warrants that, upon the entry of an the Interim DIP Order (and when the Final Order, as applicable), the Final DIP Order)Obligations of the Borrower and the Guarantors hereunder and under the Loan Documents and in respect of Indebtedness owing to JPMorgan Chase Bank, N.A., any Lender and at all times thereafter:
any of their banking Affiliates permitted by Section 6.03(vi): (ai) Pursuant pursua nt to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim administrative expense claims in the Cases having priority over all administrative expenses of the kind specified in 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 unencumbered property of the Borrower and the Guarantors’ respective estates in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, administrative expenses all present and future accounts receivable (other than such accounts receivable sold to the Receivables Subsidiary prior to the Filing Date pursuant to the Permitted Receivable Purchase Facility), Cash Collateralization, inventory, general intangibles, chattel paper, 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 kinds specified Borrower and Guarantors (excluding (x) the Borrower’s and the Guarantors’ rights in or ordered pursuant to respect of avoidance actions under the Bankruptcy Code Sections 105(it being understood that, 326notwithstanding such exclusion of avoidance actions, 328the proceeds of such actions (including, 330without limitation, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, assets as provided to which liens are avoided) shall be subject to such liens under Section 364(c)(1364(c)(2) of the Bankruptcy Code; Code and available to repay the Loans) and (by) Joint Venture Interests and related assets as to which shall at all times (I) Liens thereon are not permitted to be senior to the rights granted or (II) as a result of the Borrowers granting of such Lien, the value of such interests and their estatesrelated assets would be materially adversely compromised (it being understood that, notwithstanding such exclusion of such interests and any successor trustee or other estate representative assets, the proceeds of such interests and assets shall be subject to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of such liens under Section 1129(a)(9)(A364(c)(2) of the Bankruptcy Code, be subject Code and subordinate available to repay the Carve-Out Loans) and shall be considered an administrative expense allowed under on all cash maintained in the Letter of Credit Account and any direct investments of the funds contained therein; (iii) pursuant to Section 503(b364(c)(3) of the Bankruptcy Code, shall be against each Borrower on secured by a joint and several basis, and shall be payable from and have recourse to perfected Lien upon all property of the Debtors’ estates Borrower and the Guarantors (includingother than the property that is subject to existing Liens that presently secure the obligations of the Borrower and the Guarantors under the Existing Agreement and Liens that are junior to such existing Liens, without limitationas to which the Lien in favor of the Agent and the Lenders will be as described in clause (iv) of this sentence) that is subject to valid, all claims perfected and causes of action arising under chapter 5 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 and any the proceeds thereof). Notwithstanding anything or to the contraryPermitted Liens, junior to such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, perfected and non-avoidable Liens; and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(iiv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid perfected first priority priority, senior priming lien on, other than the Receivables Equity, Lien on all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, Borrower and the Guarantors (including without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit property of the Borrowers’ utility providers during Borrower and the pendency of the Cases;
Guarantors listed in clause (ii) pursuant of this sentence 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 (including without limitation, the Liens in favor of the Existing First Lien Lenders until such time as the conditions set forth in Section 364(c)(34.02(e) shall have been satisfied and the Tranche B Lenders shall have advanced the Tranche B Loan and any Liens that are junior to such Liens) and Liens that are junior to such existing Liens (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 Agreement, senior to all of such Liens; provided, however, the Borrower shall not be required to pledge to the Agent in excess of 65% of the capital stock of its direct Foreign Subsidiaries or any of the capital stock or interests of its indirect Foreign Subsidiaries (if adverse tax consequences would result to the Borrower) or Joint Venture Interests (if such pledge would result in the value of such Joint Venture Interests being materially adversely compromised); 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 $7,000,000 (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. § 1930 and to the Clerk of the Bankruptcy Court (collectively, the “Carve- Out ”). The Lenders 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. §§ 328, 330 and 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, a valid perfected second priority lien on (A) as to all real property the Receivables Equity and (B) any collateral subject title to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved which is held by the Bankruptcy Court, a valid perfected first priority lien on any property Borrower or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of titleGuarantors, or the possession or control of which is held by any Agent the Borrower or any Secured Party ofof the Guarantors pursuant to leasehold interest and which secures the obligations under the Existing Agreement, or overthe 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 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 such Guarantor in and to all buildings, improvements, and fixtures related thereto, any Collaterallease or sublease thereof, as set forth all general intangibles relating thereto and all proceeds thereof. The Borrower and each Guarantor acknowledges that, pursuant to the Orders, the Liens in favor of the Interim DIP OrderAgent 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 agree that, upon the 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
Priority and Liens. Each of the Borrowers hereby covenants and agrees that upon the entry of an Interim DIP Order (and when applicable, the Final DIP Order), and at all times thereafter:
(a) Pursuant 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 the Guarantors hereunder and under the Loan Documents and in respect of Indebtedness arising after the Filing Date owed to any Bank (or any of their respective Bank Affiliates) permitted by Section 6.03(vii): (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, having priority over all administrative expenses of the kinds kind specified in Sections 503(b) or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; and (bii) which shall at all times be senior pursuant to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) of the Bankruptcy Code, be subject and subordinate to the Carve-Out and shall be considered an administrative expense allowed under Section 503(b364(c)(2) of the Bankruptcy Code, shall at all times be against each Borrower secured by a perfected first priority Lien on a joint and several basis, and shall be payable from and have recourse to all property of the Debtors’ estates Borrower and the Guarantors (includinglimited, without limitationin the case of leasehold interests, all claims and causes of action arising under chapter 5 of the Bankruptcy Code and any to the proceeds received upon any sale, disposition or termination thereof). Notwithstanding anything ) that is not subject to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, perfected and non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(i) pursuant to Section 364(d)(1) as of the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the BorrowersFiling Date, including, without limitation, substantially all Inventory of the Borrower and the Guarantors (excluding the Borrower’s and the Guarantors’ rights in respect of avoidance actions under the Bankruptcy Code, it being understood that, notwithstanding such exclusion of avoidance actions, the proceeds of such actions shall be available to repay the Obligations), and on all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, maintained in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens Letter of Credit Account and any account holding adequate assurance deposits for the benefit direct investments of the Borrowers’ utility providers during the pendency of the Cases;
funds contained therein; (iiiii) 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 (limited, in the case of leasehold interests, to the proceeds received upon any sale, disposition or termination thereof) 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 and perfected Liens, subject 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 $5,000,000 (plus all unpaid professional fees and disbursements accrued or incurred prior to the occurrence of an Event of Default to the extent allowed by the Bankruptcy Court at any time) and (y) the payment of unpaid fees pursuant to 28 U.S.C. § 1930 and to the Clerk of the Bankruptcy Court (collectively, the “Carve-Out”), provided, that, no portion of the Carve-Out shall be utilized to fund litigation against the Agent or the Banks. The Banks 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 11 U.S.C. § 330 and 11 U.S.C. § 331, as the same may be due and payable, and the same shall not reduce the Carve-Out. Notwithstanding anything to the contrary set forth herein, but subject to the “provided” clause of this sentence during the period described in such clause, the claims and Liens referred to above in favor of the Banks (or their respective Bank Affiliates) in respect of the obligations of the Borrower permitted by Section 6.03(vii) arising after the Filing Date shall be (A) pari passu with the Superpriority Claims and Liens in respect of the other Obligations hereunder and under the other Loan Documents to the extent of $200,000,000 and (B) junior to the Superpriority Claims and Liens in respect of the other Obligations hereunder and under the other Loan Documents to the extent the obligations of the Borrower owed to Banks (or their respective Bank Affiliates) that are permitted by Section 6.03(vii) arising after the Filing Date exceed $200,000,000, provided that during the period ending upon the entry of the Final Order, Bank One and its banking Affiliates (or another cash management institution satisfactory to the Borrower and the BanksCo-Collateral Monitors) shall be entitled to the benefit of the pari passu claims and Liens to the extent of $190,000,000 and Banks (and their respective Bank Affiliates) shall be entitled to the benefit of the pari passu claims and Liens to the extent of $10,000,000, in each case as referred to in clause (A) of this sentence in respect of overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing house transfers of funds permitted by Section 6.03(vii), in each case to the extent arising after the Filing Date.
(b) Subject to the priorities set forth in subsection (a) above and to the Carve-Out, a valid perfected second priority lien on (A) as to all real property the Receivables Equity and (B) any collateral subject title to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved which is held by the Bankruptcy Court, a valid perfected first priority lien on any property Borrower or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of titleGuarantors, or the possession or control of which is held by any Agent the Borrower or any Secured Party ofof the Guarantors pursuant to leasehold interest, 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 (limited, in the case of leasehold interests, to the proceeds received upon any sale, disposition or overtermination thereof), together in each case with all of the right, title and interest of the Borrower and such Guarantor in and to all buildings, improvements, and fixtures related thereto, any Collaterallease or sublease thereof, as set forth all general intangibles relating thereto and all proceeds thereof. The Borrower and each Guarantor acknowledges that, pursuant to the Orders, the Liens in favor of the Agent on behalf of the Banks in all of such real property and leasehold instruments (limited, in the Interim DIP Ordercase 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 the Agent, the Borrower and such Guarantor shall enter into separate fee 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 (Kmart Corp)
Priority and Liens. Each (1) The Borrower and each of the Borrowers Guarantors hereby covenants covenants, represents and agrees that warrants that, upon the entry of an Interim DIP Order (and when applicablethe First Day Order, the Final DIP Order), Obligations of the Borrower and at all times thereafter:
the Guarantors hereunder and under the Loan Documents and in respect of Indebtedness permitted by Section 6.03 (avi): (i) Pursuant pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, having priority over all administrative expenses of the kinds kind specified in Sections 503(b) or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; and (bii) which shall at all times be senior pursuant to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A364(c)(2) of the Bankruptcy Code, shall at all times be subject secured by perfected first priority Liens on all unencumbered pre-petition and subordinate to post-petition property of the Carve-Out Borrower and the Guarantors (including, without limitation, all Accounts arising after the Filing Date, except as otherwise provided in subparagraph (iii) below or in the Orders, with any such Account on which the Agent and the Banks do not have a first priority perfected Lien being excluded from the Borrowing Base, but excluding bankruptcy causes of action, it being understood that, notwithstanding such exclusion, the proceeds of such causes of action shall be considered an administrative expense allowed under available for the repayment of the Obligations) and on all cash maintained in the Letter of Credit Account and any direct investments of the funds contained therein; (iii) pursuant to Section 503(b364(c)(3) of the Bankruptcy Code, shall be against each Borrower on a joint secured by perfected Liens upon all pre-petition and several basis, and shall be payable from and have recourse to all post-petition property of the Debtors’ estates Borrower and the Guarantors (including, without limitation, all claims and causes of action arising under chapter 5 Accounts in existence as of the Bankruptcy Code Filing Date that are subject to valid and any perfected Liens in favor of the Real Estate Financiers and the proceeds thereof). Notwithstanding anything , but not including property that is subject to existing Liens that presently secure the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit obligations of the Secured PartiesBorrower and the Guarantors under the Existing Agreements as to which the Liens in favor of the Agent and the Banks will be as described in clause (iv) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable of this sentence) that is subject to valid and perfected liens Liens in existence on all Collateralthe Filing Date or to Permitted Liens, junior to such valid and shall constitute, subject to clause perfected Liens; and (d) below:
(iiv) pursuant to Section 364(d)(1) of the Bankruptcy Code, a valid shall be secured by perfected first priority priority, senior priming lien on, other than the Receivables Equity, Liens on all of the existing pre-petition and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal post- petition property of the BorrowersBorrower and the Guarantors that is subject to (A) the existing Liens that secure the obligations of the Borrower and the Guarantors under and in connection with the Existing Agreements (subject to any Liens in existence on the Filing Date to which the Liens being primed hereby are subject or become subject) but excluding from such priming Liens (but not from the Liens described in clause (iii) of this sentence) the Liens of the Synthetic Agent to the extent of the Tranche B Loans and of FBTC Leasing Corp. to the extent of the Lessor Contributions and related obligations (under and as each such term is described in the Amended and Restated Credit Agreement that is referred to in the definition of the term "Synthetic Guarantee" herein) and (B) any Liens granted after the Filing Date to provide adequate protection in respect of the Existing Agreements; 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, includingthe payment of (1) accrued and unpaid professional fees and disbursements theretofore incurred or incurred after the cure or waiver of such Event of Default or event, without limitation, all cash and cash equivalents, all surface land, accounts receivable (2) professional fees and other receivables (other thandisbursements incurred during the time of such continuance in an aggregate amount not in excess of $2,500,000, in each casecase by the Borrower, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens Guarantors and any account holding adequate assurance deposits for statutory committee appointed in the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(ii) pursuant to Section 364(c)(3) Cases and allowed by an order of the Bankruptcy CodeCourt and (y) the payment of unpaid fees pursuant to 28 U.S.C. (S) 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, a valid perfected second priority lien on and provided, further, 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. (AS) 330 and 11 U.S.C. (S) 331, as the Receivables Equity same may be due and (B) any collateral subject to a Prior Permitted Lien (other than payable, and the A/R Securitization Facility Collateral); andsame shall not reduce the Carve-Out.
(iii2) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject Subject to the Carve-OutOut and Permitted Liens, upon entry of as to all real property the Final DIP Order and title to the extent approved which is held by the Bankruptcy Court, a valid perfected first priority lien on any property Borrower or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of titleGuarantors, or the possession or control of which is held by any Agent the Borrower or any Secured Party ofof the Guarantors pursuant to a leasehold interest, or overthe Borrower and each Guarantor hereby assigns and conveys as security, grants a security interest in, and (as applicable under relevant state law) conveys security title to, hypothecates, mortgages, pledges and sets over unto the Agent on behalf of the Banks (with the priorities described above) 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 such Guarantor in and to all buildings, improvements, and fixtures related thereto, any Collaterallease or sublease thereof, as set forth all general intangibles relating thereto and all proceeds thereof. The Borrower and each Guarantor acknowledges that, pursuant to the Orders, the Liens in favor of the Interim DIP OrderAgent on behalf of the Banks in all of such real property and leasehold instruments shall be perfected without the recordation of any mortgages, deeds of trust, deeds to secure debt or assignments. The Borrower and each Guarantor further agrees that, upon the request of the Agent, the Borrower and such Guarantor shall enter into separate fee and leasehold mortgages, deeds of trust, deeds to secure debt, collateral assignments or similar instruments 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 (Mariner Post Acute Network Inc)
Priority and Liens. Each of the Borrowers hereby covenants and agrees that upon the entry of an Interim DIP Order (and when applicable, the Final DIP Order), and at all times thereafter:
(a) Pursuant The Lender Group’s Liens shall, pursuant to Sections 364(c)(2) and 364(d)(1) of the Bankruptcy Code, be senior, priming Liens senior to all other Liens, administrative expenses, claims and interests of the kinds specified in, or ordered pursuant to, Section 105, 326, 330, 331, 361, 363, 364, 503(b), 506(c), 507(a), 507(b), 726 or any other provision of the Bankruptcy Code, other than the Senior Claims and the Carve-Out Expenses, all as more fully set forth in the Final Financing Order.
(b) All Obligations shall, pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an be allowed Superpriority Claim in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, administrative expenses of the Borrowers in the Chapter 11 Cases with super priority status senior to all other administrative expenses, claims and interests of the kinds specified in in, or ordered pursuant to Bankruptcy Code Sections to, Section 105, 326, 328, 330, 331, 363, 364, 503(a503(b), 503(b506(c), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and 726 or any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; and (b) which shall at all times be senior to the rights of the Borrowers and their estatesBorrowers, the Estates, the Committee, and any successor trustee or other estate Estate representative to in the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) of Chapter 11 Cases or any subsequent proceeding or case under the Bankruptcy Code, be subject and subordinate only to the Carve-Out and shall be considered an administrative expense allowed under Section 503(b) of the Bankruptcy Code, shall be against each Borrower on a joint and several basis, and shall be payable from and have recourse to all property of the Debtors’ estates (including, without limitationExpenses, all claims and causes of action arising under chapter 5 of as more fully set forth in the Bankruptcy Code and any the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority ClaimFinal Financing Order.
(c) The Lender Group’s Liens granted to and the Collateral Agent (for the benefit Lenders’ Post-Petition Super Priority shall also have priority over any claims or administrative expenses arising under Section 506(c) of the Secured Parties) securing Bankruptcy Code subject and subordinate only to, in the Obligations are continuingcase of the Lender Group’s Liens only, validthe Senior Claims and, bindingin the case of both the Lender Group’s Liens and the Lenders’ Post-Petition Super Priority, enforceable, nonthe Carve-avoidable Out Expenses. So long as no Carve-Out Event shall have occurred and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
be continuing (i) pursuant the Borrowers shall be permitted to Section 364(d)(1) pay administrative expenses allowed and payable under Sections 330 and 331 of the Bankruptcy Code, a valid perfected first priority priming lien on, other than as the Receivables Equity, all of the existing same may become due and after-acquired personal and real property, leasehold interests in real propertypayable, and tangible and intangible personal property of (ii) such payments shall not be applied to reduce the Borrowers, including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other thanCarve-Out Expenses, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(ii) pursuant to Section 364(c)(3) of the Bankruptcy Code, subject to the Carve-Out, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related instance without prejudice to any the right of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, Lender to object to the interim or over, final allowance of any Collateral, compensation or reimbursement of expenses. Except as set forth herein or in the Interim DIP Final Financing Order, no other administrative expense having a priority superior to or pari passu with that granted to the Lenders by the Final Financing Order shall be granted or approved while any Obligations under this Agreement remain outstanding.
Appears in 1 contract
Priority and Liens. Each All of the Borrowers hereby covenants and agrees that upon the entry of an Interim DIP Order (and when applicable, the Final DIP Order), and Obligations shall at all times thereafterfrom and after the Petition Date:
(a) Pursuant pursuant to Section 364(c)(1) of the Bankruptcy Code, all constitute allowed superpriority administrative expense claims against the Loan Parties in each of its Obligations shall at all times constitute an allowed Superpriority Claim in the Cases: Cases and any Successor Case, on a joint and several basis (a) except as set forth in without the Interim DIP Order (and when applicable, the Final DIP Orderneed to file any proof of claim), with priority in payment over any and all other administrative expense claims, secured claims, unsecured claims and unsecured all other claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-OutLoan Parties, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time now existing or hereafter arising, of any kind or nature whatsoeverwhatsoever (the “DIP Superpriority Claim”), including, without limitation, all administrative expenses of the kinds kind specified in or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 365, 503(a), 503(b), 506(c), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114or 1114 of the Bankruptcy Code, and any other provision of the Bankruptcy CodeCode or applicable non-bankruptcy law, as provided under Section 364(c)(1) of the Bankruptcy Code; and (b) which claims shall at all times be senior to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) of the Bankruptcy Code, be subject and subordinate to the Carve-Out and shall Code be considered an administrative expense expenses allowed under Section 503(b) of the Bankruptcy Code, shall be against each Borrower on a joint and several basis, and which DIP Superpriority Claims shall be payable from and have recourse to all pre- and postpetition property of the Debtors’ estates Loan Parties and all proceeds thereof, including all Collateral (including, without limitationfrom and after the Final Order Entry Date, subject to the approval of the Bankruptcy Court in the Final Order, all proceeds of claims and or causes of action arising under chapter 5 Sections 544, 545, 547, 548, 549, 550 and 553 of the Bankruptcy Code and any the proceeds thereof(collectively, “Avoidance Actions”). Notwithstanding anything ), subject only to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.Carve-Out;
(cb) The Liens granted pursuant to the Collateral Agent (for the benefit Section 364(c)(2) of the Secured Parties) securing the Obligations are continuingBankruptcy Code, be secured by a valid, bindingfully and automatically perfected, continuing, enforceable, non-avoidable first priority security interest and perfected liens Lien on all Collateralthe Collateral of each Loan Party, and shall constitute, to the extent such Collateral is not subject to clause (dx) below:
a valid, perfected and non-avoidable Lien in favor of a third party that was in existence on the Petition Date or (iy) pursuant a valid and non-avoidable Lien in favor of a third party that was in existence on the Petition Date and was perfected subsequent to the Petition Date solely to the extent permitted by Section 364(d)(1546(b) of the Bankruptcy Code, a valid perfected first priority priming lien on, other than Code (the Receivables Equity, all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateral“Permitted Prior Liens”), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject only to the Prior Senior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;Carve-Out; and
(iic) pursuant to Section 364(c)(3) of the Bankruptcy Code, be secured by a valid, fully and automatically perfected, continuing, enforceable, non-avoidable junior security interest and Lien on the Collateral of each Loan Party to the extent subject to Permitted Prior Liens, subject to (i) such Permitted Prior Liens, (ii) the Senior Permitted Liens and (iii) the Carve-Out, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP Order.
Appears in 1 contract
Sources: Senior Secured Debtor in Possession Credit Agreement (PACIFIC GAS & ELECTRIC Co)