Common use of Superpriority Claims and Liens Clause in Contracts

Superpriority Claims and Liens. Borrower hereby covenants, represents and warrants that, upon entry of the Order, the Obligations of Borrower under the Loan Documents: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority 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 tangible and intangible property of Borrower that is not subject to the Permitted Liens (other than Avoidance Actions and the proceeds therefrom); and (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a perfected Lien upon all tangible and intangible property of Borrower that is subject to Permitted Liens, junior to such Permitted Liens, and (iv) the Superpriority Claim and the Liens provided in clauses (i) through (iii) shall be subject only to the Permitted Liens and the Carve-Out (as defined below); provided, that, except as otherwise provided in the Order, 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 Borrower owing to the Lender, agents or indemnified parties under this Agreement. The Lender may deliver notice to the Borrower (and its counsel), and the UST that an Event of Default has occurred and is continuing and the Lender desires to trigger wind-down of the Carve-Out as provided herein (a “Carve-Out Trigger Notice”). “Carve-Out” means the (a) unpaid fees of the Clerk of the Bankruptcy Court and the UST pursuant to 28 U.S.C. § 1930(a), (b) unpaid and allowed Budgeted fees and expenses of professional persons, retained by the Borrower pursuant to Section 327 of the Bankruptcy Code with the approval of the Bankruptcy Court (collectively, the “Professionals”), in each case, incurred on and prior to delivery of a Carve-Out Trigger Notice and (c) unpaid and allowed fees and expenses of Professionals incurred subsequent to delivery of a Carve-Out Trigger Notice, in an aggregate amount not to exceed the budgeted amount for any such Professional (the “Professional Expense Cap”). For the avoidance of doubt, the Professional Expense Cap shall only apply after the delivery of a Carve-Out Trigger Notice. The Professional Expense Cap shall be reduced, dollar for dollar, by the amount of any fees, costs and expenses incurred and paid to Professionals subsequent to delivery of a Carve-Out Trigger Notice. The Lender agrees that 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 prior to the delivery of a Carve-Out Trigger Notice. The foregoing shall not be construed as consent to the allowance of any fees and expenses referred to above and shall not affect the right of the Lender to object to the allowance and payment of such amounts.

Superpriority Claims and Liens. Borrower Each Loan Party hereby covenants, represents and warrants that, upon entry of the Interim Order (and the Final Order, as applicable), the Obligations of Borrower the Loan Parties under the Loan Documents: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an joint and several allowed Superpriority Claimadministrative 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 (except for proceeds of claims and causes of action arising under sections 502(d), 544, 545, 547, 548, 549, 550, 551, 553(b), 723(a) or 724(a) of the Bankruptcy Code 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 tangible and intangible property of Borrower each Loan Party that is not subject to Existing Liens but excluding the Permitted Liens (other than Avoidance Actions and the proceeds therefrom); andActions; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a perfected Lien upon all tangible and intangible property of Borrower each Loan Party that is subject to Permitted Existing Liens (other than Primed Liens) and to post-petition Liens permitted hereunder that secure post-petition Capital Leases or purchase money financings permitted to be entered into hereunder, junior to such Permitted Liens, Existing Liens and the Liens granted in connection with such Capital Leases and purchase money financings; and (iv) pursuant to Section 364(d)(1) of the Superpriority Claim Bankruptcy Code, shall be secured by a perfected first priority, senior priming Lien on all of the tangible and intangible property of each Loan Party that secures any Loan Party’s Indebtedness and other obligations under the Prepetition Facility and any Liens to which such Liens are senior (but subject to any Existing Liens to which the Liens provided being primed hereby are subject or become subject subsequent to the Filing Date as permitted by Section 546(b) of the Bankruptcy Code), which senior Priming Liens shall have priority over any Liens granted on or after the Filing Date to provide adequate protection in respect of the Prepetition Facility; in the case of each of clauses (i) through (iiiiv) shall be above subject only to (x) on and after delivery of notice by the Permitted Liens Administrative Agent to the Company that an Event of Default has occurred and the Administrative Agent has delivered a notice to the Company to the effect that the application of Carve-Out has occurred (a “Carve-Out Trigger Notice”), the payment of (A) up to $1,000,000 in the aggregate of allowed and unpaid professional fees and disbursements incurred by Company and the Guarantors, and any statutory committees appointed in the Cases, on or after the date of such Event of Default plus (B) the amount of unpaid professional fees and expenses incurred by Company and Guarantors prior to the date of the delivery of the Carve-Out Trigger Notice and (as defined belowy) the payment of fees pursuant to 28 U.S.C. § 1930 ((x) and (y); provided, together, the “Carve-Out”), provided that, except as otherwise provided in the OrderOrders (including, without limitation, investigation rights), 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 Borrower Company and the Guarantors owing to the Lenderlenders, agents or indemnified parties under this Agreementthe Loan Documents or the Prepetition Facility or to the collateral securing the Obligations or the Prepetition Facility. The Lender may deliver notice to the Borrower (and its counsel), and the UST Lenders agree that an so long as no Event of Default has shall have occurred and is continuing be continuing, Company and the Lender desires to trigger wind-down of the Carve-Out as provided herein (a “Carve-Out Trigger Notice”). “Carve-Out” means the (a) unpaid fees of the Clerk of the Bankruptcy Court and the UST pursuant to 28 U.S.C. § 1930(a), (b) unpaid and allowed Budgeted fees and expenses of professional persons, retained by the Borrower pursuant to Section 327 of the Bankruptcy Code with the approval of the Bankruptcy Court (collectively, the “Professionals”), in each case, incurred on and prior to delivery of a Carve-Out Trigger Notice and (c) unpaid and allowed fees and expenses of Professionals incurred subsequent to delivery of a Carve-Out Trigger Notice, in an aggregate amount not to exceed the budgeted amount for any such Professional (the “Professional Expense Cap”). For the avoidance of doubt, the Professional Expense Cap shall only apply after the delivery of a Carve-Out Trigger Notice. The Professional Expense Cap shall be reduced, dollar for dollar, by the amount of any fees, costs and expenses incurred and paid to Professionals subsequent to delivery of a Carve-Out Trigger Notice. The Lender agrees that Borrower 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 prior to the delivery of a Carve-Out Trigger NoticeOut. The foregoing shall not be construed as a consent to the allowance of any fees and expenses referred to above and shall not affect the right of the Lender Administrative Agent and the Lenders to object to the allowance and payment of such amounts.

Superpriority Claims and Liens. Borrower hereby covenants, represents and warrants that, upon entry of the Final Order, the Obligations of Borrower and the Guarantors under the Loan Credit Documents: : (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an joint and several allowed Superpriority Claim; administrative expense claims in the Cases having priority over all administrative expenses of the kind specified in Sections 503(b), 507(a) or 507(b) of the Bankruptcy Code; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a perfected first priority Lien on all tangible and intangible property of Borrower and the Guarantors that is not subject to the Permitted Existing Liens or post-petition Liens permitted hereunder that secure (other than Avoidance Actions A) post-petition Capitalized Leases or purchase money financings permitted to be entered into hereunder or (B) obligations not to exceed $4 million, owing to JPMorgan Chase, N.A., in connection with procurement card obligations and the proceeds therefromcash management system of the Borrower and the Guarantor (collectively, “Cash Management Obligations”); and (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a perfected Lien upon all tangible and intangible property of Borrower and the Guarantors that is subject to Permitted LiensExisting Liens and to post-petition Liens permitted hereunder that secure post-petition Capitalized Leases or purchase money financings permitted to be entered into hereunder or Cash Management Obligations, junior to such Permitted LiensExisting Liens and the Liens granted in connection with such Cash Management Obligations, and Capitalized Leases and purchase money financings; and (iv) pursuant to Section 364(d)(1) of the Superpriority Claim Bankruptcy Code, shall be secured by a perfected first priority, senior priming Lien on all of the tangible and intangible property of Borrower and the Guarantors that is subject to existing Liens provided that secure Borrower’s and the Guarantors’ Debt and other obligations under the Prepetition Facility and any Liens that are junior thereto (but subject to any Existing Liens 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), including any Liens granted on or after the Filing Date to provide adequate protection in respect of the Prepetition Facility (provided, that notwithstanding anything to the contrary in clauses (a)(ii) to (a)(iv) herein, in no event shall the Obligations be secured by any pledge in excess of 65% of the capital stock of its direct foreign subsidiaries or any of the capital stock or interests of indirect foreign subsidiaries (if adverse tax consequences could result to the Borrower or the Guarantors) or joint ventures interest (if otherwise prohibited or requiring the consent of any third party)); in the case of each of clauses (i) through (iiiiv) shall be subject only to (x) on and after delivery of notice by the Permitted Liens applicable Agent to the Borrower that an Event of Default has occurred and the Lenders desire to trigger the Carve-Out (as defined belowa “Carve-Out Trigger Notice”); provided, the payment of allowed and unpaid professional fees and disbursements incurred by Borrower and the Guarantors, any statutory committees appointed in the Cases, and the adhoc noteholders’ committee, on or after the date of delivery of the Carve-Out Trigger Notice in an aggregate amount not in excess of $5,000,000 plus the amount of unpaid professional fees and expenses incurred by Borrower and Guarantors prior to the date of delivery of the Carve-Out Trigger Notice and (y) the payment of fees pursuant to 28 U.S.C. § 1930 ((x) and (y), together, the “Carve-Out”), provided that, except as otherwise provided in the Final Order, 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 Borrower and the Guarantors owing to the Lenderlenders, agents or indemnified parties under this Agreementthe Facility or to the collateral securing the Facility. The Lender may deliver notice to the Borrower (and its counsel), and the UST Lenders agree that an so long as no Event of Default has shall have occurred and is continuing be continuing, Borrower and the Lender desires to trigger wind-down of the Carve-Out as provided herein (a “Carve-Out Trigger Notice”). “Carve-Out” means the (a) unpaid fees of the Clerk of the Bankruptcy Court and the UST pursuant to 28 U.S.C. § 1930(a), (b) unpaid and allowed Budgeted fees and expenses of professional persons, retained by the Borrower pursuant to Section 327 of the Bankruptcy Code with the approval of the Bankruptcy Court (collectively, the “Professionals”), in each case, incurred on and prior to delivery of a Carve-Out Trigger Notice and (c) unpaid and allowed fees and expenses of Professionals incurred subsequent to delivery of a Carve-Out Trigger Notice, in an aggregate amount not to exceed the budgeted amount for any such Professional (the “Professional Expense Cap”). For the avoidance of doubt, the Professional Expense Cap shall only apply after the delivery of a Carve-Out Trigger Notice. The Professional Expense Cap shall be reduced, dollar for dollar, by the amount of any fees, costs and expenses incurred and paid to Professionals subsequent to delivery of a Carve-Out Trigger Notice. The Lender agrees that Borrower 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 prior to the delivery of a Carve-Out Trigger NoticeOut. The foregoing shall not be construed as a consent to the allowance of any fees and expenses referred to above and shall not affect the right of the Lender Agents and the Lenders to object to the allowance and payment of such amounts.

Superpriority Claims and Liens. Borrower Each Grantor hereby covenants, represents and warrants that, upon entry of the Final Order, the Obligations of Borrower the Grantors under the Loan Credit Documents: : (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an joint and several allowed Superpriority Claim; administrative expense claims in the Cases having priority over all administrative expenses of the kind specified in Sections 503(b), 507(a) or 507(b) of the Bankruptcy Code; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a perfected first priority Lien on all tangible and intangible property of Borrower the Grantors that is not subject to Existing Liens or post-petition Liens permitted hereunder that secure (A) post-petition Capitalized Leases or purchase money financings permitted to be entered into under the Permitted Liens Credit Agreement or (other than Avoidance Actions B) obligations not to exceed $4 million, owing to JPMorgan Chase, N.A., in connection with procurement card obligations and the proceeds therefromcash management system of the Grantors (collectively, “Cash Management Obligations”); and (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a perfected Lien upon all tangible and intangible property of Borrower the Grantors that is subject to Permitted LiensExisting Liens and to post-petition Liens permitted hereunder that secure post-petition Capitalized Leases or purchase money financings permitted to be entered into hereunder or Cash Management Obligations, junior to such Permitted LiensExisting Liens and the Liens granted in connection with such Cash Management Obligations, and Capitalized Leases and purchase money financings; and (iv) pursuant to Section 364(d)(1) of the Superpriority Claim Bankruptcy Code, shall be secured by a perfected first priority, senior priming Lien on all of the tangible and intangible property of Grantors that is subject to existing Liens that secure the Grantors’ Debt and other obligations under the Prepetition Facility and any Liens that are junior thereto (but subject to any Existing Liens to which the Liens provided being primed hereby are subject or become subject subsequent to the Filing Date as permitted by Section 546(b) of the Bankruptcy Code), including any Liens granted on or after the Filing Date to provide adequate protection in respect of the Prepetition Facility (provided, that notwithstanding anything to the contrary in clauses (a)(ii) to (a)(iv) herein, in no event shall the Obligations be secured by any pledge in excess of 65% of the capital stock of its direct foreign subsidiaries or any of the capital stock or interests of indirect foreign subsidiaries (if adverse tax consequences could result to the Grantors) or joint ventures interest (if otherwise prohibited or requiring the consent of any third party)); in the case of each of clauses (i) through (iiiiv) shall be subject only to (x) on and after delivery of notice by the Permitted Liens applicable Agent to the Borrower that an Event of Default has occurred and the Lenders desire to trigger the Carve-Out (as defined belowa “Carve-Out Trigger Notice”); provided, the payment of allowed and unpaid professional fees and disbursements incurred by the Grantors, any statutory committees appointed in the Cases, and the adhoc noteholders’ committee, on or after the date of delivery of the Carve-Out Trigger Notice in an aggregate amount not in excess of $5,000,000 plus the amount of unpaid professional fees and expenses incurred by the Grantors prior to the date of delivery of the Carve-Out Trigger Notice and (y) the payment of fees pursuant to 28 U.S.C. § 1930 ((x) and (y), together, the “Carve-Out”), provided that, except as otherwise provided in the Final Order, no portion of the Carve-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 Borrower the Grantors owing to the Lenderlenders, agents or indemnified parties under this Agreementthe Facility or to the collateral securing the Facility. The Lender may deliver notice to the Borrower (and its counsel), and the UST Lenders agree that an so long as no Event of Default has shall have occurred and is continuing and the Lender desires to trigger wind-down of the Carve-Out as provided herein (a “Carve-Out Trigger Notice”). “Carve-Out” means the (a) unpaid fees of the Clerk of the Bankruptcy Court and the UST pursuant to 28 U.S.C. § 1930(a), (b) unpaid and allowed Budgeted fees and expenses of professional persons, retained by the Borrower pursuant to Section 327 of the Bankruptcy Code with the approval of the Bankruptcy Court (collectivelybe continuing, the “Professionals”), in each case, incurred on and prior to delivery of a Carve-Out Trigger Notice and (c) unpaid and allowed fees and expenses of Professionals incurred subsequent to delivery of a Carve-Out Trigger Notice, in an aggregate amount not to exceed the budgeted amount for any such Professional (the “Professional Expense Cap”). For the avoidance of doubt, the Professional Expense Cap shall only apply after the delivery of a Carve-Out Trigger Notice. The Professional Expense Cap shall be reduced, dollar for dollar, by the amount of any fees, costs and expenses incurred and paid to Professionals subsequent to delivery of a Carve-Out Trigger Notice. The Lender agrees that Borrower Grantors 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 prior to the delivery of a Carve-Out Trigger NoticeOut. The foregoing shall not be construed as a consent to the allowance of any fees and expenses referred to above and shall not affect the right of the Lender Agents and the Lenders to object to the allowance and payment of such amounts.