Priority and Liens; No Discharge. (a) Each of the Credit Parties hereby covenants and agrees that upon the entry of, and subject to the terms of, the Interim DIP Order (and when entered, the Final DIP Order) (including and without prejudice to, without limitation, in each case, any rights or liens or perfected security interests (and the priorities thereof) granted under the Interim DIP Order or Final DIP Order under any other provision of 364 of the Bankruptcy Code or any other applicable provisions of the of the Bankruptcy Code) and subject to the Carve Out in all respects, the Obligations: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute allowed DIP Superpriority Claims in the Cases; and (ii) pursuant to Section 364(c)(2), (c)(3) and (d) of the Bankruptcy Code, shall be secured by a valid, binding, enforceable, non-avoidable, and automatically perfected senior priority Lien upon the Collateral. (b) The relative priorities of the Liens described in this Section 2.29 with respect to the Collateral shall be as set forth in the Interim DIP Order (and, when entered, the Final DIP Order). In accordance with the Interim DIP Order (or, once entered, the Final DIP Order), all of the Liens described in this Section 2.29 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 security agreements, intellectual property security agreements, mortgages, control agreements, pledge agreements, financing statements or other similar documents, or the possession or control by the Administrative Agent, of, or over, any Collateral, as set forth in the Interim DIP Order (and, when entered, the Final DIP Order). (c) Each Credit Party that is a Debtor hereby confirms and acknowledges that, pursuant to the Interim DIP Order (and, when entered, the Final DIP Order), the Liens in favor of the Administrative Agent on behalf of and for the benefit of the Secured Parties in all of the Collateral, now existing or hereafter acquired, shall be created and perfected without the recordation or filing in any land records or filing offices of any mortgage, assignment or similar instrument. (d) Notwithstanding the provisions of section 362 of the Bankruptcy Code, and subject to the applicable provisions of the Interim DIP Order (and, when entered, the Final DIP Order), upon the occurrence of the Maturity Date (whether by acceleration or otherwise), the Agents and the Lenders shall be entitled to immediate payment in full in cash of the Obligations and to enforce the remedies provided for hereunder or under applicable requirements of law.
Appears in 2 contracts
Samples: Term Credit and Guaranty Agreement (QualTek Services Inc.), Restructuring Support Agreement (QualTek Services Inc.)
Priority and Liens; No Discharge. (a) Each of the Credit Loan Parties hereby covenants covenants, represents, warrants and agrees that upon the execution on this Agreement and entry of, and subject to the terms of, of the Interim DIP Order (and when enteredapplicable, the Final DIP Order) (including ), the obligations hereunder and without prejudice to, without limitation, in each case, any rights or liens or perfected security interests (and the priorities thereof) granted under the Interim DIP Order or Final DIP Order under any other provision of 364 of the Bankruptcy Code or any other applicable provisions of the of the Bankruptcy Code) and Loan Documents shall, subject to the Carve Out in Out, at all respects, the Obligations: times:
(i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute allowed DIP Superpriority Claims be entitled to joint and several superpriority administrative expense claim status in the Cases; , with priority over any and all claims against the Loan Parties (the “Superpriority Claims”);
(ii) pursuant to Section 364(c)(2), (c)(3) and (d) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable, fully-perfected first priority Lien on all Collateral not subject to valid, perfected and non-avoidableavoidable Liens;
(iii) pursuant to section 364(d)(1) of the Bankruptcy Code, be secured by a valid, binding, continuing, enforceable, fully-perfected superpriority first priority priming security interest in and automatically Lien on all Collateral of the same nature, scope and type as the collateral purportedly securing Prepetition Secured Debt (such collateral, the “Prepetition Collateral”). Such security interests and Liens shall be senior in all respects to the security interests and Liens of the secured parties under the Prepetition Credit Agreement, the Prepetition First Lien Notes, the Prepetition Midwest Notes and the Prepetition Second Lien Notes, in each case arising from their respective current and future Liens. Any Liens that are being primed pursuant to this clause (iii) are referred to as the “Primed Liens”; and
(iv) pursuant to Section 364(c)(3) of the Bankruptcy Code, be secured by a valid, binding, continuing, enforceable, fully-perfected senior priority junior Lien upon on all Collateral that is subject to (a) valid, perfected and non-avoidable Liens in existence at the Collateral.
time of the commencement of the Cases (other than the Primed Liens) or (b) The relative priorities valid and non-avoidable Liens (other than Primed Liens) in existence at the time of the Liens described in this Section 2.29 with respect to the Collateral shall be as set forth in the Interim DIP Order (and, when entered, the Final DIP Order). In accordance with the Interim DIP Order (or, once entered, the Final DIP Order), all commencement of the Liens described in this Section 2.29 shall be effective and Cases that are perfected upon entry subsequent to such commencement as permitted by section 546(b) of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of security agreements, intellectual property security agreements, mortgages, control agreements, pledge agreements, financing statements or other similar documents, or the possession or control by the Administrative Agent, of, or over, any Collateral, as set forth in the Interim DIP Order (and, when entered, the Final DIP Order).Bankruptcy Code;
(ci) Each Credit Loan Party that is a Debtor hereby confirms and acknowledges that, pursuant to the Interim DIP Order (and, when entered, the Final DIP Order), the Liens in favor of the Administrative Collateral Agent on behalf of and for the benefit of the Secured Parties in all of the CollateralDebtors’ Prepetition Collateral and Unencumbered Property (as defined in the Interim Order), which includes, without limitation, all of such Debtor’s Real Estate, now existing or hereafter acquired, shall be created and perfected without the recordation or filing in any land records or filing offices of any mortgageMortgage, assignment or similar instrument.
(dii) Notwithstanding the provisions of section 362 of the Bankruptcy Code, Further to Section 2.19(b)(i) and subject to the applicable provisions of the Interim DIP Order (and, when entered, the Final DIP Order), upon subject to Section 2.19(b)(v) below, to secure the occurrence full and timely payment and performance of the Maturity Date Secured Obligations, each Loan Party that is a Debtor hereby MORTGAGES, GRANTS, BARGAINS, ASSIGNS, SELLS, CONVEYS and CONFIRMS, to the Collateral Agent, for the ratable benefit of the Secured Parties, all or any Real Estate (which, for the avoidance of doubt, shall include all of such Debtor’s right, title and interest now or hereafter acquired in and to (a) all improvements now owned or hereafter acquired by such Debtor, (b) all materials, supplies, equipment, apparatus and other items of personal property now owned or hereafter acquired by such Debtor and now or hereafter attached to, installed in or used in connection with the Real Estate, and all utilities whether or not situated in easements, and all equipment, inventory and other goods in which such Debtor now has or hereafter acquires any rights or any power to transfer rights and that are or are to become fixtures (as defined in the UCC) related to the Real Estate, (c) all goods, accounts, inventory, general intangibles, instruments, documents, contract rights and chattel paper, (d) all reserves, escrows or impounds and all deposit accounts maintained by acceleration such Debtor with respect to the Real Estate, (e) all leases, licenses, concessions, occupancy agreements or otherwiseother agreements (written or oral, now or at any time in effect) which grant to any Person a possessory interest in, or the right to use, all or any part of the Real Estate, together with all related security and other deposits, (f) all of the rents, revenues, royalties, income, proceeds, profits, accounts receivable, security and other types of deposits, and other benefits paid or payable by parties to the leases for using, leasing, licensing possessing, operating from, residing in, selling or otherwise enjoying the Real Estate, (g) all other agreements, such as construction contracts, architects’ agreements, engineers’ contracts, utility contracts, maintenance agreements, management agreements, service contracts, listing agreements, guaranties, warranties, permits, licenses, certificates and entitlements in any way relating to the construction, use, occupancy, operation, maintenance, enjoyment or ownership of the Real Estate, (h) all rights, privileges, tenements, hereditaments, rights-of-way, easements, appendages and appurtenances appertaining to the foregoing, (i) all property tax refunds payable with respect to the Real Estate, (j) all accessions, replacements and substitutions for any of the foregoing and all proceeds thereof, (k) all insurance policies, unearned premiums therefor and proceeds from such policies covering any of the above property now or hereafter acquired by such Debtor as an insured party, and (l) all awards, damages, remunerations, reimbursements, settlements or compensation heretofore made or hereafter to be made to any Debtor by any governmental authority pertaining to any condemnation or other taking (or any purchase in lieu thereof), TO HAVE AND TO HOLD to the Collateral Agent, and such Debtor does hereby bind itself, its successors and assigns to WARRANT AND FOREVER DEFEND the title to such property, assets and interests unto the Agents).
(iii) [RESERVED].
(iv) All of the Liens described in this Section 2.19 (x) shall be effective and perfected upon entry of the Interim Order, as applicable, without the necessity of the execution, recordation of filings by any Debtor of mortgages, security agreements, control agreements, pledge agreements, financing statements or other similar documents, or the possession or control by the Collateral Agent of, or over, any Collateral, as set forth in the Orders and (y) for the avoidance of doubt, shall in no way limit the Liens and security interests granted by any Loan Party pursuant to the Orders or the Security Documents.
(v) [RESERVED].
(vi) Notwithstanding anything to the contrary herein, except as set forth in the Orders, in no event shall the Collateral of the Debtors include (A) if and to the extent invoked pursuant to the Orders, proceeds in an amount equal to the Carve Out (provided that Collateral shall include residual interest in the Carve Out), (B) any other property specifically excluded pursuant to the Orders, (C) any “building” or “mobile home” (each as defined in Regulation H as promulgated by the Federal Reserve Board under the Flood Insurance Laws) having a Fair Market Value (as reasonably determined by a Financial Officer in good faith) not exceeding $10,000,000, presently or hereafter located on any land comprising part of any Real Estate and (D) any “building” or “mobile home” (each as defined in Regulation H as promulgated by the Federal Reserve Board under the Flood Insurance Laws) having a Fair Market Value (as reasonably determined by a Financial Officer in good faith) in excess of $10,000,000, presently or hereafter located on any land comprising part of any Real Estate located in the United States until the Administrative Agent has received the Flood Documentation in form and substance reasonably satisfactory to the Administrative Agent.
(vii) Each of the Loan Parties agrees that (i) its obligations under the Loan Documents shall not be discharged by the entry of an order confirming a Reorganization Plan (and each of the Loan Parties, pursuant to Section 1141(d)(4) of the Bankruptcy Code, hereby irrevocably waives any such discharge) and (ii) the Superpriority Claim granted to the Administrative Agent and the Lenders pursuant to the Orders and the Liens granted to the Agents and the Lenders pursuant to the Orders shall not be entitled to immediate payment affected in full in cash any manner by the entry of the Obligations and to enforce the remedies provided for hereunder or under applicable requirements of lawan order confirming a Reorganization Plan.
Appears in 1 contract
Samples: Superpriority Secured Debtor in Possession Credit Agreement (Windstream Services, LLC)
Priority and Liens; No Discharge. (a) Each of the Credit Loan Parties that is a Debtor hereby covenants covenants, represents, warrants and agrees that upon the execution of this Agreement and entry of, and subject to of the terms ofDIP Order, the Interim DIP Order (obligations hereunder and when entered, the Final DIP Order) (including and without prejudice to, without limitation, in each case, any rights or liens or perfected security interests (and the priorities thereof) granted under the Interim DIP Order or Final DIP Order under any other provision of 364 of the Bankruptcy Code or any other applicable provisions of the of the Bankruptcy Code) and Loan Documents shall, subject to the Carve Out in Out, at all respects, the Obligations: times:
(i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute allowed DIP Superpriority Claims be entitled to joint and several superpriority administrative expense claim status in the Cases; Cases with priority over any and all claims against the Loan Parties other than any superpriority administrative expense claims which are pari passu (the “Superpriority Claims”);
(ii) pursuant to Section 364(c)(2), (c)(3) and (d) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable, fully-perfected first priority Lien on all Collateral of the Debtors not subject to valid, perfected and non-avoidableavoidable Liens, excluding claims and automatically perfected senior priority Lien causes of action under sections 502(d), 544, 545, 547, 548, 549, 550 and 553 of the Bankruptcy Code (collectively, “Avoidance Actions”), but, including the DIP Loan Proceeds Disbursement Account (and amounts held therein) and, subject to and effective upon entry of the CollateralDIP Order, any proceeds of Avoidance Actions.
(biii) The relative priorities pursuant to section 364(d)(1) of the Bankruptcy Code, be secured by a valid, binding, continuing, enforceable, fully-perfected first priority senior priming security interest in and Lien on all Collateral of the Debtors of the same nature, scope and type as the collateral of the Debtors purportedly securing amounts outstanding under the Prepetition Credit Agreement or the Prepetition Senior Secured Notes (such collateral, the “Prepetition Collateral”). Such security interests and Liens described shall be senior in all respects to the security interests and Liens (other than Liens on the Junior Priority Collateral securing the Prepetition Credit Agreement) of the secured parties under the Prepetition Credit Agreement or the Prepetition Senior Secured Notes, as applicable, in each case arising from their respective current and future Liens. Any Liens that are being primed pursuant to this clause (iii) are referred to as the “Primed Liens”; and
(iv) pursuant to Section 2.29 364(c)(3) of the Bankruptcy Code, be secured by a valid, binding, continuing, enforceable, fully-perfected junior Lien on all Collateral (but not property subject to the existing security interests of the BULL Lombard Credit Facility Secured Parties) that is subject to (a) valid, perfected and non-avoidable Liens in existence at the time of the commencement of the Cases including Liens with respect to the Existing Financings (other than (A) the Primed Liens, (B) Liens with respect to the BULL Lombard Collateral, (C) the Section 1110 Excluded Collateral, or (D) the PK Collateral shall be solely to the extent that the PK Credit Agreement and applicable law would permit the PK Credit Facility Secured Parties to exercise remedies as set forth in the Interim DIP Order (a result of such grant and, when enteredin each of the foregoing sub-sections (C) and (D), the Final DIP Order). In unless such Liens are otherwise permitted in accordance with the Interim DIP Order (or, once entered, the Final DIP Order), all ) or (b) valid Liens (other than Primed Liens) in existence at the time of the Liens described in this Section 2.29 shall be effective and perfected upon entry commencement of the Interim DIP Order, without the necessity Cases that are perfected subsequent to such commencement as permitted by section 546(b) of the execution, recordation of filings by the Debtors of security agreements, intellectual property security agreements, mortgages, control agreements, pledge agreements, financing statements or other similar documents, or the possession or control by the Administrative Agent, of, or over, any Collateral, as set forth in the Interim DIP Order (and, when entered, the Final DIP Order).Bankruptcy Code;
(ci) Each Credit Loan Party that is a Debtor hereby confirms and acknowledges that, pursuant to the Interim DIP Order (and, when entered, the Final DIP Order), the Liens in favor of the Administrative Agent on behalf of and for the benefit of the Secured Parties in all of the Debtors’ Collateral, which includes, without limitation, all of such Debtor’s Real Estate, now existing or hereafter acquired, shall be created and perfected without the recordation or filing in any land records or filing offices of any mortgage, assignment or similar instrument; provided, the foregoing shall not apply with respect to matters not governed by Requirements of Law of the United States.
(ii) Further to Section 2.22(b)(i) and the DIP Order, subject to Section 2.22(b)(v) below, to secure the full and timely payment and performance of the Secured Obligations, each Loan Party that is a Debtor hereby MORTGAGES, GRANTS, BARGAINS, ASSIGNS, SELLS, CONVEYS and CONFIRMS, to the Administrative Agent, for the ratable benefit of the Secured Parties, all or any Real Estate (which, for the avoidance of doubt, shall include all of such Debtor’s right, title and interest now or hereafter acquired in and to (a) all improvements now owned or hereafter acquired by such Debtor, (b) all materials, supplies, equipment, apparatus and other items of personal property now owned or hereafter acquired by such Debtor and now or hereafter attached to, installed in or used in connection with the Real Estate, and all utilities whether or not situated in easements, and all equipment, inventory and other goods in which such Debtor now has or hereafter acquires any rights or any power to transfer rights and that are or are to become fixtures (as defined in the UCC) related to the Real Estate, (c) all goods, accounts, inventory, general intangibles, instruments, documents, contract rights and chattel paper, (d) all reserves, escrows or impounds and all deposit accounts maintained by such Debtor with respect to the Real Estate, (e) all leases, licenses, concessions, occupancy agreements or other agreements (written or oral, now or at any time in effect) which grant to any Person a possessory interest in, or the right to use, all or any part of the Real Estate, together with all related security and other deposits, (f) all of the rents, revenues, royalties, income, proceeds, profits, accounts receivable, security and other types of deposits, and other benefits paid or payable by parties to the leases for using, leasing, licensing possessing, operating from, residing in, selling or otherwise enjoying the Real Estate, (g) all other agreements, such as construction contracts, architects’ agreements, engineers’ contracts, utility contracts, maintenance agreements, management agreements, service contracts, listing agreements, guaranties, warranties, permits, licenses, certificates and entitlements in any way relating to the construction, use, occupancy, operation, maintenance, enjoyment or ownership of the Real Estate, (h) all rights, privileges, tenements, hereditaments, rights-of-way, easements, appendages and appurtenances appertaining to the foregoing, (i) all property Tax refunds payable with respect to the Real Estate, (j) all accessions, replacements and substitutions for any of the foregoing and all proceeds thereof, (k) all insurance policies, unearned premiums therefor and proceeds from such policies covering any of the above property now or hereafter acquired by such Debtor as an insured party, and (l) all awards, damages, remunerations, reimbursements, settlements or compensation heretofore made or hereafter to be made to any Debtor by any governmental authority pertaining to any condemnation or other taking (or any purchase in lieu thereof), TO HAVE AND TO HOLD to the Administrative Agent, and such Debtor does hereby bind itself, its successors and assigns to WARRANT AND FOREVER DEFEND the title to such property, assets and interests unto the Administrative Agent.)
(iii) With the exception of any security interests arising under the Cayman Security Documents in respect of non-U.S. situs assets, each of the Loan Parties that is a Debtor acknowledges and agrees that all of the Liens described in this Section 2.22 (x) granted by such Loan Parties shall be effective and perfected upon entry of the DIP Order, as applicable, without the necessity of the execution, recordation of filings by any Debtor of mortgages, security agreements, control agreements, pledge agreements, financing statements or other similar documents, or the possession or control by the Administrative Agent of, or over, any Collateral, as set forth in the DIP Order and (y) for the avoidance of doubt, shall in no way limit the Liens and security interests granted by any Loan Party pursuant to the Security Documents and the DIP Order; provided, however, notwithstanding anything to the contrary contained herein but subject to Section 5.11(e) hereof, the Administrative Agent (at the direction of the Majority Lenders) may elect to take any further (or cause the Loan Parties to take any further) reasonable actions to grant, attach or perfect any Lien securing the Obligations as it may elect.
(iv) Notwithstanding anything to the provisions contrary herein, except as set forth in the DIP Order, in no event shall the Collateral of section 362 the Debtors include (A) if and to the extent invoked pursuant to the DIP Order, proceeds in an amount equal to the Carve Out (provided that Collateral shall include residual interest in the Carve Out), (B) any other property specifically excluded pursuant to the DIP Order, and (C) any “building” or “mobile home” (each as defined in Regulation H as promulgated by the Federal Reserve Board under the Flood Insurance Laws) presently or hereafter located on any land comprising part of any Real Estate located in the United States until the Administrative Agent has received the Flood Documentation in form and substance reasonably satisfactory to the Administrative Agent.
(v) Each of the Loan Parties agrees that (i) its obligations under the Loan Documents shall not be discharged by the entry of an order confirming a Reorganization Plan (and each of the Loan Parties, pursuant to Section 1141(d)(4) of the Bankruptcy Code, hereby irrevocably waives any such discharge) and subject (ii) the Superpriority Claim granted to the applicable provisions Administrative Agent and the Lenders pursuant to the DIP Order and the Liens granted to the Administrative Agent and the Lenders pursuant to the DIP Order shall not be affected in any manner by the entry of an order confirming a Reorganization Plan. For the avoidance of doubt, each of the Interim DIP Order (and, when entered, Loan Parties and the Final DIP Order), Lenders agree that upon the occurrence of a Termination Event (as defined in the Maturity Date (whether by acceleration DIP Order) the consents set forth in paragraph E(iv) thereof and all other consents, deemed or otherwise), granted by the Agents and Prepetition Consenting Secured Parties (as defined in the Lenders DIP Order) under the DIP Order shall be entitled to immediate payment in full in cash of the Obligations deemed withdrawn and to enforce the remedies provided for hereunder or under applicable requirements of lawsuch consents shall be treated as null and void ab initio.
Appears in 1 contract
Samples: Superpriority Secured Debtor in Possession Credit Agreement (Bristow Group Inc)
Priority and Liens; No Discharge. (a) a. Each of the Credit Loan Parties hereby covenants and agrees that upon the entry of, and subject to the terms of, the Interim DIP Order (and when enteredapplicable, the Final DIP Order) (including and without prejudice to, without limitation, in each case, any rights or liens or perfected security interests (and the priorities thereof) granted under the Interim DIP Order or Final DIP Order under any other provision of 364 of the Bankruptcy Code or any other applicable provisions of the of the Bankruptcy Code) and subject to the Carve Carve-Out in all respects, the Obligations: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute allowed DIP Superpriority Claims in the Cases; and (ii) pursuant to Section 364(c)(2), (c)(3) and (d) of the Bankruptcy Code, shall be secured by a valid, binding, enforceable, non-avoidable, and automatically perfected senior priority Lien upon the Collateral.
(b) b. The relative priorities of the Liens described in this Section 2.29 2.20 with respect to the Collateral shall be as set forth in the Interim DIP Order (and, when entered, the Final DIP Order). In accordance with the Interim DIP Order (or, once entered, the Final DIP Order), all of the Liens described in this Section 2.29 2.20 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 security agreements, intellectual property security agreements, mortgages, control agreements, pledge agreements, financing statements or other similar documents, or the possession or control by the Administrative Agent, of, or over, any Collateral, as set forth in the Interim DIP Order (and, when entered, the Final DIP Order).
(c) c. Each Credit Loan Party that is a Debtor hereby confirms and acknowledges that, pursuant to the Interim DIP Order (and, when entered, the Final DIP Order), the Liens in favor of the Administrative Agent on behalf of and for the benefit of the Secured Parties in all of the Collateral, now existing or hereafter acquired, shall be created and perfected without the recordation or filing (x) in any land records or filing offices of any mortgage, assignment or similar instrumentinstrument or (y) in any trademark, patent or copyright office of any security agreement or similar instrument or notice thereof.
(d) d. Notwithstanding the provisions of section 362 of the Bankruptcy Code, and subject to the applicable provisions of the Interim DIP Order (and, when enteredapplicable, the Final DIP Order), upon the occurrence of the Maturity Date (whether by acceleration or otherwise), the Agents and the Lenders shall be entitled to immediate payment in full in cash of the Obligations and to enforce the remedies provided for hereunder or under applicable requirements Requirements of lawLaw. Section 2.21 [Reserved].
Appears in 1 contract
Priority and Liens; No Discharge. (a) Each of the Credit Loan Parties that is a Debtor hereby covenants and agrees that upon the entry of, and subject to the terms of, the of an Interim DIP Order (and when entered, the Final DIP Order) (including its obligations hereunder and without prejudice tounder the Loan Documents shall, without limitationsubject, solely to the extent set forth in each case, any rights or liens or perfected security interests the Interim Order (and when entered, the priorities thereof) granted under the Interim DIP Order or Final DIP Order under any other provision of 364 of the Bankruptcy Code or any other applicable provisions of the of the Bankruptcy Code) and subject Order), to the Carve Out in all respectsOut, and the Obligations: (i) pursuant to Section 364(c)(1) of the Bankruptcy CodePermitted Priority Liens, shall at all times constitute allowed DIP Superpriority Claims in the Cases; and (ii) times, pursuant to Section 364(c)(2), (c)(3) and (d) of the Bankruptcy Code, shall be secured by a validperfected Lien on and security interest in all of the Collateral of the Debtors, bindingwhether consisting of personal, enforceabletangible or intangible property, non-avoidablewhether now owned or hereafter acquired, and automatically perfected senior priority Lien upon excepting Excluded Assets, unless such Collateral has been released in accordance with Section 9.14 in connection with transactions permitted under the CollateralLoan Documents.
(b) The relative priorities of the Liens described in this Section 2.29 with respect to the Collateral of the Debtors shall be as set forth in the Interim DIP Order (and, when entered, the Final DIP Order). In accordance with .
(c) Each Loan Party that is a Debtor hereby confirms and acknowledges that, pursuant to the Interim DIP Order (orand, once when entered, the Final DIP Order), the Liens in favor of the Collateral Agent on behalf of and for the benefit of the Secured Parties in all of the Liens Collateral of such Loan Party (including, without limitation, (x) all of the outstanding shares of capital stock of subsidiaries and (y) any property and rights of such Loan Parties described in this Section 2.29 the Orders and/or the Secured Documents) shall be effective created and perfected upon entry of perfected, to the Interim DIP Ordermaximum extent permitted by law, without the necessity of execution or the executionrecordation or filing in any land records or filing offices, recordation of filings by the Debtors of security agreementsassignment, intellectual property security agreements, mortgages, control agreements, pledge agreements, financing statements or other similar documents, or the possession or control by the Administrative Agent, Collateral Agent of, or over, any such Collateral, as set forth in the Interim DIP Order (and, when entered, the Final DIP Order).
(c) Each Credit Party that is a Debtor hereby confirms and acknowledges that, pursuant to the Interim DIP Order (and, when entered, the Final DIP Order), the Liens in favor of the Administrative Agent on behalf of and for the benefit of the Secured Parties in all of the Collateral, now existing or hereafter acquired, shall be created and perfected without the recordation or filing in any land records or filing offices of any mortgage, assignment or similar instrument.
(d) Notwithstanding the provisions of section 362 of the Bankruptcy Code, and subject to the applicable provisions of the Interim DIP Order (and, when entered, the Final DIP Order), upon the occurrence of the Maturity Date (whether by acceleration or otherwise), the Agents and the Lenders shall be entitled to immediate payment in full in cash of the Obligations and to enforce the remedies provided for hereunder or under applicable requirements of law.
Appears in 1 contract
Samples: Senior Subordinate Superpriority Secured Debtor in Possession Credit Agreement (ProSomnus, Inc.)
Priority and Liens; No Discharge. (a) Each of the Credit Parties hereby covenants and agrees that upon the entry of, and subject to the terms of, the Interim DIP Order (and when entered, the Final DIP Order) (including and without prejudice to, without limitation, in each case, any rights or liens or perfected security interests (and the priorities thereof) granted under the Interim DIP Order or Final DIP Order under any other provision of 364 of the Bankruptcy Code or any other applicable provisions of the of the Bankruptcy Code) and subject to the Carve Out in all respects, the Obligations: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute allowed DIP Superpriority Claims in the Cases; and (ii) pursuant to Section 364(c)(2), (c)(3) and (d) of the Bankruptcy Code, shall be secured by a valid, binding, enforceable, non-avoidable, and automatically perfected senior priority Lien upon the Collateral.
(b) The relative priorities of the Liens described in this Section 2.29 with respect to the Collateral shall be as set forth in the Interim DIP Order (and, when entered, the Final DIP Order). In accordance with Notwithstanding anything to the Interim DIP Order (or, once entered, the Final DIP Order)contrary in this Agreement or in any Loan Document, all of the Liens described in this Section 2.29 herein shall be effective and perfected upon entry of the Interim DIP Order, Order without the necessity of the execution, execution or recordation of filings by the Debtors of security agreements, intellectual property security agreements, mortgages, control agreements, pledge agreements, financing statements or other similar documents, or the possession or control by the Administrative Collateral Agent, as applicable, of, or over, any Collateral, as set forth in the Interim DIP Order (and, when entered, the Final DIP Order).
(ci) Each Credit Loan Party that is a Debtor hereby confirms and acknowledges that, pursuant to the Interim DIP Order (and, when entered, the Final DIP Order), the Liens in favor of the Administrative Collateral Agent on behalf of and for the benefit of the Secured Parties in all of the CollateralCollateral and the proceeds thereof, which includes, without limitation, all of such Debtor’s Real Properties (other than Excluded Assets), now existing or hereafter acquired, shall be created and perfected without the recordation or filing in any land records or filing offices of any mortgage, assignment or similar instrument.
(dii) Notwithstanding the provisions of section 362 of the Bankruptcy Code, Further to Section 2.19(b)(i) and subject to the applicable provisions of the Interim DIP Order (and, when entered, the Final DIP Order), subject to Section 2.19(b)(iv) below, to secure the full and timely payment and performance of the Obligations, each Loan Party that is a Debtor hereby MORTGAGES, GRANTS, BARGAINS, ASSIGNS, SELLS, CONVEYS and CONFIRMS, to the Collateral Agent, for the ratable benefit of the Secured Parties, all or any Real Properties (in any case, excluding any Real Properties that are Excluded Assets), but which, for the avoidance of doubt, shall include all of such Loan Party’s right, title and interest now or hereafter acquired in and to (a) any and all easements, rights-of-way, reversions, sidewalks, strips and gores of land, drives, roads, curbs, streets, ways, alleys, passages, passageways, sewer rights, waters, water courses, water rights, mineral, gas and oil rights, as-extracted collateral and all power, air, light and other rights, estates, titles, interests, privileges, liberties, servitudes, licenses, tenements, hereditaments and appurtenances whatsoever, in any way belonging, relating or appertaining thereto, or any part thereof, or which hereafter shall in any way belong, relate or be appurtenant thereto; (b) the lessee’s interest and estate in, to and under any leases and subleases to which such Loan Party is a party (as such leases and subleases may be extended, amended, supplemented, modified or restated), together with any and all easements, rights-of-way, reversions, sidewalks, strips and gores of land, drives, roads, curbs, streets, ways, alleys, passages, passageways, sewer rights, waters, water courses, water rights, mineral, gas and oil rights, as-extracted collateral and all power, air, light and other rights, estates, titles, interests, privileges, liberties, servitudes, licenses, tenements, hereditaments and appurtenances whatsoever, in any way demised under such leases and subleases; (c) any and all tipples, loading and coal washing facilities, railroad tracks, buildings, foundations, structures and other fixtures and improvements and any and all alterations and all materials now or hereafter intended for construction, reconstruction or repair thereof; (d) any and all permits, certificates, authorizations, consents, approvals, licenses, franchises, waivers or other instruments now or hereafter required by any Governmental Authority to operate or use and occupy the Real Properties and related assets for its intended uses; (e) all materials, supplies, equipment, apparatus and other items of personal property now owned or hereafter acquired by such Loan Party, and water, gas, electrical, telephone, storm and sanitary sewer facilities and all other utilities whether or not situated in easements or used or useful in connection with mining coal or other minerals or in connection with any related activities or the maintenance or preservation thereof; (f) all goods, accounts, general intangibles, instruments, documents, chattel paper, as-extracted collateral and all other personal property of any kind or character, including such items of personal property as defined in the UCC; (g) all reserves, escrows or impounds and all deposit accounts; (h) such Loan Party’s right, title and interest as lessor, landlord, sublessor, sublandlord, franchisor, licensor or grantor, in all leases and subleases (including, without limitation, intercompany leases) of land or improvements, leases and subleases of space, oil, gas and mineral leases, franchise agreements, licenses, occupancy or concession agreements or other agreements which grant to any Person (other than such Loan Party) a possessory interest in, or the right to use any Real Properties, including, all rents, additional rents, royalties, cash, guaranties, letters of credit, bonds, sureties or securities deposited thereunder to secure performance of the lessee’s, sublessee’s, franchisee’s, licensee’s or obligee’s obligations thereunder, revenues, earnings, profits and income, advance rental or royalties, payments, payments incident to assignment, sublease or surrender of a lease, claims for forfeited deposits and claims for damages, now due or hereafter to become due, with respect to any lease, any indemnification against, or reimbursement for, sums paid and costs and expenses incurred by such Loan Party under any lease or otherwise, and any award in the event of the bankruptcy of any tenant or lessee under or guarantor of a lease; (i) all other agreements, such as construction contracts, architects’ agreements, engineers’ contracts, utility contracts, maintenance agreements, management agreements, service contracts, listing agreements, guaranties, warranties, permits, licenses, certificates and entitlements in any way relating to the construction, use, occupancy, operation, maintenance, enjoyment or ownership of any Real Properties; (j) all rights, privileges, tenements, hereditaments, rights-of-way, easements, appendages and appurtenances appertaining to the foregoing; (k) all property tax refunds payable to such Loan Party; (l) all accessions, replacements and substitutions for any of the foregoing and all proceeds thereof; (m) all insurance policies, unearned premiums therefor and proceeds from such policies covering any of the above property now or hereafter acquired by such Loan Party; and (n) any awards, damages, remunerations, reimbursements, settlements or compensation heretofore made or hereafter to be made by any Governmental Authority pertaining to the Real Properties (BUT EXCLUDING from the foregoing grants, Excluded Assets), TO HAVE AND TO HOLD to the Collateral Agent, and such Loan Party does hereby bind itself, its successors and assigns to WARRANT AND FOREVER DEFEND the title to such property, assets and interests unto the Collateral Agent.
(iii) Each Loan Party that is a Debtor further agrees that upon the occurrence request of the Maturity Date Collateral Agent (whether by acceleration or otherwiseacting at the direction of the Required Lenders), such Loan Party shall execute and deliver to the Agents Collateral Agent, as soon as reasonably practicable following such request but in any event within 45 days following such request (or such later date as may be extended by the Collateral Agent), with respect to Real Properties owned or leased by such Loan Party (in any case, excluding any Real Properties that are Excluded Assets) and identified by the Lenders Collateral Agent, the applicable Loan Party shall deliver:
1. fully executed and notarized Mortgages, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each such Real Properties, and any ancillary deliverables as reasonably requested by the Collateral Agent (including, without limitation, memoranda of leases in recordable form, duly executed by the applicable landlord and Loan Party);
2. an opinion of counsel (which counsel shall be entitled reasonably satisfactory to immediate payment Collateral Agent) in full each state in cash which each such Real Property is located with respect to the enforceability of the Obligations form(s) of Mortgages to be recorded in such state and such other matters as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to enforce the remedies provided for hereunder or under applicable requirements of law.Collateral Agent; and
Appears in 1 contract
Priority and Liens; No Discharge. (a) Each of the Credit Parties hereby covenants and agrees that upon the entry of, and subject to the terms of, the Interim DIP Order (and when entered, the Final DIP Order) (including and without prejudice to, without limitation, in each case, any rights or liens or perfected security interests (and the priorities thereof) granted under the Interim DIP Order or Final DIP Order under any other provision of 364 of the Bankruptcy Code or any other applicable provisions of the of the Bankruptcy Code) and subject to the Carve Out in all respects, the Obligations: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute allowed DIP Superpriority Claims in the Cases; and (ii) pursuant to Section 364(c)(2), (c)(3) and (d) of the Bankruptcy Code, shall be secured by a valid, binding, enforceable, non-avoidable, and automatically perfected senior priority Lien upon the Collateral.
(b) The relative priorities of the Liens described in this Section 2.29 2.25 with respect to the Collateral shall be as set forth in the Interim DIP Order (and, when entered, the Final DIP Order). In accordance with the Interim DIP Order (or, once entered, the Final DIP Order), all of the Liens described in this Section 2.29 2.25 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 security agreements, intellectual property security agreements, mortgages, control agreements, pledge agreements, financing statements or other similar documents, or the possession or control by the Administrative Agent, of, or over, any Collateral, as set forth in the Interim DIP Order (and, when entered, the Final DIP Order).
(c) Each Credit Party that is a Debtor hereby confirms and acknowledges that, pursuant to the Interim DIP Order (and, when entered, the Final DIP Order), the Liens in favor of the Administrative Agent on behalf of and for the benefit of the Secured Parties in all of the Collateral, now existing or hereafter acquired, shall be created and perfected without the recordation or filing in any land records or filing offices of any mortgage, assignment or similar instrumentinstrument (provided, however, that as to a Lien on all fee, leasehold, and other real property interests and the proceeds thereof: (i) with respect to non-residential real property leases, no liens or encumbrances shall be granted or extended to such leases, except as permitted by the applicable lease or applicable law, provided further that if any such restriction applies, Liens shall then be deemed to be granted and created upon the economic value thereof, including the proceeds of any sale or other disposition of, and any other proceeds or products of, such leasehold interests; and (ii) should the Administrative Agent’s internal regulatory or compliance requirements require the completion of either or both flood due diligence and obtaining evidence of applicable flood insurance with respect to any real property or leasehold interest, then until completion of such flood due diligence, the Administrative Agent shall be deemed to have obtained a lien only on the economic value of, proceeds of any sale or other disposition of such real property interests).
(d) Notwithstanding the provisions of section 362 of the Bankruptcy Code, and subject to the applicable provisions of the Interim DIP Order (and, when entered, the Final DIP Order), upon the occurrence of the Maturity Date (whether by acceleration or otherwise), the Agents and the Lenders shall be entitled to immediate payment in full in cash of the Obligations and to enforce the remedies provided for hereunder or under applicable requirements of law.. 102
Appears in 1 contract
Samples: Debtor in Possession Abl Credit and Guaranty Agreement (QualTek Services Inc.)
Priority and Liens; No Discharge. (a) Each of the Credit Loan Parties hereby covenants and agrees that upon the entry of, and subject to the terms of, the Interim DIP Order (and when entered, including the Final DIP Order) (including and without prejudice to, without limitation, in each case, any rights or liens or perfected security interests (and the priorities thereof) granted under the Interim DIP Order or Final DIP Order under any other provision of 364 of the Bankruptcy Code or any other applicable provisions of the of the Bankruptcy Code) and subject to the Carve Out in all respectsPriority Waterfall), the Obligations: (i1) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed DIP Superpriority Claims superpriority administrative expense claim in the CasesCases (the “Superpriority Claims”) having a super-priority over any and all administrative expenses and claims, of any kind or nature whatsoever, and the administrative expenses of the kinds specified in or ordered pursuant to Bankruptcy Code sections 105, 326, 327, 328, 330, 331, 361, 362, 363, 364, 365, 503, 506, 507(a), 507(b), 546, 552, 726, 1113 and 1114, and any other provision of the Bankruptcy Code (“DIP Claims”); and (ii2) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien on all of the property (whether tangible, intangible, real, personal or mixed) of such Loan Parties whether now existing or hereafter acquired (including, but not limited to, any proceeds received from the Pacific Zonda Arbitration, unencumbered cash, spare parts (including the Loan Parties’ spare blowout preventer, thrusters and spare riser string)), that is not subject to valid, perfected, non-voidable liens in existence at the time of commencement of the Cases or to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (c)(3but excluding a claim on Avoidance Actions but, subject to entry of the DIP Order, the proceeds of Avoidance Actions (other than Avoidance Actions that are property of the estates of either PDSI or PDVIII)); (3) and (dpursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, enforceablecontinuing, enforceable perfected junior Lien (other than with respect to Primed Liens) upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-avoidablevoidable Liens in existence at the time of the commencement of the Cases or that is subject to valid Liens in existence at the time of the commencement of the Cases that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code; and (4) pursuant to Section 364(d)(l) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on all of the “Collateral” (as defined in the 2017 Notes Indenture) and automatically the “Pari Passu Collateral” (as defined in the Intercreditor Agreement) (other than with respect to the Revolving Credit Obligations and liens securing the Revolving Credit Obligations (including any related adequate protection obligations) which shall not be primed and shall rank senior to the priming lien created hereunder, to the extent set forth in the DIP Order (including the Priority Waterfall)) (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to the perfected first priority senior priority Lien upon Liens to be granted to the CollateralCollateral 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 under clauses (1) through (4) above, subject in each case to Carve-Out and as set forth in the DIP Order (including the Priority Waterfall).
(bi) The relative priorities Each Loan Party hereby confirms and acknowledges that, pursuant to the DIP Order, the Liens in favor of the Collateral Agent on behalf of and for the benefit of the Lender Creditors in all of such Loan Party’s Collateral, which includes, without limitation, all of such Loan Party’s Real Property, shall be created and perfected without the recordation or filing in any land records or filing offices of any Mortgage, assignment or similar instrument.
(c) All of the Liens described in this Section 2.29 with respect to the Collateral shall be as set forth in the Interim DIP Order (and, when entered, the Final DIP Order). In accordance with the Interim DIP Order (or, once entered, the Final DIP Order), all of the Liens described in this Section 2.29 2.12 shall be effective and perfected upon entry of the Interim DIP Order, Order without the necessity of the execution, recordation of filings by the Debtors of mortgages, security agreements, intellectual property security agreements, mortgages, control agreements, pledge agreements, financing statements or other similar documents, or the possession or control by the Administrative Agent, Collateral Agent of, or over, any Collateral, as set forth in the Interim DIP Order (and, when entered, the Final DIP Order).
(c) Each Credit Party that is a Debtor hereby confirms and acknowledges that, pursuant to the Interim DIP Order (and, when entered, the Final DIP Order), the Liens in favor of the Administrative Agent on behalf of and for the benefit of the Secured Parties in all of the Collateral, now existing or hereafter acquired, shall be created and perfected without the recordation or filing in any land records or filing offices of any mortgage, assignment or similar instrument.
(d) Notwithstanding The relative priorities of the provisions Liens described in this Section 2.12 with respect to the Collateral of section 362 the Debtors shall be as set forth in the DIP Order (including the Priority Waterfall and any other exhibits applicable thereto, if any). All of the Liens described in this Section 2.12 shall be effective and perfected upon entry of the DIP Order.
(e) Each of the Loan Parties agrees that to the extent that the Obligations (other than contingent indemnification obligations not yet due) under the Loan Documents have not been satisfied in full in cash, the Obligations under the Loan Documents shall not be discharged by the entry of an order confirming a plan of reorganization, and each of the Loan Parties, pursuant to Section 1141(d)(4) of the Bankruptcy Code, hereby waives any such discharge and subject the Superpriority Claim granted to the applicable provisions of the Interim DIP Order (and, when entered, the Final DIP Order), upon the occurrence of the Maturity Date (whether by acceleration or otherwise), the Agents Administrative Agent and the Lenders pursuant to the DIP Order and the Liens granted to the Collateral Agent and the Lenders pursuant to the DIP Order shall not be entitled to immediate payment affected in full in cash any manner by the entry of the Obligations and to enforce the remedies provided for hereunder or under applicable requirements an order confirming a plan of lawreorganization.
Appears in 1 contract
Samples: Superpriority Secured Debtor in Possession Term Loan Agreement (Pacific Drilling S.A.)
Priority and Liens; No Discharge. (a) Each of the Credit Loan Parties that is a Debtor hereby covenants and agrees that upon the entry of, and subject to the terms of, the of an Interim DIP Order (and when entered, the Final DIP Order) (including its obligations hereunder and without prejudice tounder the Loan Documents shall, without limitationsubject, solely to the extent set forth in each case, any rights or liens or perfected security interests the Interim Order (and when entered, the priorities thereofFinal Order) granted under the Interim DIP Order or Final DIP Order under any other provision of 364 of the Bankruptcy Code or any other applicable provisions of the of the Bankruptcy Code) and subject to the Carve Out in all respectsand Permitted Priority Liens, the Obligations: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute allowed DIP Superpriority Claims in the Cases; and (ii) times, pursuant to Section 364(c)(2), (c)(3) and (d) of the Bankruptcy Code, shall be secured by a validperfected Lien on and security interest in all of the Collateral of the Debtors, bindingwhether consisting of Real Estate, enforceableor personal, non-avoidabletangible or intangible property, and automatically perfected senior priority Lien upon whether now owned or hereafter acquired, excepting Excluded Assets, unless such Collateral has been released in accordance with Section 9.15 in connection with transactions permitted under the CollateralLoan Documents.
(b) The relative priorities of the Liens described in this Section 2.29 with respect to the Collateral of the Debtors shall be as set forth in the Interim DIP Order (and, when entered, the Final DIP Order). In accordance with .
(c) Each Loan Party that is a Debtor hereby confirms and acknowledges that, pursuant to the Interim DIP Order (orand, once when entered, the Final DIP Order), the Liens in favor of the Collateral Agent on behalf of and for the benefit of the Secured Parties in all of the Liens Collateral of such Loan Party (including, without limitation, (x) all of the outstanding shares of capital stock of subsidiaries and (y) any property and rights of such Loan Parties described in this Section 2.29 the Orders and/or the U.S. Collateral Agreement) shall be effective created and perfected upon entry of perfected, to the Interim DIP Ordermaximum extent permitted by law, without the necessity execution or the recordation or filing in any land records or filing offices, of the executionany Mortgage, recordation of filings by the Debtors of security agreementsassignment, intellectual property security agreements, mortgages, control agreements, pledge agreements, financing statements or other similar documents, or the possession or control by the Administrative Agent, Collateral Agent of, or over, any such Collateral, as set forth in the Interim DIP Order (and, when entered, the Final DIP Order).
(cd) Each Credit Party that is a Debtor hereby confirms and acknowledges thatFurther to Section 2.20(a)-(c), pursuant to the Interim DIP Order (and, when entered, the Final DIP Order), to secure the Liens full and timely payment and performance of (A) the Secured Obligations, each Loan Party that is a Debtor hereby MORTGAGES, GRANTS, BARGAINS, ASSIGNS, SELLS, CONVEYS and CONFIRMS, to the Collateral Agent, for the ratable benefit of the Secured Parties, in favor each case to the extent constituting Collateral, the Real Estate (which, for the avoidance of doubt, shall include all of such Debtor’s right, title and interest now or hereafter acquired in and to all Real Estate and (a) all goods, accounts, inventory, general intangibles, instruments, documents, contract rights and chattel paper, (b) all reserves, escrows or impounds and all deposit accounts maintained by such Debtor with respect to the Real Estate, (c) all leases, licenses, concessions, occupancy agreements or other agreements (written or oral, now or at any time in effect) which grant to any Person a possessory interest in, or the right to use, all or any part of the Real Estate, together with all related security and other deposits, (d) all of the rents, revenues, royalties, income, proceeds, profits, accounts receivable, security and other types of deposits, and other benefits paid or payable by parties to the leases for using, leasing, licensing possessing, operating from, residing in, selling or otherwise enjoying the Real Estate, (e) all other agreements, such as construction contracts, architects’ agreements, engineers’ contracts, utility contracts, maintenance agreements, management agreements, service contracts, listing agreements, guaranties, warranties, permits, licenses, certificates and entitlements in any way relating to the construction, use, occupancy, operation, maintenance, enjoyment or ownership of the Real Estate, (f) all rights, privileges, tenements, hereditaments, rights-of-way, easements, appendages and appurtenances appertaining to the foregoing, (g) all property tax refunds payable with respect to the Real Estate, (h) all accessions, replacements and substitutions for any of the foregoing and all proceeds thereof, (i) all insurance policies, unearned premiums therefor and proceeds from such policies covering any of the above property now or hereafter acquired by such Debtor as an insured party, and (j) all awards, damages, remunerations, reimbursements, settlements or compensation heretofore made or hereafter to be made to any Debtor by any governmental authority pertaining to any condemnation or other taking (or any purchase in lieu thereof) of all or any Real Estate), TO HAVE AND TO HOLD to the Collateral Agent, and such 70 Debtor does hereby bind itself, its successors and assigns to WARRANT AND FOREVER DEFEND the title to such property, assets and interests unto the Collateral Agent.
(e) Each Loan Party that is a Debtor further agrees that, upon the request of the Administrative Agent on behalf of and for or the benefit Collateral Agent (in each case, at the direction of the Secured Parties Required Lenders) such Debtor shall, as soon as reasonably practicable following such request but in all any event within 60 days following such request (as extended by the Collateral Agent, at the written direction of the CollateralRequired Lenders), now existing or hereafter acquiredwith respect to any Material Real Property identified by the Collateral Agent, shall be created execute and perfected without deliver to the recordation or filing in any land records or filing offices Collateral Agent a Mortgage and otherwise satisfy clause (e)(ii) of any mortgage, assignment or similar instrumentthe Domestic Collateral and Guarantee Requirement definition with respect to such Material Real Property.
(df) Notwithstanding Each of the provisions Loan Parties agrees that to the extent that the Loan Document Obligations shall not have been satisfied in full in cash, unless a Lender has otherwise agreed in writing in respect of section 362 the applicable obligations owed to it, (i) such Loan Document Obligations shall not be discharged by any order confirming a Chapter 11 Plan (and each of the Loan Parties, pursuant to Section 1141(d)(4) of the Bankruptcy Code, hereby waives any such discharge) and subject (ii) the Superpriority Claims granted to the applicable provisions of the Interim DIP Order (and, when entered, the Final DIP Order), upon the occurrence of the Maturity Date (whether by acceleration or otherwise), the Agents Administrative Agent and the Lenders pursuant to the Orders and the Liens granted to the Collateral Agent and the Lenders pursuant to the Orders shall not be entitled to immediate payment affected in full in cash of the Obligations and to enforce the remedies provided for hereunder or under applicable requirements of lawany manner by any order confirming a Chapter 11 Plan.
Appears in 1 contract
Samples: Superpriority Secured Debtor in Possession Credit Agreement (Invacare Corp)
Priority and Liens; No Discharge. (a) Each of the Credit Loan Parties hereby covenants and agrees that upon the entry ofof an Interim Order (and, when applicable, the Final Order) its obligations hereunder and under the other Loan Documents shall be subject to the terms of, the Interim DIP Order (and when entered, the Final DIP Order) (including and without prejudice to, without limitation, in each case, any rights or liens or perfected security interests (and the priorities thereof) granted under the Interim DIP Order or Final DIP Order under any other provision of 364 of the Bankruptcy Code or any other applicable provisions of the of the Bankruptcy Code) and subject to the Carve Carve-Out in all respects, the Obligationsand: (i) pursuant to Section section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed DIP Superpriority Claims superpriority administrative expense claim in the CasesCase of such Loan Party (collectively, the “Superpriority Claims”); and (ii) pursuant to Section section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority security interest in and Lien on the Collateral of each Loan Party (A) to the extent such Collateral is not subject to valid, perfected and non-avoidable Liens as of the Petition Date and (B) excluding claims and causes of action under sections 502(d), 544, 545, 547, 548, 550 and 553 of the Bankruptcy Code (c)(3collectively, “Avoidance Actions”) (it being understood that notwithstanding such exclusion of Avoidance Actions, upon entry of the Final Order, such security interest and Lien shall attach to any proceeds of Avoidance Actions), provided that such security interest in and Lien on ABL Postpetition Collateral shall be subject and subordinate to the Prepetition ABL Adequate Protection Liens; (diii) except as otherwise provided in the immediately following clause (iv), pursuant to section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, enforceablecontinuing, nonenforceable perfected second priority security interest in and Lien on the ABL Facility Priority Collateral, junior only to the security interest and Liens of the ABL Agent and the ABL Lenders with respect to such ABL Facility Priority Collateral; and (iv) pursuant to section 364(d)(1) of the Bankruptcy Code, be secured by (A) a valid, binding, continuing, enforceable perfected first priority priming security interest in and Lien on the Term Loan Priority Collateral of each Loan Party (the “Term Loan Priority Collateral Priming Liens”) to the extent that such Collateral is subject to existing Liens that secure the obligations of the applicable Loan Party under the Prepetition Term Loan Credit Agreement (collectively, the “Term Loan Priority Collateral Primed Liens”) and (B) a valid, binding, continuing, enforceable perfected second priority priming security interest in and Lien on the ABL Facility Priority Collateral of each Loan Party (the “ABL Collateral Priming Liens” and, together with the Term Loan Priority Collateral Priming Liens, the “Priming Liens”) to the extent that such Collateral is subject to existing second priority Liens that secure the obligations of the applicable Loan Party under Prepetition Term Loan Credit Agreement (collectively, the “ABL Collateral Primed Liens” and, together with the Term Loan Priority Collateral Primed Liens, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to the perfected first or second priority Liens, as the case may be, to be granted to the Administrative Agent for the benefit of the Secured Parties, which Priming Liens in favor of the Administrative Agent for the benefit of the Secured Parties shall also prime any Liens (other than, with respect to the ABL Facility Priority Collateral and the ABL Postpetition Collateral, the Prepetition ABL Adequate Protection Liens) granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens, subject to the Carve-avoidable, and automatically perfected senior priority Lien upon the CollateralOut.
(b) The relative priorities of the Liens described in this Section 2.29 with respect to the Collateral shall be as set forth in the Interim DIP Order (and, when entered, the Final DIP Order). In accordance with the Interim DIP Order (or, once entered, the Final DIP Order), all of the Liens described in this Section 2.29 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 security agreements, intellectual property security agreements, mortgages, control agreements, pledge agreements, financing statements or other similar documents, or the possession or control by the Administrative Agent, of, or over, any Collateral, as set forth in the Interim DIP Order (and, when entered, the Final DIP Order).
(ci) Each Credit Loan Party that is a Debtor hereby confirms and acknowledges that, pursuant to the Interim DIP Order (and, when entered, the Final DIP Order), the Liens in favor of the Administrative Agent on behalf of and for the benefit of the Secured Parties in all of the such Loan Party’s Collateral, now existing or hereafter acquiredwhich includes all of such Loan Party’s Real Property, shall be created and perfected without the recordation or filing in any land records or filing offices of any mortgageMortgage, assignment or similar instrument. All of the Liens described in this Section 2.14 shall be effective and perfected upon entry of the Interim Order without the necessity of the execution, recordation of filings by the Debtors of mortgages, security agreements, control agreements, pledge agreements, financing statements or other similar documents, or the possession or control by the Administrative Agent of, or over, any Collateral, as set forth in the Interim Order.
(dc) Notwithstanding the provisions of section 362 of the Bankruptcy Code, (ii) Further to Section 2.14(b)(i) and subject to the applicable provisions of the Interim DIP Order (and, when entered, the Final DIP Order), subject to Section 2.14(a) above and 2.14(d) below, to secure the full and timely payment and performance of the Obligations, each Loan Party hereby GRANTS, BARGAINS, SELLS, CONVEYS, TRANSFERS, ASSIGNS and SETS OVER to the Administrative Agent for the ratable benefit of the Secured Parties, with power of sale (if applicable), all of the types and items of real and personal property and interests whether now owned by or hereafter acquired by such Loan Party, including such Loan Party’s right, title and interest in and to: (i) Salt Water Disposal Assets; (ii) land; (iii) leases demising land or improvements, including all amendments, supplements, consolidations, extensions, renewals and other modifications now or hereafter entered into; (iv) any and all buildings, structures, improvements, alterations or appurtenances; (v) all (1) streets, roads, alleys, easements, rights-of-way, licenses, rights of ingress and egress, vehicle parking rights and public places, existing or proposed, abutting, adjacent, used in connection with or pertaining to any land or leased premises of such Loan Party, (2) strips or gores between parcels of land and abutting or adjacent properties, (3) options to purchase land or demised premises or any portion thereof or interest therein, and any greater estate in land, demises premises or improvements, and (4) water and water rights, timber, crops and mineral interests on or pertaining to land owned or leased by such Loan Party; (vi) all fixtures, equipment, systems, machinery, furniture, furnishings, appliances, goods, building and construction materials, supplies, and articles of personal property, of every kind and character, tangible and intangible (including software embedded therein), now owned or hereafter acquired by such Loan Party, including, but not limited to, any and all oil xxxxx, gas xxxxx, injection xxxxx, salt water disposal xxxxx, or other xxxxx, buildings, structures, fuel separators, liquid extraction plants, plant compressors, pumps, pumping units, field gathering systems, gas processing plants and pipeline systems and any related infrastructure to any thereof, tanks and tank batteries, fixtures, valves, fittings, machinery and parts, engines, boilers, meters, apparatus, equipment, appliances, tools, implements, cables, wires, towers, casing, tubing and rods, surface leases, rights-of-way, easements and servitudes together with all additions, substitutions, replacements, accessions and attachments to any and all of the foregoing), product marketing terminal, storage tanks (including tank bottoms and substances lying below the outlet flange), and pipelines (including line fill), and all renewals and replacements of, substitutions for and additions to the foregoing; (vii) all (A) plans and specifications for improvements; (B) all commitments, insurance policies (or additional or supplemental coverage related thereto), contracts and agreements for the design, construction, operation or inspection of the improvements or equipment or the operation thereof; (viii) all intangible property used by such Loan Party, including, without limitation, all contract rights, guarantees, permits, consents of governmental authorities, licenses, franchises, certificates, development rights, commitments and rights for utilities, and other rights and privileges relating solely to the ownership, operation or maintenance of land, leased premises, improvements or equipment, and all of such Loan Party’s right, title and interest in and to all proceeds of the conversion, whether voluntary or involuntary, of any of the above-described property into cash as illiquid claims including, without limitation, all awards, payments or proceeds, including interest thereon, and the right to receive the same, which may be made as a result of casualty, any exercise of the right of eminent domain or deed in lieu thereof, the alteration of the grade of any street and any injury to or decrease in the value thereof, and any rights to a rebate, offset or other assignment, warranty or service under a purchase order, invoice or purchase agreement with any manufacturer or supplier of any portion of the foregoing; (ix) leases, rents, royalties, bonuses, issues, profits, revenues and other benefits of land, demised premises, improvements or equipment; (xi) as-extracted collateral; (xii) engineering, accounting, title, legal, and other technical or business data which are in the possession of such Loan Party or in which such Loan Party can otherwise grant a security interest, including but not limited to proceeds of any sale, lease or other disposition thereof, proceeds of each policy of insurance (or additional or supplemental coverage related thereto); and (xiii) all articles of personal property of every kind and nature whatsoever owned by such Loan Party, or in which such Loan Party has or shall have an interest, including without limitation, all building equipment, materials and supplies and any of the Collateral which may be subject to any security interests, foregoing rights, interests and properties, and all rights, estates, powers and privileges appurtenant thereto, unto the Administrative Agent, and its successors and assigns, for the ratable benefit of the Secured Parties, in trust, forever, to secure the Obligations. Each Loan Party hereby agrees to warrant and forever defend, all and singular, title to the foregoing property and interests forever against every person whomsoever lawfully claiming, or to claim, the same or any part thereof, subject, however, to Permitted Liens. Notwithstanding the foregoing, excluded from the foregoing grant of Lien is any right, title and interest of any Loan Party in and to any (i) Real Property improved by a Building or Manufactured (Mobile) Home and no such property shall be “Collateral” hereunder to the extent and for so long as the Flood Zone Requirements with respect to such property has not been satisfied to the satisfaction of each federally regulated Lender and (ii) property and assets described in Section 2.14(d) below.
(d) (iii) Each Loan Party further agrees that, upon the occurrence request of the Maturity Administrative Agent, in the exercise of its business judgment, such Loan Party shall execute and deliver to the Administrative Agent, as soon as reasonably practicable following such request but in any event within 60 days following such request (or such longer periods as agreed by the Administrative Agent, at the direction of the Required Lenders (which, for the avoidance of doubt, may be provided via email), in their sole discretion), Mortgages in recordable form with respect to such Material Real Property owned or leased by such Loan Party and identified by the Administrative Agent on terms reasonably satisfactory to the Administrative Agent and including the deliverables (as applicable) as necessary to satisfy the Real Estate Collateral Requirement within the time periods specified therein.
(c) Notwithstanding anything to the contrary herein, in no event shall the Collateral include (a) any Equipment (as defined in the UCC) owned by any Debtor on the date hereof or hereafter acquired that is subject to a Permitted Lien if the contract or other agreement in which such Lien is granted validly prohibits the creation of any other Lien on such Equipment except to the extent such prohibition is ineffective under the UCC or rendered ineffective by the Orders or the Bankruptcy Code; provided that such contractual prohibition existed on the Closing Date, or, with respect to any Subsidiary acquired after the Closing Date (whether and so long as such contractual prohibition was not incurred in contemplation of such acquisition), on the date such Subsidiary is so acquired; (b) General Intangibles, Contracts, and Investment Property (each as defined in the UCC) which by acceleration their respective express terms prohibit the grant of a security interest, except to the extent such prohibition is ineffective under the UCC or otherwiserendered ineffective by the Orders or the Bankruptcy Code; provided that such contractual prohibition existed on the Closing Date, or, with respect to any Subsidiary acquired after the Closing Date (and so long as such contractual prohibition was not incurred in contemplation of such acquisition), on the date such Subsidiary is so acquired; (c) permits and licenses to the extent the grant of a security interest therein is prohibited under applicable Law or regulation or by their express terms, except to the extent such prohibition is ineffective under the UCC or rendered ineffective by the Orders or the Bankruptcy Code; (d) 34% of the Equity Interests in each direct Subsidiary of any Loan Party that is a “controlled foreign corporation” under the Code; and (e) until such time as the Credit Card Control Agreement is terminated or otherwise no longer in effect, the Credit Card Cash Collateral; provided that the Collateral shall include the Borrower’s interests in the Credit Card Cash Collateral, including any residual interest therein after payment in full of the Borrower’s obligations under the P-Card Agreements.
(e) (d) The relative priorities of the Liens described in this Section 2.14 with respect to the Collateral of the Debtors shall be as set forth in the Interim Order (and, when entered, the Final Order). In the event of any inconsistency between this Section 2.14 and the terms of the Interim Order (and, when entered, the Final Order), the Agents and the Lenders shall be entitled to immediate payment in full in cash terms of the Obligations and to enforce Interim Order (and, when entered, the remedies provided for hereunder or under applicable requirements of lawFinal Order) shall govern.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Basic Energy Services Inc)
Priority and Liens; No Discharge. (a) Each of the Credit Parties The Borrower hereby, for itself and for each other Loan Party that owns Collateral4, hereby covenants covenants, acknowledges and agrees that upon the entry of, and subject to the terms of, of the Interim DIP Financing Order (and when enteredapplicable, the Final DIP Financing Order) (its Obligations, including its obligations hereunder and without prejudice to, without limitation, in each case, any rights or liens or perfected security interests (and the priorities thereof) granted under the Interim DIP Order or Final DIP Order Loan Documents and under any other provision of 364 of the Bankruptcy Code or any other applicable provisions of the of the Bankruptcy Code) and subject to the Carve Out in all respects, the ObligationsCollateral Documents: (i1) pursuant to Section 364(c)(1) of the Bankruptcy CodeCode and subject to the Carve-Out, shall at all times constitute an allowed DIP Superpriority Claims superpriority administrative expense claim in the CasesChapter 11 Case of such Loan Party having a superpriority over any and all administrative expenses and claims, of any kind or nature whatsoever, including, without limitation, the superpriority claims and adequate protection claims granted to any prepetition secured parties under the Interim DIP Financing Order and the Final DIP Financing Order, and the administrative expenses of the kinds set forth in or ordered pursuant to Bankruptcy Code sections 105, 326, 327, 328, 330, 331, 361, 362, 363, 364, 365, 503, 506(c) (subject to entry of the Final DIP Financing Order), 507(a), 507(b), 546, 552, 726, 1113 and 1114; and (ii2) pursuant to Section sections 364(c)(2), (c)(3) and (d364(c)(3) of the Bankruptcy CodeCode and subject to the Carve-Out, shall at all times be secured by a valid, binding, enforceablecontinuing, non-avoidableenforceable perfected Lien on all Collateral (whether tangible, intangible, real, personal or mixed) and automatically all proceeds thereof of such Loan Parties whether now existing or hereafter acquired, which Lien (i) with respect to Collateral that is subject to valid, perfected, unavoidable Liens in favor of third parties permitted under the Prepetition Loan Documents (x) in existence immediately prior to the Petition Date or (y) that were perfected senior subsequent to the Petition Date as permitted by Section 546(b) of the Bankruptcy Code, shall rank junior to such Liens in favor of third parties (the “Permitted Prior Liens”); and (ii) to the extent such Collateral is not subject to Permitted Prior Liens, shall be a perfected first priority security interest and Lien upon on the Collateral of each Loan Party; provided that, the Obligations shall not be secured by property that constitutes Excluded Assets (but shall be secured by the proceeds of Excluded Assets to the extent such proceeds would independently constitute Collateral).
(b) The relative priorities of the Liens described in this Section 2.29 with respect Borrower hereby, for itself and for each other Loan Party, hereby covenants, acknowledges and agrees that, pursuant to the Collateral shall be as set forth in the Interim DIP Financing Order (and, when entered, the Final DIP Order). In accordance with the Interim DIP Order (or, once entered, the Final DIP Order), all of the Liens described in this Section 2.29 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 security agreements, intellectual property security agreements, mortgages, control agreements, pledge agreements, financing statements or other similar documents, or the possession or control by the Administrative Agent, of, or over, any Collateral, as set forth in the Interim DIP Order (and, when entered, the Final DIP Order).
(c) Each Credit Party that is a Debtor hereby confirms and acknowledges that, pursuant to the Interim DIP Order (and, when entered, the Final DIP Financing Order), the Liens in favor of the Administrative Agent on behalf of and for the benefit of the Secured Parties in all of the such Loan Party’s Collateral, now existing or hereafter acquired, shall be created and perfected without the recordation or filing in any land records or filing offices of any mortgage, assignment or similar instrument.
(d) Notwithstanding the provisions of section 362 of the Bankruptcy Code, and subject to the applicable provisions of the Interim DIP Order (and, when entered, the Final DIP Order), upon the occurrence of the Maturity Date (whether by acceleration or otherwise), the Agents and the Lenders shall be entitled to immediate payment in full in cash of the Obligations and to enforce the remedies provided for hereunder or under applicable requirements of law.
Appears in 1 contract
Samples: Restructuring Support Agreement (Washington Prime Group, L.P.)
Priority and Liens; No Discharge. (a) Each of the Credit Parties hereby covenants and agrees that upon the entry of, and subject to the terms of, the Interim DIP Order (and when entered, the Final DIP Order) (including and without prejudice to, without limitation, in each case, any rights or liens or perfected security interests (and the priorities thereof) granted under the Interim DIP Order or Final DIP Order under any other provision of 364 of the Bankruptcy Code or any other applicable provisions of the of the Bankruptcy Code) and subject to the Carve Out in all respects, the Obligations: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute allowed DIP Superpriority Claims in the Cases; and (ii) pursuant to Section 364(c)(2), (c)(3) and (d) of the Bankruptcy Code, shall be secured by a valid, binding, enforceable, non-avoidable, and automatically perfected senior priority Lien upon the Collateral.
(b) The relative priorities of the Liens described in this Section 2.29 2.25 with respect to the Collateral shall be as set forth in the Interim DIP Order (and, when entered, the Final DIP Order). In accordance with the Interim DIP Order (or, once entered, the Final DIP Order), all of the Liens described in this Section 2.29 2.25 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 security agreements, intellectual property security agreements, mortgages, control agreements, pledge agreements, financing statements or other similar documents, or the possession or control by the Administrative Agent, of, or over, any Collateral, as set forth in the Interim DIP Order (and, when entered, the Final DIP Order).
(c) Each Credit Party that is a Debtor hereby confirms and acknowledges that, pursuant to the Interim DIP Order (and, when entered, the Final DIP Order), the Liens in favor of the Administrative Agent on behalf of and for the benefit of the Secured Parties in all of the Collateral, now existing or hereafter acquired, shall be created and perfected without the recordation or filing in any land records or filing offices of any mortgage, assignment or similar instrumentinstrument (provided, however, that as to a Lien on all fee, leasehold, and other real property interests and the proceeds thereof: (i) with respect to non-residential real property leases, no liens or encumbrances shall be granted or extended to such leases, except as permitted by the applicable lease or applicable law, provided further that if any such restriction applies, Liens shall then be deemed to be granted and created upon the economic value thereof, including the proceeds of any sale or other disposition of, and any other proceeds or products of, such leasehold interests; and (ii) should the Administrative Agent’s internal regulatory or compliance requirements require the completion of either or both flood due diligence and obtaining evidence of applicable flood insurance with respect to any real property or leasehold interest, then until completion of such flood due diligence, the Administrative Agent shall be deemed to have obtained a lien only on the economic value of, proceeds of any sale or other disposition of such real property interests).
(d) Notwithstanding the provisions of section 362 of the Bankruptcy Code, and subject to the applicable provisions of the Interim DIP Order (and, when entered, the Final DIP Order), upon the occurrence of the Maturity Date (whether by acceleration or otherwise), the Agents and the Lenders shall be entitled to immediate payment in full in cash of the Obligations and to enforce the remedies provided for hereunder or under applicable requirements of law.
Appears in 1 contract
Samples: Restructuring Support Agreement (QualTek Services Inc.)
