Priority and Liens. (a) Subject to Section 2.20(c), each of the Loan Parties hereby covenants and agrees that, upon the entry of the DIP Order, its obligations hereunder and under the Loan Documents: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP Order; (ii) 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 (that is subject to the terms of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable 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 (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on all of the property of such Loan Parties that is subject to the existing liens which secure the Existing Second Lien Debt (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the 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, subject in each case to the Carve-Out and as set forth in the DIP Order and the Intercreditor Agreement. (a) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c). (b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section (c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.
Appears in 2 contracts
Samples: Debtor in Possession Loan Agreement, Debtor in Possession Loan Agreement
Priority and Liens. (a) Subject The Loan Parties hereby covenant, represent and warrant that, upon entry of the Final Order and subject to Section 2.20(c)the terms thereof, each the Obligations of the Loan Parties hereby covenants and agrees that, upon the entry of the DIP Order, its obligations hereunder and under the other Loan Documents: , (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesClaims, subject to any limitations set forth in the DIP Order; (ii) 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 Collateral that is subject to the terms otherwise not encumbered by a valid perfected and non-avoidable Lien as of the Intercreditor Agreement Petition Date or a valid and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, 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 perfected Lien in existence at the time of such commencement that are is perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code Code, excluding (limited, in the case of voting equity interests of CFC’s, 65x) 35% percent of the total outstanding voting equity interests); Capital Stock of each new or existing Foreign Subsidiary and (y) avoidance actions but including the proceeds thereof, (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, Collateral that is subject to valid, perfected and non-voidable avoidable Liens in existence at on the time of the commencement of the Cases Petition Date 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 (other than certain property that is subject to secure the Prepetition Obligations) (but not granted) thereafter to the existing Liens that secure obligations extent such post-Petition Date perfection in respect of a pre-Petition Date claim is expressly permitted under the Existing Second Lien DebtBankruptcy Code, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on upon all of the property of such Loan Parties Collateral (x) that is subject to a valid Lien or security interest in effect on the existing liens which Petition Date to secure the Existing Second Prepetition Obligations, (y) that is subject to a Lien Debt granted after the Petition Date to provide adequate protection in respect of the Prepetition Obligations or (z) that is subject to a valid Lien in effect on the Petition Date that is junior to the Liens that secure the Prepetition Obligations, subject and subordinate in each case with respect to subclauses (i) through (iv) above, only to the Carve Out. For purposes hereof, the “Carve Out” shall mean the sum of (A) all fees required to be paid to the Clerk of the Bankruptcy Court and to the Office of the United States Trustee under section 1930(a) of title 28 of the United States Code, (B) the costs of administrative expenses not to exceed $50,000 in the aggregate that are permitted to be incurred by any Chapter 7 trustee pursuant to any order of the Bankruptcy Court following any conversion of any of the Cases pursuant to section 1112 of the Bankruptcy Code, and (C) at any time after the first Business Day following delivery of a Carve-Out Trigger Notice, to the extent allowed at any time, whether before or after delivery of a Carve-Out Trigger Notice, whether by interim order, procedural order or otherwise, all unpaid fees, costs and expenses (collectively, the “Primed LiensProfessional Fees”) incurred by persons or firms retained by the Debtors pursuant to Section 327, 328 or 363 of the Bankruptcy Code and any official committee of unsecured creditors appointed in the Cases pursuant to Section 1103 of the Bankruptcy Code (collectively, the “Professional Persons”), the payment of all Professional Fees incurred by the Professional Persons at any time after the first Business Day following delivery of which Primed Liens shall be primed a Carve-Out Trigger Notice in an aggregate amount not exceeding $15,000,000 (the “Carve-Out Cap”) (plus all unpaid Professional Fees allowed at any time by and made subject and subordinate to (the Bankruptcy Court, whether before or after delivery of a Carve-Out Trigger Notice, whether by interim order, procedural order or otherwise, that were incurred by the Professional Persons on or prior to the extent set forth in first Business Day following the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor delivery of the 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, subject in each case to the Carve-Out Trigger Notice), provided that (x) the Carve Out shall not be available to pay any such Professional Fees incurred in connection with the initiation or prosecution of any Prohibited Claims or the initiation or prosecution of any claims, causes of action, adversary proceedings or other litigation against the Administrative Agent, the Lenders, the Prepetition Lenders or the Prepetition Agent and as set forth (y) the Carve Out shall not be reduced by the payment of Professional Fees incurred prior to the first Business Day following delivery of a Carve-Out Trigger Notice without regard to when such amounts are allowed by the Bankruptcy Court. Notwithstanding anything herein to the contrary, the Carve Out shall not be used to commence or prosecute any Prohibited Claim. Upon delivery of a Carve-Out Trigger Notice or the commencement of a liquidation, the Borrower shall deposit the amount prior to making any distributions of the Carve Out in a segregated account solely for payment of Professional Fees that are within the DIP Order and the Intercreditor AgreementCarve Out.
(ab) As to all Collateral, including without limitation, all cash, Cash Equivalents and real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) Party, or the possession of which is held by any such Loan Party pursuant to in the form of a leasehold interest, such each Loan Parties Party hereby assign assigns and convey conveys as security, grant grants a security interest in, hypothecatehypothecates, mortgagemortgages, pledge pledges and set sets over unto the Administrative Agent on behalf of the Lenders all of the right, title and interest of the Borrower and such Loan Parties Guarantor in all of such Collateral, including without limitation, all cash, Cash Equivalents and owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of the Borrower and such Loan Parties Guarantor in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge The Borrower and each Guarantor acknowledges that, pursuant to and subject to the DIP terms of the Final Order, the Liens granted in favor of the Administrative Agent (on behalf of the Lenders Lenders) in all of such real property and leasehold instruments of such Loan Parties the Collateral shall be perfected without the recordation of any Uniform Commercial Code financing statements, notices of Lien or other instruments of mortgage or assignment. Such Loan Parties The Borrower and each Guarantor further agree that, upon agrees that (a) the request Administrative Agent shall have the rights and remedies set forth in Section 11 and the Final Order in respect of the Collateral and (b) if requested by the Administrative Agent, in the exercise Borrower and each of its business judgment, such Loan Parties the Guarantors shall enter into separate security agreements, pledge agreements and fee and leasehold mortgages in recordable form with respect to such properties Collateral on terms reasonably satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c)Administrative Agent.
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything Each Loan Party acknowledges and agrees that, subject to the contrary herein, not more than 65% terms of the voting equity Final Order, the Prepetition Secured Parties shall receive (a) as adequate protection for, and to the extent of, any diminution in the value of the Prepetition Secured Parties’ respective interests in their collateral whether resulting from the imposition of any CFC the automatic stay, the priming described in Section 2.20(a) above, the use of the Prepetition Secured Parties’ cash collateral or the use, sale, lease, depreciation, decline in market price or other diminution in value of the Prepetition Secured Parties’ collateral (i) a Subsidiary Superpriority Claim under Section 507(b) of the Bankruptcy Code junior only the Carve Out and to the Superpriority Claim granted to the Administrative Agent and the Lenders; and (ii) a CFC shall be pledged replacement Lien on the Collateral subject and subordinate to the Carve Out having a priority immediately junior to the priming and other Liens granted in favor of the Administrative Agent and the Lenders hereunder and under the other Loan Documents and the Final Order and to valid and perfected Liens which are senior (after giving effect to the Final Order) to the Liens granted to the Administrative Agent and the Lenders pursuant to the Final Order and (b) as further adequate protection, (i) the payment on a current basis of the reasonable fees and expenses (including, but not limited to, the reasonable fees and disbursements of counsel or financial advisors or third-party consultants incurred by the Prepetition Agent (including any Lender or the Agentunpaid prepetition fees and expenses) and (ii) financial and other reporting information in accordance with this Agreement.
Appears in 2 contracts
Samples: Credit and Guarantee Agreement (Lear Corp), Credit and Guarantee Agreement (Lear Corp)
Priority and Liens. (a) Subject to Section 2.20(c)The Debtors hereby covenant, each of the Loan Parties hereby covenants represent and agrees warrant that, upon the entry of the DIP Interim Order (and the Final Order, its obligations as applicable), the Obligations of the Debtors hereunder and under the other Loan Documents: , and the obligations of the Debtors pursuant to Article X,
(i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesClaims, subject to any limitations set forth in the DIP Order; (ii) 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 Collateral that is subject otherwise not encumbered by a valid, perfected and non-avoidable Lien as of the Petition Date or a valid Lien perfected (but not granted) thereafter to the terms extent such post-Petition Date perfection in respect of a pre-Petition Date claim is expressly permitted under the Intercreditor Agreement Bankruptcy Code, excluding claims and DIP Order) on all causes of the property of such Loan Partiesaction under Sections 502(d), whether now existing or hereafter acquired544, that is not subject to valid545, perfected547, non-voidable liens in existence at the time of commencement of the Cases or to valid548, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) 549 and 550 of the Bankruptcy Code (limitedit being understood that, in the case of voting equity interests of CFC’snotwithstanding such exclusion, 65% upon entry of the voting equity interestsFinal Order, to the extent approved by the Bankruptcy Court, such Lien shall attach to any proceeds thereof); , (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, Collateral that is subject to (A) valid, perfected and non-voidable avoidable Liens (other than to secure the Debtors’ Prepetition Obligations) in existence at on the time of the commencement of the Cases Petition Date or that is subject to valid Liens perfected (but not granted) thereafter to the extent such post-Petition Date perfection in existence at the time respect of the commencement of the Cases that are perfected subsequent to such commencement as a pre- Petition Date claim is expressly permitted by Section 546(b) of under the Bankruptcy Code and (B) other than certain property that is subject to the existing Liens that secure obligations as provided in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); ) below, post-Petition Date Liens permitted hereunder, and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on upon all of the property of such Loan Parties that is subject to the existing liens which secure the Existing Second Lien Debt (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the 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, subject in each case to the Carve-Out and as set forth in the DIP Order and the Intercreditor Agreement.
(a) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.Collateral
Appears in 2 contracts
Samples: Credit and Guarantee Agreement, Credit and Guarantee Agreement
Priority and Liens. (a) Subject to Section 2.20(c), The Borrower and each of the Loan Parties Guarantors hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Order, its obligations hereunder and under the Loan Documents: Interim Order (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, the Obligations of the Borrower and the Guarantors hereunder and under the Loan Documents and in respect of Indebtedness permitted by Section 6.03(vi) shall at all times constitute an allowed Superpriority Claim administrative expense claims in the CasesCases having priority over all administrative expenses of the kind specified in Sections 503(b) or 507(b) of the Bankruptcy Code, subject to any limitations set forth in the DIP Order; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, the Obligations of the Borrower and the Guarantors hereunder and under the Loan Documents and in respect of Indebtedness permitted by Section 6.03(vi) shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (that is subject to on all cash maintained in the terms Letter of Credit Account and any direct investments of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Partiesfunds contained therein, whether now existing or hereafter acquired, 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, the Obligations of the Borrower and the Guarantors hereunder and under the Loan Documents and in respect of Indebtedness permitted by Section 6.03(vi) shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, the Borrower and the Guarantors (other than the property that is subject to valid, perfected and non-voidable existing Liens in existence at that presently secure the time obligations of the commencement Borrower and the Guarantors under the Existing Agreement, as to which the Lien in favor of the Cases or Agent and the Banks will be as described in clause (iv) of this sentence) that is subject to valid and perfected Liens in existence at on the time of the commencement of the Cases that are perfected subsequent Filing Date, junior to such commencement as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debtvalid and perfected Liens, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, the Obligations of the Borrower and the Guarantors hereunder and under the Loan Documents and in respect of Indebtedness permitted by Section 6.03(vi) shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on all property of the Borrower and the Guarantors (including without limitation, accounts receivable, inventory, equipment, property, interests in leaseholds, intellectual property and the capital stock of such Loan Parties all direct or indirect Subsidiaries of the Borrower and the proceeds thereof) that is subject to the existing liens which Liens that presently secure the Borrower's and the Guarantors' pre-petition Indebtedness under the Existing Second Lien Debt (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by Agreement and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases Filing Date to provide adequate protection Liens in respect of any the Existing Agreement, subject only to (x) in the event of the Primed Liensoccurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both, the payment of allowed and unpaid professional fees and disbursements incurred by the Borrower, the Guarantors and any statutory committees appointed in the Cases in an aggregate amount not in excess of $2,500,000 and (y) the payment of unpaid fees pursuant to 28 U.S.C. ss. 1930 (collectively, the "Carve-Out"), provided that following the Termination Date amounts in the Letter of Credit Account shall not be subject in each case to the Carve-Out and Out. The Banks agree that so long as set forth in no Event of Default or event which with the DIP Order giving of notice or lapse of time or both would constitute an Event of Default shall have occurred, the Borrower and the Intercreditor AgreementGuarantors shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. ss. 330 and 11 U.S.C. ss. 331, as the same may be due and payable, and the same shall not reduce the Carve-Out.
(ab) As to all real property the title to which is held by a Loan Party (other than the Borrower or any Loan Party that is not a Debtor) of the Guarantors, or the possession of which is held by the Borrower or any such Loan Party of the Guarantors pursuant to leasehold interest, such Loan Parties and which secures the obligations under the Existing Agreement, the Borrower and each Guarantor hereby assign assigns and convey conveys as security, grant grants a security interest in, hypothecatehypothecates, mortgagemortgages, pledge pledges and set sets over unto the Agent on behalf of the Lenders Banks all of the right, title and interest of the Borrower and such Loan Parties Guarantor in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of the Borrower and such Loan Parties Guarantor in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge The Borrower and each Guarantor acknowledges that, pursuant to the DIP OrderOrders, the Liens in favor of the Agent on behalf of the Lenders Banks in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties The Borrower and each Guarantor further agree agrees that, upon the request of the Agent, in the exercise of its business judgment, Borrower and such Loan Parties Guarantor shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms reasonably satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Brunos Inc)
Priority and Liens. (a) Subject to the limitations and exclusions set forth in Section 2.20(c)9.01(e)(iii) hereof, each of the Loan Parties Borrower and each Guarantor hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Interim Order, its obligations the Obligations of the Borrower and such Guarantor hereunder and under the Loan Documents: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (ii) 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 unencumbered tangible and intangible property of the Borrower and such Guarantor and on all cash maintained in the L/C Cash Collateral Account and any investments of the funds contained therein, including any such property that is subject to valid and perfected Liens in existence on the terms Petition Date, which Liens are thereafter released or otherwise extinguished in connection with the satisfaction of the Intercreditor Agreement and DIP Order) on all of the property of obligations secured by such Loan Parties, whether now existing or hereafter acquired, 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 Liens (excluding any avoidance actions under the Bankruptcy Code (limited, in but including the case of voting equity interests of CFC’s, 65% of the voting equity interestsproceeds therefrom)); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all real, personal and mixed property of the Borrower and such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases or Guarantor that is subject to valid Liens and perfected liens in existence at on the time of the commencement of the Cases that are perfected subsequent Petition Date, junior to such commencement as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv))valid and perfected Liens; and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code), shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on upon all tangible and intangible property of the property of Borrower and such Loan Parties Guarantor that is subject to the existing liens which presently secure the Existing Second Lien Debt (collectivelyPre-Petition Secured Indebtedness, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the 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, subject subordinated in each case with respect to clauses (i) through (iv) above, only to the Carve-Out. Except for the Carve-Out having priority over the Obligations, the Superpriority Claims shall at all times be senior to the rights of the Borrower, each Guarantor, any chapter 11 trustee and, subject to section 726 of the Bankruptcy Code, any chapter 7 trustee, or any other creditor (including, without limitation, post-petition counterparties and as set forth other post-petition creditors) in the DIP Order and Cases or any subsequent proceedings under the Intercreditor Agreement.
(a) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverablesBankruptcy Code, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities any chapter 7 cases if any of the Liens described in this Section 2.20 with respect Borrower's or the Guarantor's cases are converted to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities cases under chapter 7 of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the AgentBankruptcy Code.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (Dana Corp)
Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties hereby covenants and agrees that, that upon the entry of the DIP Interim Order (and, when applicable, the Final Order), its obligations hereunder and under the other Loan Documents: Documents and subject in all respects to the Carve-Out:
(i) pursuant to Section 364(c)(1section 364(d)(1) of the Bankruptcy Code, shall at be secured by a perfected first priority priming security interest and lien on all times constitute an allowed Superpriority Claim in prepetition and postpetition assets constituting the CasesABL Priority Collateral of any Debtor (collectively, subject the “Priming Liens”; provided that the Priming Liens shall not prime, and shall be junior to, valid, perfected, nonavoidable liens that are senior to any limitations set forth in the DIP Order; (ii) pursuant liens securing the obligations outstanding under the Existing ABL Credit Agreement as of the Petition Date or that were perfected subsequent to Section 364(c)(2the Petition Date as permitted by section 546(b) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien );
(that is ii) subject to the terms of the Intercreditor Agreement and DIP Orderclause (i) on all of the property of such Loan Partiesabove, whether now existing or hereafter acquired, 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon junior security interest and lien on all property of prepetition and postpetition assets constituting the Notes Priority Collateral to the extent such Loan Parties, whether now existing or hereafter acquired, that is assets are subject to valid, perfected and non-voidable unavoidable Liens in favor of third parties that were in existence at immediately prior to the time of the commencement of the Cases Petition Date, or that is subject to valid and unavoidable Liens in favor of third parties that were in existence at immediately prior to the time of the commencement of the Cases Petition Date that are were perfected subsequent to such commencement the Petition Date as permitted by Section section 546(b) of the Bankruptcy Code Code, subject as to priority to such Liens in favor of such third parties; and
(other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iviii) pursuant to Section 364(d)(1section 364(c)(1) of the Bankruptcy Code, shall be secured by a validconstitute Superpriority Claims in the Cases, binding, continuing, enforceable perfected first priority senior priming Lien on all which claims in respect of the property DIP ABL Revolver and the Last Out Term Loan Facility shall be pari passu and shall have full recourse against all assets of such Loan Parties that is the Debtors (including the Unencumbered Foreign Equity) including, subject to the existing Final Order, proceeds of Avoidance Actions and subject, in each case, to any liens which secure the Existing Second Lien Debt (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (or claims that are senior to the extent set forth in Liens and claims securing the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the 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, subject in each case to the Carve-Out and as set forth in the DIP Order and the Intercreditor Agreement.
(a) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c)Facilities.
(b) The relative priorities of the Liens described in this Section 2.20 2.24 with respect to the DIP Collateral shall be as set forth in the DIP Interim Order (and, when entered, the Final Order) and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02other Loan Documents. All of the Liens described in this SectionSection 2.24 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 of control of the Administrative Agent of, or over, any DIP Collateral, as set forth in the DIP Orders.
(c) Notwithstanding anything For the avoidance of doubt, (i) the DIP Collateral shall not include, and the DIP Liens shall not encumber, prepetition or postpetition assets that would not otherwise constitute ABL Priority Collateral or Notes Priority Collateral and (ii) the DIP Liens are junior in all respects to the contrary hereinCarve-Out with respect to the DIP Collateral. The Obligations under the DIP Facilities will at all times, not more than 65% of and subject in all respects to the voting equity interests of any CFC or a Subsidiary of a CFC shall Carve-Out, (i) be pledged secured by the DIP Liens (as defined in favor of any Lender the Interim Order or the AgentFinal Order, as applicable) on the Collateral with the priorities set forth in the Interim Order or the Final Order, as applicable, and (ii) constitute Superpriority Claims.
Appears in 1 contract
Samples: Senior Secured Priming and Superpriority Debtor in Possession Credit Agreement (Claires Stores Inc)
Priority and Liens. (a) Subject to Section 2.20(c)The Borrowers hereby covenant, represent and warrant that, upon entry of the Interim Order or Final Order, as applicable, the Obligations of each of the Loan Parties hereby covenants and agrees that, upon the entry of the DIP Order, its obligations Borrowers hereunder and under the other Loan Documents: , (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesSuper-Priority Claims, subject to any limitations set forth in the DIP Order; (ii) 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 (that is subject to the terms of the Intercreditor Agreement and DIP Order) on all of the unencumbered Collateral (including without limitation, (x) real and tangible personal property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, non-voidable liens in existence at the time of commencement of the Cases or Liens which may be avoided pursuant 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 Code, but only to the extent so avoided and (limited, y) to the extent set forth in the case of voting equity interests of CFC’sFinal Order, 65% of any avoidance actions arising under the voting equity interestsBankruptcy Code); , (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property Collateral (other than the Primed Assets, as to which the Lien in favor of such Loan Parties, whether now existing or hereafter acquired, the DIP Lenders will be as described in clause (iv) of this sentence) that is subject to valida Permitted Lien, including without limitation, valid and perfected and non-voidable Liens in existence at on the time of the commencement of the Cases Petition Date 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(but not granted) of the Bankruptcy Code (other than certain property that is subject thereafter to the existing Liens that secure obligations extent such post-Petition Date perfection in respect of a pre-Petition Date claim is expressly permitted under the Existing Second Lien DebtBankruptcy Code, which liens junior to such Permitted Liens, provided that the Liens granted in favor of the DIP Lenders shall be primed by senior to any Permitted Lien which is expressly stated herein to be junior to the liens described Liens in favor of the following clause (iv)); DIP Lenders, and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on all of the property of such Loan Parties that is subject to the existing liens which secure the Existing Second Lien Debt (collectivelyPrimed Assets, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate in each case with respect to subclauses (to i) through (iv) above, only to, following the extent set forth in occurrence and during the DIP Ordercontinuance of an Event of Default, (x) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor such valid and enforceable liens of record as of the Agent shall also prime any Liens granted after date of the commencement of the Chapter 11 Cases as are listed on Schedule P-2, (y) the liens and replacement liens granted to provide adequate protection Liens in respect of any of the Primed Liens, subject in each case to Pre-Petition Senior Lenders and (z) the Carve-Out Out. Without prejudice to any DIP Lender’s right to object to the interim or final allowance of any compensation or reimbursement of expenses, and as set forth in subject to the Agreed Budget, the DIP Order Lenders agree that so long as no Event of Default shall have occurred and be continuing, the Borrowers shall be permitted to pay compensation and reimbursement of expenses allowed and payable under Sections 330 and 331 of the Bankruptcy Code and pursuant to any order of the Bankruptcy Court, as the same may be due and payable, and the Intercreditor Agreementamounts so paid shall not reduce the Carve-Out.
(ab) As to all Collateral, including without limitation, all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) the Borrowers or the possession of which is held by any such Loan Party the Borrowers pursuant to leasehold interestinterests, each of the Borrowers, subject to (x) such Loan Parties valid and enforceable liens of record as of the date of the commencement of the Chapter 11 Cases as are listed on Schedule P-2, (y) the liens and replacement liens granted to the Pre-Petition Senior Lenders and (z) the Carve-Out, hereby assign assigns and convey conveys as security, grant grants a security interest in, hypothecatehypothecates, mortgagemortgages, pledge pledges and set sets over unto the Agent on behalf of the Lenders DIP Lenders, all of the right, title and interest of such Loan Parties Borrower in all of such Collateral, including without limitation, all owned real property and in all such leasehold interestsinterest, together in each case with all of the right, title and interest of such Loan Parties Borrower in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge Each of the Borrowers acknowledges that, pursuant to the DIP Interim Order or the Final Order, as applicable, the Liens granted in favor of the Agent on behalf of the DIP Lenders in all of such real property and leasehold instruments of such Loan Parties the Collateral shall be perfected without the recordation of any UCC financing statements, notice of Lien or other instruments of mortgage mortgage, deed of trust or assignment. Such Loan Parties further agree that, upon the request Each of the AgentBorrowers further agrees that if requested by the Required DIP Lenders, in the exercise of its business judgment, such Loan Parties Borrowers shall enter into separate security agreements, pledge agreements and fee and leasehold mortgages in recordable form with respect to such properties Collateral on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c)Required DIP Lenders.
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.
Appears in 1 contract
Priority and Liens. (a) Subject to Section 2.20(c)The Borrowers hereby covenant, each of the Loan Parties hereby covenants represent and agrees warrant that, upon the entry of the DIP Interim Order, its obligations the Obligations of the Borrowers hereunder and under the Loan Documents: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (ii) 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 unencumbered property of the Borrowers (other than interests of the Borrowers in the entities listed on Schedule 2.23) and on all cash maintained in the Letter of Credit Account and ------------- any direct investments of the funds contained therein, provided that is amounts in the Letter of Credit Account shall not be subject to the terms of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests)Carve- Out; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon the Parent's inventory and all other property of such Loan Parties, whether now existing or hereafter acquired, the Borrowers that is subject to valid, valid and perfected and non-voidable Liens in existence at on the time of the commencement of the Cases Filing Date or that is subject to valid Liens in existence at on the time of the commencement of the Cases Filing Date that are perfected subsequent to such commencement the Filing Date as permitted by Section 546(b) of the Bankruptcy Code (other than certain property property, other than the Parent's inventory, that is subject to the existing Liens that secure obligations in respect of under the Existing Second Lien DebtCredit Agreement or are otherwise not permitted to be primed pursuant to the Interim Order or the Final Order, as the case may be, which liens Liens shall be primed by the liens Liens to be granted to the Administrative Agent described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien (collectively, the "Priming Liens") on all of the property of the ------------- Borrowers and the Guarantors (including, without limitation, inventory, accounts receivable, rights under license agreements, property, plant and equipment, interests in leaseholds and capital stock of Subsidiaries of the Parent, limited, in the case of an entity that is a controlled foreign corporation under Section 957 of the Code, to 66% of the voting stock of such Loan Parties entity) that is subject to any existing Liens (the existing liens "Primed Liens"), which ------------ secure the Borrowers' prepetition Indebtedness under the Existing Second Lien Debt Credit Agreement (collectively, but subject to Permitted Liens in existence on the “Primed Liens”Filing Date to which the Priming Liens are subject or become subject subsequent to the Filing Date as permitted by Section 546(b) of the Bankruptcy Code), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Administrative Agent, which senior priming Priming Liens in favor of the Administrative Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens but shall not prime Liens, if any, to the extent such Liens secure obligations listed as secured obligations on Schedule 6.3, subject in each case only to the Carve-Out and as set forth (x) in the DIP Order and the Intercreditor Agreement.
(a) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf ------------ event of the Lenders all occurrence and during the continuance of the right, title and interest an Event of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP OrderDefault, the Liens in favor payment of the Agent on behalf of the Lenders in all of such real property allowed and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee unpaid professional fees and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.disbursements incurred by the
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Bethlehem Steel Corp /De/)
Priority and Liens. (a) Subject to Section 2.20(c), The Borrower and each of the Loan Parties Guarantors hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Interim Order, its obligations the Obligations of the Borrower and the Guarantors hereunder and under the Loan Documents: Documents and in respect of Indebtedness permitted by Section 6.03(iv): (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (ii) 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 (that is subject to the terms on all unencumbered property of the Intercreditor Agreement Borrower and DIP Order) the Guarantors and on all cash maintained in the Letter of Credit Account and any investments of the property of such Loan Parties, whether now existing or hereafter acquired, 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests)funds contained therein; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, the Borrower and the Guarantors (other than the property that is subject to valid, perfected and non-voidable existing Liens in existence at that presently secure the time obligations of the commencement Borrower under the Pre-Petition Credit Agreement, as to which the Lien in favor of the Cases or Agent and the DIP Lenders will be as described in clause (iv) of this sentence) that is subject to valid and perfected liens in existence on the Petition Date or to valid Liens in existence at on the time of the commencement of the Cases Petition Date that are perfected subsequent to such commencement the Petition Date as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject or to the existing Liens that secure obligations in respect of the Existing Second Lien DebtPermitted Liens, which liens shall be primed by the liens described in the following clause (iv))junior to such valid and perfected Liens; and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on all property of the property Borrower and the Guarantors (including without limitation, accounts receivable, contracts, documents, inventory, equipment, general intangibles, instruments, interests in leaseholds, intellectual property, rights under license agreements and the capital stock of such Loan Parties all direct and indirect Subsidiaries of the Borrower and, in each case, the proceeds thereof) that is subject to the existing liens which that presently secure the Existing Second Lien Debt Borrower's pre-petition Indebtedness under the Pre-Petition Credit Agreement (collectively, but subject to any Liens in existence on the “Primed Liens”), all of Petition Date to which Primed the Liens shall be being primed by and made hereby are subject and subordinate to (or become subject subsequent to the extent set forth in the DIP OrderPetition Date as permitted by Section 546(b) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime Bankruptcy Code) and any Liens granted after the commencement of the Cases Petition Date to provide adequate protection Liens in respect of any the Pre-Petition Credit Agreement, subject only to (x) in the event of the Primed Liensoccurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both, the payment of allowed and unpaid professional fees and disbursements incurred by the Borrower, the Guarantors and any statutory committees appointed in the Cases in an aggregate amount not in excess of $1,500,000 (plus all unpaid professional fees and disbursements incurred prior to the occurrence of an Event of Default to the extent allowed by the Bankruptcy Court)(2) and (y) the payment of unpaid fees pursuant to 28 U.S.C. Section 1930 and to the Clerk of the Bankruptcy Court (collectively, the "CARVE-OUT"), PROVIDED that amounts in the Letter of Credit Account and any investment of the funds contained therein shall not be subject in each case to the Carve-Out Out, and PROVIDED FURTHER, that, except as set forth otherwise provided in the DIP Order Orders, no portion of the Carve-Out shall be utilized for the ------------------------ (2) Note: Borrowing Base will reflect deduction for these amounts. payment of professional fees and disbursements incurred in connection with any investigation of or challenge to the amount, extent, priority, validity, perfection or enforcement of the indebtedness of the Borrower and the Intercreditor AgreementGuarantors owing to the Pre-Petition Lenders or to the collateral securing such indebtedness, and PROVIDED FURTHER that, as to proceeds of causes of action to recover preferences, fraudulent transfers or other avoidance claims under chapter 5 of the Bankruptcy Code, the Agent and the DIP Lenders shall have been granted an administrative claim pursuant to Section 503(b) of the Bankruptcy Code. The Superpriority Claims shall at all times be senior to the rights of the Borrower, the Guarantors, any chapter 11 trustee and, subject to section 726 of the Bankruptcy Code, any chapter 7 trustee, or any other creditor (including, without limitation, post-petition vendors and other post-petition creditors) in the Cases or any subsequent proceedings under the Bankruptcy Code, including, without limitation, any chapter 7 cases if any of the Borrower's or the Guarantors' cases are converted to cases under chapter 7 of the Bankruptcy Code, subject only to the Carve-Out. The DIP Lenders agree that so long as no Event of Default or event which with the giving of notice or lapse of time or both would constitute an Event of Default shall have occurred, the Borrower and the Guarantors shall be permitted to pay compensation and reimbursement of expenses incurred in the ordinary course of business, or professional fees allowed and payable under 11 U.S.C. Section 330 and 11 U.S.C. Section 331 or otherwise permitted to be paid by Court order, as the same may be due and payable, and any compensation and expenses previously paid, or accrued but unpaid, prior to the occurrence of such Event of Default shall not reduce the Carve-Out.
(ab) As to all real property the title to which is held by a Loan Party (other than the Borrower or any Loan Party that is not a Debtor) of the Guarantors, or the possession of which is held by the Borrower or any such Loan Party of the Guarantors pursuant to leasehold interest, such Loan Parties and which secures the obligations under the Pre-Petition Credit Agreement, the Borrower and each Guarantor hereby assign assigns and convey conveys as security, grant grants a security interest in, hypothecatehypothecates, mortgagemortgages, pledge pledges and set sets over unto the Agent on behalf of the DIP Lenders all of the right, title and interest of the Borrower and such Loan Parties Guarantor in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of the Borrower and such Loan Parties Guarantor in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge The Borrower and each Guarantor acknowledges that, pursuant to the DIP OrderOrders, the Liens in favor of the Agent on behalf of the DIP Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties The Borrower and each Guarantor further agree that, upon the request of the Agent, in the exercise of its business judgment, Borrower and such Loan Parties Guarantor shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, take all steps necessary to the extent applicable, a notification to the record and perfect such mortgages and real property liens under applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c)non-bankruptcy law.
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Us Office Products Co)
Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties (other than any Loan Party that is not a Debtor) hereby covenants and agrees that, that upon the entry of an Interim Order (and when applicable, the DIP Final Order, ) its obligations hereunder and under the Loan DocumentsDocuments and under the US Secured Agreements: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesCases (but excluding a claim on Avoidance Actions and, subject prior to any limitations set forth in entry of the DIP Final Order, the proceeds of Avoidance Actions); (ii) 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 (that is subject to the terms of the Intercreditor Agreement and DIP OrderAgreement) on all of the property of such US Loan Parties, whether now existing or hereafter acquired, 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 (limited, in the case of voting equity interests of CFC’s, to 65% of the such voting equity interests), and on all of its cash maintained in the L/C Cash Deposit Account and any investment of the funds contained therein, provided that amounts in the L/C Cash Deposit Account shall not be subject to the Carve-Out; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of such US Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable 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 (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1364(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 property of such US Loan Parties that is subject to the existing liens (the “Primed Liens”) which secure the Existing Second Lien Debt (collectively, the “Primed Liens”)Debt, all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the 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 LiensLiens (i) through (iv) above, subject in each case to the Carve-Out and as set forth in the DIP Order and the Intercreditor AgreementOrders.
(ab) As to all real property the title to which is held by a US Loan Party (other than any US Loan Party that is not a Debtor) or the possession of which is held by any such US Loan Party pursuant to leasehold interest, such US Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such US Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such US Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such US Loan Parties acknowledge that, pursuant to the DIP Interim Order (and, when entered, the Final Order), the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such US Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such US Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such US Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(bc) The relative priorities of the Liens described in this Section 2.20 2.24 with respect to the Revolving Credit Facility Collateral of the Debtors and the Term Facility Collateral of the Debtors shall be as set forth in the DIP Interim Order (and, when entered, the Final Order) and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.Intercreditor
Appears in 1 contract
Samples: Debt Agreement (Eastman Kodak Co)
Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties Borrowers hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Final Order, its obligations the Obligations of the Borrowers hereunder and under the Loan Documents: Documents and in respect of Indebtedness permitted by Section 6.3(v): (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (ii) 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 unencumbered property of the Borrowers and on all cash maintained in the Letter of Credit Account and any direct investments of the funds contained therein, provided that is following the Termination Date, amounts in the Letter of Credit Account shall not be subject to the terms of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, nonCarve-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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests)Out; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, the Borrowers that is subject to valid, valid and perfected and non-voidable Liens in existence at on the time of the commencement of the Cases Filing Date or that is subject to valid Liens in existence at on the time of the commencement of the Cases Filing Date that are perfected subsequent to such commencement the Filing Date as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv))Code; and in addition, (iv) pursuant to Section 364(d)(1) of the Bankruptcy CodeCode and other than as expressly set forth in the Final Order, shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on all of the property of such Loan Parties the Borrowers (including, without limitation, inventory, receivables, rights under license agreements, and property, plant and equipment) that is subject to the existing liens which secure (x) the Existing Second Lien Debt obligations of the Parent Borrower and certain of the Subsidiary Borrowers under or in connection with the Pre-Petition Credit Agreement, and (y) other obligations or indebtedness of the Borrowers pursuant to other agreements in an aggregate amount in excess of $2,500,000 (collectively, the “"Primed Liens”"), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Administrative Agent, which senior priming Liens in favor of the Administrative Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens but shall not prime Liens, if any, to the extent such Liens secure obligations (other than obligations under the Pre-Petition Credit Agreement) in an aggregate amount less than or equal to $2,500,000; subject in each case only to (x) in the event of the occurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both (a "Default"), the payment of allowed and unpaid professional fees and disbursements incurred by the Borrowers and any statutory committees appointed in the Cases in an aggregate amount not in excess of $3,000,000 (plus the amount set forth in the most recent Borrowing Base Certificate delivered by the Borrowers to the Administrative Agent of then unpaid professional fees and expenses incurred prior to the occurrence of a Default or an Event of Default to the extent that such unpaid fees and expenses are subsequently allowed by the Bankruptcy Court), and (y) the payment of fees pursuant to 28 U.S.C. ss. 1930 and to the Clerk of the Bankruptcy Court (collectively, the "Carve-Out"), provided that no portion of the Carve-Out shall be utilized for the payment of professional fees and disbursements incurred in connection with any challenge to the amount, extent, priority, validity, perfection or enforcement of the Indebtedness of the Borrowers owed with respect to the parties primed by the priming Liens or to the collateral securing such Indebtedness or any other action against such parties. Amounts in the Letter of Credit Account shall not be subject to the Carve-Out Out. By execution hereof, the Borrowers hereby consent to the priming Liens referenced in clause (iv) above. Notwithstanding the foregoing, so long as no Default or Event of Default shall have occurred and be continuing, the Borrowers shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. ss.ss. 328, 330 and 331, as the same may be due and payable, and any xxxxensation and expenses previously paid, or accrued but unpaid, prior to the occurrence of such Default or Event of Default shall not reduce the Carve-Out.
(b) Subject to the priorities set forth in the DIP Order and the Intercreditor Agreement.
subsection (a) As above and to the Carve-Out, as to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) Borrower, or the possession of which is held by any such Loan Party a Borrower pursuant to leasehold interest, such Loan Parties the Parent Borrower and each of the Subsidiary Borrowers hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Administrative Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties the Borrowers, in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties the Borrowers in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties The Parent Borrower and each of the Subsidiary Borrowers acknowledge that, pursuant to the DIP Interim Order (or the Final Order, as applicable), the Liens in favor of the Administrative Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties the Borrowers shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties The Parent Borrower and each of the Subsidiary Borrowers further agree that, upon the request of the Administrative Agent, in the exercise of its business judgment, such Loan Parties the Parent Borrower and each of the Subsidiary Borrowers shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c)Administrative Agent.
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything To the extent any Borrower makes aggregate payments to the contrary herein, not more than 65% Lenders in excess of the voting equity interests aggregate amount of any CFC or a Subsidiary all Loans received by such Borrower from the Lenders after the commencement of a CFC the Cases, then such Borrower, after the payment in full of all obligations of the Borrowers in respect of the Commitment and the termination of the Commitment, shall be pledged entitled to a claim under Section 364(c)(1) of the Bankruptcy Code against each other Borrower, in favor such amount as may be determined by the Bankruptcy Court taking into account the relative benefits received by each such person, and such claims shall be deemed to be subordinate and junior in all respects to the superpriority claims of any Lender or the AgentLenders and the superpriority claims granted as adequate protection to the Primed Parties.
Appears in 1 contract
Samples: Revolving Credit Agreement (Interstate Bakeries Corp/De/)
Priority and Liens. (a) Subject to Section 2.20(c), each of the Loan The Credit Parties hereby covenants covenant, represent and agrees warrant that, upon the entry of the DIP Interim Order (and the Final Order, its obligations as applicable), the Obligations of the Credit Parties hereunder and under the Loan other Credit Documents: , (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesClaims, subject to any limitations set forth in the DIP Order; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable enforceable, fully-perfected first priority Lien (on the Unencumbered Property; provided, that is the Unencumbered Property shall not include the Avoidance Actions, but subject to the terms entry of the Intercreditor Agreement and DIP Final Order) on all , Unencumbered Property shall include any proceeds or property recovered in respect of the property of such Loan Partiesany successful Avoidance Actions, whether now existing or hereafter acquired, 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable enforceable, fully-perfected second junior Lien upon on all tangible and intangible prepetition and postpetition property of the Credit Parties (other than the property described in clause (iv) below, as to which the Liens granted to the Administrative Agent for the benefit of the Secured Creditors will have the priority as described in such Loan Partiesclause), whether now existing or hereafter acquired, that is subject to validthe Non-Primed Liens, perfected and non-voidable which Liens in existence at granted to the time Administrative Agent, for the benefit 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 (other than certain property that is subject Secured Creditors, shall be junior to the existing Liens that secure obligations in respect of the Existing Second Lien DebtNon-Primed Liens, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable enforceable, fully-perfected first priority priority, senior priming Lien on the Prepetition Collateral senior in all respects to the Liens on the Prepetition Collateral of the property of such Loan Prepetition Secured Parties that is subject to the existing liens which secure the Existing Second Lien Debt (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime including any Liens granted after the commencement of the Cases Petition Date to provide adequate protection Liens in respect of the Prepetition Obligations owed to the Prepetition Secured Parties), but junior to any of Non-Primed Liens on the Primed LiensPrepetition Collateral, subject and subordinate in each case with respect to subclauses (i) through (iv) above, only to the Carve-Out, provided that following the Maturity Date after giving effect to Section 15, amounts cash collateralizing any Letter of Credit Outstandings shall not be subject to the Carve-Out. For purposes hereof, the “Carve-Out” shall mean (A) any fees payable to the Clerk of the Bankruptcy Court and to the Office of the United States Trustee pursuant to section 1930(a) of title 28 of the United States Code and (B) up to $2,500,000 of allowed fees, expenses and disbursements of professionals retained by order of the Bankruptcy Court, incurred after the occurrence of a Carve-Out Event (as defined below), plus all unpaid professional fees, expenses and disbursements allowed by the Bankruptcy Court that were incurred prior to the occurrence of a Carve-Out Event (regardless of when such fees, expenses and disbursements become allowed by order of the Bankruptcy Court). For the purposes hereof, a “Carve-Out Event” shall occur upon the occurrence and during the continuance of an Event of Default with respect to which the Administrative Agent provides notice thereof (a “Carve-Out Notice”) pursuant to the terms and conditions of the Orders, as set forth applicable. So long as no Carve-Out Event shall have occurred and be continuing, the Carve-Out shall not be reduced by the payment of fees, expenses and disbursements allowed by the Bankruptcy Court and payable under Sections 328, 330 and 331 of the Bankruptcy Code (which allowed fees, expenses and disbursements shall be paid in accordance with, and subject to, the DIP Order Budget), and the Intercreditor Agreement.
(a) As to all real property Carve-Out shall not be reduced by the title to which is held by a Loan Party (other than application of any Loan Party that is not a Debtor) or the possession of which is held prepetition retainers by any such Loan Party pursuant to leasehold interestprofessionals. Upon the delivery of a Carve-Out Notice, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf right of the Lenders all Debtors to pay professional fees incurred under clause (B) above without reduction of the rightCarve-Out in clause (B) above shall terminate; provided that the Carve-Out shall not be available to pay any professional fees and expenses incurred in connection with the initiation or prosecution of any claims, title and interest causes of such Loan Parties in all of such owned real property and in all such leasehold interestsaction, together in each case with all of adversary proceedings or other litigation against the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP OrderAdministrative Agent, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out LoansLenders, the First Lien Last OutNew Money Loans and Prepetition Lenders, the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender Prepetition Agent or the Prepetition Collateral Agent.
Appears in 1 contract
Priority and Liens. (a) Subject to Section 2.20(c)The Borrowers hereby covenant, each represent and warrant that the Obligations of the Loan Parties hereby covenants and agrees that, upon the entry of the DIP Order, its obligations Borrowers hereunder and under the Loan Documents: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (ii) 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 (that is subject to the terms of the Intercreditor Agreement and DIP OrderAgreement) on all property of the property of such Loan PartiesBorrowers, whether now existing or hereafter acquired, 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 (limitedCode, and on all cash maintained in the case Letter of voting equity interests of CFC’s, 65% Credit Account and any investment of the voting equity interests)funds contained therein, provided that amounts in the Letter of Credit Account shall not be subject to the Carve-Out; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of such Loan Partiesthe Borrowers, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases (including the perfected liens on the stock of certain Subsidiaries of the Parent (the “Stock Liens”) in favor of (x) the trustees for the holders of Indebtedness of the Parent under the Indentures, and (y) the holders of obligations under the Prepetition Credit Agreement and the Surety Bonds) or that is subject to valid Liens in existence 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 (other than certain property that is subject to the existing Liens that secure obligations in respect of under the Existing Second Lien DebtPrepetition Agreements, which liens shall be primed by the liens described in the following clause (iv)); and in addition, (iv) pursuant to Section 364(d)(1364(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 property of such Loan Parties the Borrowers that is subject to the existing liens which secure the Existing Second Lien Debt (collectively, the “Primed Liens”), it being understood that the Stock Liens shall not be primed or constitute part of the Primed Liens) which secure (A) on a first priority basis, the Tranche C Loans, and (B) on a second priority and pari passu basis, (x) approximately $1,650,000,000 of principal amount of indebtedness (plus related interest, fees, costs and charges) owed to the lenders under the Prepetition Credit Agreement, (y) the obligations under the collateral trust, security and/or pledge agreements executed in connection with the Prepetition Agreements and (z) the obligations of the Borrowers in connection with the Surety Bonds and (C) other prepetition obligations or indebtedness (of whatever nature or type) of the Borrowers in an aggregate amount in excess of $20,000,000, all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Administrative Agent, which senior priming Liens in favor of the Administrative Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens but shall not prime Liens, if any, to the extent such Liens secure prepetition obligations or indebtedness (other than obligations under the Prepetition Agreements) in an aggregate amount less than or equal to $20,000,000, subject in each case only to (A) in the event of the occurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both, the payment of accrued and unpaid professional fees and disbursements incurred by the Borrowers and any statutory committees appointed in the Cases, and allowed by the Bankruptcy Court, in an aggregate amount not in excess of $5,000,000 and (B) the payment of fees pursuant to 28 U.S.C. § 1930 and to the Clerk of the Bankruptcy Court (collectively, the “Carve-Out”), provided that no portion of the Carve-Out shall be utilized for the payment of professional fees and expenses incurred, directly or indirectly, in respect of, arising from or relating to, the initiation (other than investigation) or prosecution of any action for preferences, fraudulent conveyances, other avoidance power claims or any other claims or causes of action against the Administrative Agent, the Lenders, the Hedging Parties (as defined in the Approval Order), the administrative agent under either the Existing DIP Credit Agreement or the JPM DIP Credit Agreement, the Existing DIP Lenders, the JPM DIP Lenders, the administrative agent under the Prepetition Credit Agreement, the lenders party to the Prepetition Credit Agreement, the issuers of the Surety Bonds or the holders of the Tranche C Loans. Amounts in the Letter of Credit Account shall not be subject to the Carve-Out Out. By execution hereof, the Borrowers hereby consent to the priming Liens referenced in clause (iv) above. Notwithstanding the foregoing, so long as no Event of Default or event which with the giving of notice or lapse of time or both would constitute an Event of Default shall have occurred and be continuing, the Borrowers shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. § 330 and 11 U.S.C. § 331, as set forth the same may be due and payable, and any compensation and expenses previously paid, or accrued but unpaid, prior to the occurrence of such Event of Default shall not reduce the Carve-Out.
(b) To the extent a prepetition creditor has a lien on any prepetition intercompany unsecured claims between and among the Borrowers and no liens on any other assets of the Borrowers other than the stock of “Restricted Subsidiaries” (as defined in the DIP Order Indentures), such liens shall not be primed, provided, however, that no payments may be made on account of such prepetition claims and the Intercreditor liens of the prepetition creditors shall not extend to the collateral securing the Indebtedness created by this Agreement.
(ac) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) Borrower or the possession of which is held by any such Loan Party a Borrower pursuant to leasehold interest, such Loan Parties the Borrowers hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Administrative Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties the Borrowers in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties the Borrowers in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties The Borrowers acknowledge that, pursuant to the DIP Approval Order, the Liens in favor of the Administrative Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties the Borrowers shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties The Borrowers further agree that, upon the request of the Administrative Agent, in the exercise of its business judgment, such Loan Parties the Borrowers shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c)Administrative Agent.
(bd) The relative priorities To the extent any Borrower makes aggregate payments to the Lenders in excess of the Liens described aggregate amount of all Loans received by such Borrower from the Lenders after the commencement of the Cases, then such Borrower, after the payment in this full of all obligations of the Borrowers in respect of the Commitment and the termination of the Commitment, shall be entitled to a claim under Section 2.20 with respect 364(c)(1) of the Bankruptcy Code against each other Borrower, in such amount as may be determined by the Bankruptcy Court taking into account the relative benefits received by each such person, and such claims shall be deemed to be subordinate and junior in all respects to the Collateral shall be as set forth in superpriority claims of the DIP Order Lenders and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be superpriority claims granted as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything adequate protection to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the AgentPrimed Parties.
Appears in 1 contract
Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties Borrower and each Guarantor hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Interim Order, its obligations the Obligations of the Borrower and such Guarantor hereunder and under the Loan Documents: (i) pursuant to Section section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (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 Lien (on all unencumbered tangible and intangible property of the Borrower and such Guarantor and on all cash maintained in the L/C Cash Collateral Account and any investments of the funds contained therein, including any such property that is subject to valid and perfected Liens in existence on the terms Petition Date, which Liens are thereafter released or otherwise extinguished in connection with the satisfaction of the Intercreditor Agreement and DIP Order) on all of the property of obligations secured by such Loan Parties, whether now existing or hereafter acquired, 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 Liens (excluding any avoidance actions under the Bankruptcy Code (limited, in or the case of voting equity interests of CFC’s, 65% of the voting equity interestsproceeds therefrom); (iii) pursuant to Section section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all real, personal and mixed property of the Borrower and such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases or Guarantor that is subject to valid and perfected Liens in existence at on the time of the commencement of the Cases that are perfected subsequent Petition Date, junior to such commencement as permitted by Section 546(b) of the Bankruptcy Code valid and perfected Liens (other than certain property that is subject to Liens securing the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); Pre-Petition Secured Indebtedness) and (iv) pursuant to Section section 364(d)(1), shall be secured by a perfected priming Lien upon all tangible and intangible property of the Borrower and such Guarantor that presently secure the Pre-Petition Secured Indebtedness; provided that the foregoing shall be subject in all respects to the Carve-Out. Each of the Borrower and each Guarantor hereby covenants, represents and warrants that, upon entry of the Final Order, the Obligations of the Borrower and such Guarantor hereunder and 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 unencumbered tangible and intangible property of the Borrower and such Guarantor and on all cash maintained in the L/C Cash Collateral Account and any investments of the funds contained therein, including any such property that is subject to valid and perfected Liens in existence on the Petition Date, which Liens are thereafter released or otherwise extinguished in connection with the satisfaction of the obligations secured by such Liens (excluding any avoidance actions under the Bankruptcy Code (but including the proceeds therefrom)); (iii) pursuant to section 364(c)(3) of the Bankruptcy Code, shall be secured by a validperfected Lien upon all real, binding, continuing, enforceable perfected first priority senior priming Lien on all personal and mixed property of the property of Borrower and such Loan Parties Guarantor that is subject to valid and perfected Liens in existence on the existing liens which Petition Date, junior to such valid and perfected Liens (other than Liens securing the Unrolled Pre-Petition Secured Indebtedness), and (iv) pursuant to section 364(d)(1), shall be secured by a perfected priming Lien upon all tangible and intangible property of the Borrower and such Guarantor that secure the Existing Second Lien Debt (collectively, Unrolled Pre-Petition Secured Indebtedness; provided that the “Primed Liens”), all of which Primed Liens foregoing shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the 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, subject in each case all respects to the Carve-Out and as set forth in the DIP Order and the Intercreditor AgreementOut.
(a) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (Chemtura CORP)
Priority and Liens. (a) Subject to Section 2.20(c)The Borrowers hereby covenant, each of the Loan Parties hereby covenants represent and agrees warrant that, upon the entry of the DIP Interim Order, its obligations the Obligations of the Borrowers hereunder and under the Loan Documents: Documents and in respect of Indebtedness permitted by Section 6.3(v): (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (ii) 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 unencumbered property of the Borrowers and on all cash maintained in the Letter of Credit Account and any direct investments of the funds contained therein, provided that is following the Termination Date amounts in the Letter of Credit Account shall not be subject to the terms of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, nonCarve-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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests)Out; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, the Borrowers that is subject to valid, valid and perfected and non-voidable Permitted Liens in existence at on the time of the commencement of the Cases Filing Date or that is subject to valid Permitted Liens in existence at on the time of the commencement of the Cases Filing Date that are perfected subsequent to such commencement the Filing Date as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv))Code; and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on all of the property of the Borrowers (including, without limitation, inventory, accounts receivable, rights under license agreements, property, plant and equipment, interests in leaseholds and capital stock of Subsidiaries of the Parent, limited, in the case of an entity that is a controlled foreign corporation under Section 957 of the Code, to 66% of the voting stock of such Loan Parties entity) that is subject to the any existing liens which secure the Existing Second Lien Debt Liens (collectively, the “Primed except Permitted Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the 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, subject in each case only to (x) in the event of the occurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both, the payment of allowed and unpaid professional fees and disbursements incurred by the Borrowers and any statutory committees appointed in the Cases in an aggregate amount not in excess of $5,000,000 and (y) the payment of fees pursuant to 28 U.S.C. Section 1930 to the Clerk of the Bankruptcy Court (collectively, the "CARVE-OUT"). By execution hereof, the Borrowers hereby consent to the priming Lien 133 referenced in clause (iv) above. Following the Termination Date, amounts in the Letter of Credit Account shall not be subject to the Carve-Out Out. Notwithstanding the foregoing, so long as no Event of Default or event which with the giving of notice or lapse of time or both would constitute an Event of Default shall have occurred and be continuing, the Borrowers shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. Section 330 and 11 U.S.C. Section 331, as set forth in the DIP Order same may be due and payable, and any compensation and expenses previously paid, or accrued but unpaid, prior to the Intercreditor Agreementoccurrence of such Event of Default shall not reduce the Carve-Out.
(ab) The obligations of the Guarantor under the Loan Documents shall be secured by a perfected first priority Lien on all of the property of the Guarantor (including, without limitation, inventory, accounts receivable, rights under license agreements, property, plant and equipment, interests in leaseholds and capital stock of Subsidiaries of the Parent, limited, in the case of an entity that is a controlled foreign corporation under Section 957 of the Code, to 66% of the voting stock of such entity).
(c) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) Borrower or the Guarantor, or the possession of which is held by any such Loan Party a Borrower or the Guarantor pursuant to leasehold interest, such Loan Parties the Borrowers and the Guarantor hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Administrative Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties the Borrowers or the Guarantor, as applicable, in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties the Borrowers and the Guarantor in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties The Borrowers acknowledge that, pursuant to the DIP Interim Order (or the Final Order, as applicable), the Liens in favor of the Administrative Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties the Borrowers shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties The Borrowers and the Guarantor further agree that, upon the request of the Administrative Agent, in the exercise of its business judgment, such Loan Parties the Borrowers and the Guarantor shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Administrative Agent.
Appears in 1 contract
Priority and Liens. (a) Subject to Section 2.20(c)The Debtors hereby covenant, each of the Loan Parties hereby covenants represent and agrees warrant that, upon the entry of the DIP Interim Order (and the Final Order, its obligations as applicable), the Obligations of the Debtors hereunder and under the other Loan Documents: Documents (including the obligations of the Debtors under the Guarantee and Collateral Agreement), (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim Claims in the Cases, subject to any limitations set forth in the DIP Order; (ii) 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 Collateral that is subject otherwise not encumbered by a valid, perfected and non-avoidable Lien as of the Petition Date or a valid Lien perfected (but not granted) thereafter to the terms extent such post-Petition Date perfection in respect of a pre-Petition Date claim is expressly permitted under the Intercreditor Agreement Bankruptcy Code, excluding claims and DIP Order) on all causes of the property of such Loan Partiesaction under Sections 502(d), whether now existing or hereafter acquired544, that is not subject to valid545, perfected547, non-voidable liens in existence at the time of commencement of the Cases or to valid548, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) 549 and 550 of the Bankruptcy Code and the proceeds therefrom (limitedit being understood that, in the case of voting equity interests of CFC’snotwithstanding such exclusion, 65% upon entry of the voting equity interestsFinal Order, to the extent approved by the Bankruptcy Court, such Lien shall attach to any proceeds thereof); , (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, Collateral that is subject to (A) valid, perfected and non-voidable avoidable Liens (other than to secure the Debtors’ Prepetition Obligations and Liens that are junior to the Liens securing the Debtors’ Prepetition Obligations) in existence at on the time of the commencement of the Cases Petition Date or that is subject to valid Liens perfected (but not granted) thereafter to the extent such post-Petition Date perfection in existence at the time respect of the commencement of the Cases that are perfected subsequent to such commencement as a pre-Petition Date claim is expressly permitted by Section 546(b) of under the Bankruptcy Code and (B) other than certain property that is subject to the existing Liens that secure obligations as provided in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); ) below, post-Petition Date Liens permitted hereunder, and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on upon all of the property of such Loan Parties Collateral (x) that is subject to a valid Lien or security interest in effect on the existing liens which Petition Date to secure the Existing Second Debtors’ Prepetition Obligations, (y) that is subject to a Lien Debt (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases Petition Date to provide adequate protection Liens in respect of any of the Primed LiensDebtors’ Prepetition Obligations or (z) that is subject to a valid Lien in effect on the Petition Date that is junior to the Liens that secure the Debtors’ Prepetition Obligations, subject and subordinate in each case with respect to subclauses (i) through (iv) above, only to the Carve-Out and Carve Out. For purposes hereof, the “Carve Out” shall be defined as set forth in the DIP Interim Order and the Intercreditor AgreementFinal Order, as applicable.
(ab) As to all Collateral, including without limitation, all cash, Cash Equivalents and real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) , or the possession of which is held by any such Loan Party pursuant to Debtor in the form of a leasehold interest, such Loan Parties each Debtor hereby assign assigns and convey conveys as security, grant grants a security interest in, hypothecatehypothecates, mortgagemortgages, pledge pledges and set sets over unto the Agent on behalf Administrative Agent, for the benefit of the Lenders and the other holders of the Obligations, all of the right, title and interest of the Borrower and such Loan Parties Guarantor in all of such Collateral, including without limitation, all cash, Cash Equivalents and owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of the Borrower and such Loan Parties Guarantor in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge Notwithstanding anything herein to the contrary, the Collateral shall not include the L/C Cash Collateral, and the Liens granted to the Administrative Agent shall not attach to, the L/C Cash Collateral, and the L/C Cash Collateral shall not be subject to the Superpriority Claims granted to the Lenders. The Borrower and each Guarantor acknowledges that, pursuant to and upon entry of the DIP OrderOrders, the Liens granted in favor of the Administrative Agent (on behalf of the Lenders Lenders) in all of such real property and leasehold instruments of such Loan Parties the Collateral shall be perfected without the recordation of any UCC financing statements, notices of Lien or other instruments of mortgage or assignment, subject to the terms and conditions set forth in the Orders. Such Loan Parties The Borrower and each Guarantor further agree that, upon agrees that (a) the request Administrative Agent shall have the rights and remedies set forth in Sections 8 and 11 and in the Security Documents and the Orders in respect of the Collateral and (b) if requested by the Administrative Agent, in the exercise Borrower and each of its business judgment, such Loan Parties the other Debtors shall enter into separate security agreements, pledge agreements and fee and leasehold mortgages in recordable form with respect to such properties Collateral on terms reasonably satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Administrative Agent.
Appears in 1 contract
Samples: Secured Superpriority Debtor in Possession Credit Agreement (NBC Acquisition Corp)
Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Credit Parties hereby covenants and agrees that, that upon the entry of of, and subject to, an Interim Order (and when applicable, the Final Order) and subject to the Carve Out in all respects and, subject to the DIP OrderABL Intercreditor Agreement, its obligations hereunder and under the Loan DocumentsObligations: (i) pursuant to Section section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim Claims in the Chapter 11 Cases, subject to any limitations set forth which Superpriority Claims in respect of the Term Facility and the DIP OrderABL Facility, if any, shall rank pari passu with each other; (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 Lien (that is subject to the terms of the Intercreditor Security Agreement and DIP Orderthe Orders but which will, in any event, be subject to the Carve Out) on all of the property of such Loan PartiesCollateral, whether now existing or hereafter acquired, that is not subject to valid, perfected, non-voidable liens in existence at the time of commencement of the Chapter 11 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 section 546(b) of the Bankruptcy Code (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests)Code; (iii) pursuant to Section section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of such Loan PartiesCollateral, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable nonvoidable Liens in favor of Persons that are not Affiliates of the Credit Parties and in existence at the time of the commencement of the Chapter 11 Cases or that is subject to valid Liens in existence at the time of the commencement of the Chapter 11 Cases that are perfected subsequent to such commencement as permitted by Section section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Prepetition First Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1section 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 property of such Loan Parties Collateral that is subject to the existing liens Liens which secure the Existing Second Prepetition First Lien Debt (collectively, the “Primed Liens”)) other than with respect to Liens on Collateral that is Specified Collateral securing the DIP ABL Facility, if any, all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Administrative Agent, which senior priming Liens in favor of the Administrative Agent shall also prime any Liens granted after the commencement of the Chapter 11 Cases to provide adequate protection Liens to the extent of any diminution in the value of the collateral of the Primed Liens as provided in the Interim Order and the Final Order in respect of any of the Primed Liens, subject in each case to the Carve-Carve Out in all respects and as set forth in the DIP Order Orders (the “Priming Liens”) and with respect to perfection, solely to the extent it may be achieved by the entry of the Orders and the Intercreditor perfection steps required to be taken under the Security Agreement.
(ab) As to all real property the title to which is held by a Loan Party The Priming Liens, (other than any Loan Party that is not a Debtori) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey except as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(cclause (c) below, shall be subject and junior to the Carve Out in all respects, (ii) shall be junior to Liens that are senior to the Primed Liens (unless such Liens are themselves Primed Liens), (iii) shall be senior in all respects to the interests of such property of the holders of the obligations in respect of the Primed Liens and (iv) shall also be senior to any Liens granted after the Petition Date to provide adequate protection in respect of the Primed Liens.
(bc) [Reserved].
(d) The relative priorities of the Liens described in this Section 2.20 2.17 with respect to the Collateral shall be as set forth in the DIP Interim Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans(and, when entered, the First Lien Last OutNew Money Loans and Final Order). In accordance with the Junior Loans shall be as set forth in Interim Order (or, once entered, the DIP Order and Section 6.02. All Final Order), all of the Liens described in this SectionSection 2.17 shall be effective and perfected upon entry of the Interim Order, without the necessity of the execution, recordation of filings by the Debtors of 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.
(ce) Notwithstanding anything Further to Section 2.17(a) and the Interim Order (and, when entered, the Final Order), to secure the full and timely payment and performance of the Obligations, each Credit Party hereby MORTGAGES, GRANTS, BARGAINS, ASSIGNS, SELLS, CONVEYS and CONFIRMS, to the contrary hereinAdministrative Agent, not more than 65% for the ratable benefit of the voting equity Secured Parties, the Real Estate and property and interests relating thereto (which, for the avoidance of doubt, shall include all of such Credit Party’s right, title and interest now or hereafter acquired in and to (A) all improvements now owned or hereafter acquired by such Credit Party, (B) all materials, supplies, equipment, apparatus and other items of personal property now owned or hereafter acquired by such Credit Party 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 Credit Party 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 Uniform Commercial Code) related to the Real Estate, (C) [reserved], (D) all reserves, escrows or impounds and all deposit accounts maintained by such Credit Party 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 Credit Party as an insured party, and (L) all awards, damages, remunerations, reimbursements, settlements or compensation heretofore made or hereafter to be made to any Credit Party 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 Administrative Agent, and such Credit Party 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. Notwithstanding the foregoing, excluded from the foregoing grant of Lien is any right, title and interest of any CFC or a Subsidiary of a CFC shall be pledged Credit Party in favor of and to any Lender or the AgentExcluded Collateral.
Appears in 1 contract
Samples: Superpriority Secured Debtor in Possession Credit Agreement (Avaya Holdings Corp.)
Priority and Liens. At all times prior to the Exit Facility Conversion Date:
(a) Subject to Section 2.20(c)Each Debtor hereby covenants, each of the Loan Parties hereby covenants represents and agrees that, warrants that upon the entry of the each DIP Order, its obligations the Obligations of such Debtor hereunder and under the Loan Documents: :
(i) pursuant to Section section 364(c)(1) of the Bankruptcy CodeCode and subject and subordinate only to the Carve-Out, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP Order; Claims;
(ii) pursuant to Section section 364(c)(2) of the Bankruptcy CodeCode and subject and subordinate only to the Carve-Out, shall at all times be secured by a first priority (subject to the ABL Intercreditor Agreement), valid, binding, continuingenforceable and perfected security interests in, enforceable perfected first priority Lien (and Liens upon, all unencumbered tangible and intangible property of such Debtor including any such property that is subject to valid and perfected Liens in existence on the terms Petition Date, which Liens are thereafter released or otherwise extinguished in connection with the satisfaction of the Intercreditor Agreement and DIP Order) on all obligations secured by such Liens (including, without limitation, subject to the entry of the Final Order, the proceeds of avoidance actions under Chapter 5 of the Bankruptcy Code));
(iii) pursuant to section 364(c)(3) of the Bankruptcy Code and subject to the Carve-Out, shall at all times be secured by junior, valid, binding, enforceable and perfected security interests in, and Liens upon, all property of such Loan Partieseach of the Debtor’s estates that, whether now existing or hereafter acquiredon the Petition Date, that is not was subject to valid, perfected, nona valid and perfected Lien (other than the Liens securing the Prepetition Indebtedness) or becomes subject to a valid Lien perfected (but not granted) after the Petition Date to the extent such post-voidable liens Petition Date perfection in existence at the time respect 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 prepetition claims is expressly permitted by Section under section 546(b) of the Bankruptcy Code (limitedthe “Permitted Prior Liens”); provided that the Liens granted under the Loan Documents shall not be subject or subordinate to (1) notwithstanding anything to the contrary in the Loan Documents or the DIP Orders, any security interest that is avoided and preserved for the benefit of the Debtors and their estates, (2) except as provided in the DIP Orders and except for any Collateral subject to the Permitted Prior Liens, any Liens arising after the Petition Date including, any Liens or security interests granted in favor of any federal, state municipal or other governmental unit, commission, board or court for any liability of the Debtors; or (3) any intercompany or affiliate Liens of the Debtors; and
(iv) pursuant to section 364(d)(1) of the Bankruptcy Code and subject only to the Carve-Out, shall at all times be secured by first priority (subject to the ABL Intercreditor Agreement), priming, valid, binding, enforceable and perfected security interests in, and Liens upon, all the Prepetition Collateral.
(b) The Secured Parties’ Liens and Superpriority Claims shall have priority over any claims, charges or liens arising under section 105, 326, 328, 330, 331, 503(b), 507(a), 726, 1113 or 1114 of the Bankruptcy Code, and shall be subject and subordinate only to (i) the Carve-Out and (ii) to the extent provided in the ABL Intercreditor Agreement, to the Liens securing the Obligations under and as defined in the DIP Term Loan Agreement; provided that, the superpriority claims of the DIP Term Loan Agent provided by the DIP Orders shall be pari passu with the Superpriority Claims. Except as set forth herein, in the case DIP Orders, no other claim having a priority superior to that granted to the Secured Parties by the Interim Order and Final Order, whichever is then in effect, shall be granted or approved while any Obligations under this Agreement remain outstanding.
(c) Except for the Carve-Out, no costs or expenses of voting equity interests of CFC’sadministration shall be imposed against the Administrative Agent, 65% the Lenders, any other Secured Party or any of the voting equity interests); (iii) pursuant to Section 364(c)(3Collateral under sections 105 or 506(c) of the Bankruptcy Code, shall be secured by a validor otherwise, bindingand, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time entry of the commencement Final Order, each of the Cases Debtors hereby waives for itself and on behalf of its estate in bankruptcy, any and all rights under sections 105 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 (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1506(c) of the Bankruptcy Code, shall be secured by a validor otherwise, bindingto assert or impose or seek to assert or impose, continuing, enforceable perfected first priority senior priming Lien on all any such costs or expenses of administration against the property of such Loan Parties that is subject to the existing liens which secure the Existing Second Lien Debt (collectivelyAdministrative Agent, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to Lenders or any other Secured Party.
(to the extent set forth in the DIP Orderd) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the 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, subject in each case to Except for the Carve-Out Out, the Superpriority Claims shall at all times be senior to the rights of each Debtor, any chapter 11 trustee and, subject to section 726 of the Bankruptcy Code, any chapter 7 trustee, or any other creditor (including, without limitation, post-petition counterparties and as set forth other post-petition creditors) in the DIP Order and Chapter 11 Cases or any subsequent proceedings under the Intercreditor Agreement.
(a) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverablesBankruptcy Code, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
any chapter 7 cases (b) The relative priorities if any of the Liens described in this Section 2.20 with respect Debtor’s cases are converted to cases under chapter 7 of the Collateral shall be as set forth Bankruptcy Code), provided the superpriority claims of the DIP Term Loan Agent provided in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans Orders shall be as set forth in pari passu with the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the AgentSuperpriority Claims.
Appears in 1 contract
Priority and Liens. (a) Subject to Section 2.20(c), The Borrower and each of the Loan Parties Guarantors hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Interim Order, its obligations the Obligations of the Borrower and each of the Guarantors that is the subject of a Case hereunder and under the Loan Documents: Documents and in respect of Indebtedness permitted by Section 6.03(a)(iv):
(i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP Order; Claim;
(ii) 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 (that is subject to on all cash maintained in the terms Letter of Credit Account and any investments of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); funds contained therein;
(iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, the Borrower and the Guarantors that is are subject to validthe Cases (other than Primed Assets, perfected and non-voidable Liens as to which the Lien in existence at the time favor of the commencement Agent and the DIP Lenders will be as described in clause (iv) of the Cases or this sentence) that is subject to valid Liens and perfected liens in existence at on the time of Petition Date or in existence on the commencement of the Cases Petition Date that are perfected subsequent to such commencement the Petition Date as permitted by Section 546(b) of the Bankruptcy Code (other than Liens or granted after the Petition Date to provide adequate protection or that are Permitted Liens, which perfected Lien shall be junior to such valid and perfected Liens and junior to Liens securing certain property intercompany advances as provided in the Orders; provided that is subject such Lien need not apply to the existing Liens that secure obligations in respect property of Impac Hotels II, L.L.C. or Impac Hotels III, L.L.C. prior to the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv))Final Order being entered; and and
(iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on all Primed Assets, subject only to (x) in the event of the property occurrence and during the continuance of such Loan Parties an Event of Default or an event that is subject would constitute an Event of Default with the giving of notice or lapse of time or both, the payment of allowed and unpaid professional fees and disbursements incurred by the Borrower, the Guarantors and any statutory committees appointed in the Cases in an aggregate amount not in excess of $1.5 million and (y) the payment of unpaid fees pursuant to 28 U.S.C.ss. 1900 xxx xo the existing liens which secure Clerk of the Existing Second Lien Debt Bankruptcy Court (collectively, the “Primed Liens”"CARVE-OUT"), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth provided that amounts in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor Letter of Credit Account and any investment of the Agent funds contained therein 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, not be subject in each case to the Carve-Out Out, and provided further, that, except as set forth otherwise provided in the DIP Order Orders, no portion of the Carve-Out shall be utilized for the payment of professional fees and disbursements incurred in connection with any investigation of or challenge to the amount, extent, priority, validity, perfection or enforcement of the indebtedness of the Borrower and the Intercreditor AgreementGuarantors owing to the Pre-Petition Lenders or to the collateral securing such indebtedness, and provided further that, except as otherwise provided in Orders, as to proceeds of causes of action to recover preferences, fraudulent transfers or other avoidance claims under chapter 5 of the Bankruptcy Code, the Agent and the DIP Lenders shall have been granted an administrative claim pursuant to Section 503(b) of the Bankruptcy Code. The Superpriority Claims shall at all times be senior to the rights of the Borrower, the Guarantors, any chapter 11 trustee and, subject to section 726 of the Bankruptcy Code, any chapter 7 trustee, or any other creditor (including, without limitation, post-petition vendors and other post-petition creditors) in the Cases or any subsequent proceedings under the Bankruptcy Code, including, without limitation, any chapter 7 cases if any of the Borrower's or the Guarantors' Cases are converted to cases under chapter 7 of the Bankruptcy Code, subject only to the Carve-Out. The DIP Lenders agree that so long as no Event of Default or event which with the giving of notice or lapse of time or both would constitute an Event of Default shall have occurred, the Borrower and the Guarantors shall be permitted to pay compensation and reimbursement of expenses incurred in the ordinary course of business, or professional fees allowed and payable under 11 U.S.C.ss.330 and 11 U.S.C.ss.331 or otherwise permitted to be paid by Court order, as the same may be due and payable, and any compensation and expenses previously paid, or accrued but unpaid, prior to the occurrence of such Event of Default shall not reduce the Carve-Out.
(ab) As to all real property the title to which is held by a Loan Party (other than the Borrower or any Loan Party that is not a Debtor) of the Guarantors, or the possession of which is held by the Borrower or any such Loan Party of the Guarantors pursuant to leasehold interest, the Borrower and each such Loan Parties Guarantor hereby assign assigns and convey conveys as security, grant grants a security interest in, hypothecatehypothecates, mortgagemortgages, pledge pledges and set sets over unto the Agent on behalf of the DIP Lenders all of the right, title and interest of the Borrower and such Loan Parties Guarantor in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of the Borrower and such Loan Parties Guarantor in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge The Borrower and each Guarantor that is a subject of a Case acknowledges that, pursuant to the DIP OrderOrders, the Liens in favor of the Agent on behalf of the DIP Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties The Borrower and each Guarantor further agree that, promptly upon the request of the Agent, in the exercise of its business judgment, Borrower and such Loan Parties Guarantor shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, take all steps necessary to the extent applicable, a notification to the record and perfect such mortgages and real property liens under applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is non-bankruptcy law. The provisions of this Section shall not available or evidence of flood insurance become effective with respect to such property consistent with Impac Hotels II, L.L.C. and Impac Hotels III, L.L.C. (and their respective assets) until the requirements set forth in Section 5.01(c).
(b) The relative priorities date of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the AgentFinal Order.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Lodgian Inc)
Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties Borrower and each Guarantor hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Interim Order, its obligations the Obligations of the Borrower and such Guarantor hereunder and under the Loan Documents: (i) pursuant to Section section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (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 Lien (on all unencumbered tangible and intangible property of the Borrower and such Guarantor and on all cash maintained in the L/C Cash Collateral Account and any investments of the funds contained therein, including any such property that is subject to valid and perfected Liens in existence on the terms Petition Date, which Liens are thereafter released or otherwise extinguished in connection with the satisfaction of the
(b) Each of the Intercreditor Agreement Borrower and DIP Order) on all each Guarantor hereby covenants, represents and warrants that, upon entry of the property of such Loan PartiesFinal OrderDIP Refinancing Orders, whether now existing or hereafter acquired, that is not subject to valid, perfected, non-voidable liens in existence at the time of commencement Obligations of the Cases or Borrower and such Guarantor hereunder and under the Loan Documents:
(i) pursuant 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(bsection 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 unencumbered tangible and intangible property of the Borrower and such Guarantor and on all cash maintained in the L/C Cash Collateral Account and any investments of the funds contained therein, including any such property that is subject to valid and perfected Liens in existence on the Petition Date, which Liens are thereafter released or otherwise extinguished in connection with the satisfaction of the obligations secured by such Liens (excluding any avoidance actions under the Bankruptcy Code (limited, in but including the case of voting equity interests of CFC’s, 65% of the voting equity interestsproceeds therefrom)); (iii) pursuant to Section section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all real, personal and mixed property of the Borrower and such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases or Guarantor that is subject to valid and perfected Liens in existence at on the time of the commencement of the Cases that are perfected subsequent Petition Date, junior to such commencement as permitted by Section 546(b) of the Bankruptcy Code valid and perfected Liens (other than certain property that is subject to Liens securing the existing Liens that secure obligations in respect of the Existing Second Lien DebtUnrolled Pre-Petition Secured Indebtedness), which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section section 364(d)(1) of the Bankruptcy Code), shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on upon all tangible and intangible property of the property of Borrower and such Loan Parties Guarantor that is subject to the existing liens which secure the Existing Second Lien Debt (collectively, Unrolled Pre-Petition Secured Indebtedness; provided that the “Primed Liens”), all of which Primed Liens foregoing shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the 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, subject in each case all respects to the Carve-Out and as set forth in the DIP Order and the Intercreditor AgreementOut.
(ac) As (b) Except for the Carve-Out having priority over the Obligations, the Superpriority Claims shall at all times be senior to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf rights of the Lenders all Borrower, each Guarantor, any chapter 11 trustee and, subject to section 726 of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related theretoBankruptcy Code, any lease chapter 7 trustee, or sublease thereofany other creditor (including, all general intangibles relating thereto without limitation, post-petition counterparties and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, other post-petition creditors) in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to Cases or any subsequent proceedings under the Agent and including customary related deliverablesBankruptcy Code, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities any chapter 7 cases if any of the Liens described in this Section 2.20 with respect Borrower’s or the Guarantor’s cases are converted to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities cases under chapter 7 of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the AgentBankruptcy Code.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement
Priority and Liens. (a) Subject to Section 2.20(c)The Borrowers hereby covenant, each represent and warrant that the Obligations of the Loan Parties hereby covenants and agrees that, upon the entry of the DIP Order, its obligations Borrowers hereunder and under the Loan Documents: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (ii) 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 (that is subject to the terms on all property of the Intercreditor Agreement and DIP Order) on all of the property of such Loan PartiesBorrowers, whether now existing or hereafter acquired, 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 (limitedCode, and on all cash maintained in the case Letter of voting equity interests of CFC’s, 65% Credit Account and any investment of the voting equity interests)funds contained therein, provided that amounts in the Letter of Credit Account shall not be subject to the Carve-Out; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of such Loan Partiesthe Borrowers, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases (including the perfected liens on the stock of certain Subsidiaries of the Parent (the “Stock Liens”) in favor of (x) the trustees for the holders of Indebtedness of the Parent under the Indentures, and (y) the holders of obligations under the Prepetition Credit Agreement and the Surety Bonds) or that is subject to valid Liens in existence 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 (other than certain property that is subject to the existing Liens that secure obligations in respect of under the Existing Second Lien DebtPrepetition Agreements, which liens shall be primed by the liens described in the following clause (iv)); and in addition, (iv) pursuant to Section 364(d)(1364(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 property of such Loan Parties the Borrowers that is subject to the existing liens which secure the Existing Second Lien Debt (collectively, the “Primed Liens”), it being understood that the Stock Liens shall not be primed or constitute part of the Primed Liens) which secure (A) on a first priority basis, the Tranche C Loans, and (B) on a second priority and pari passu basis, (x) approximately $1,650,000,000 of principal amount of indebtedness (plus related interest, fees, costs and charges) owed to the lenders under the Prepetition Credit Agreement, (y) the obligations under the collateral trust, security and/or pledge agreements executed in connection with the Prepetition Agreements and (z) the obligations of the Borrowers in connection with the Surety Bonds and (C) other prepetition obligations or indebtedness (of whatever nature or type) of the Borrowers in an aggregate amount in excess of $20,000,000, all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Administrative Agent, which senior priming Liens in favor of the Administrative Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens but shall not prime Liens, if any, to the extent such Liens secure prepetition obligations or indebtedness (other than obligations under the Prepetition Agreements) in an aggregate amount less than or equal to $20,000,000, subject in each case only to (A) in the event of the occurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both, the payment of accrued and unpaid professional fees and disbursements incurred by the Borrowers and any statutory committees appointed in the Cases, and allowed by the Bankruptcy Court, in an aggregate amount not in excess of $5,000,000 and (B) the payment of fees pursuant to 28 U.S.C. § 1930 and to the Clerk of the Bankruptcy Court (collectively, the “Carve-Out”), provided that no portion of the Carve-Out shall be utilized for the payment of professional fees and expenses incurred, directly or indirectly, in respect of, arising from or relating to, the initiation (other than investigation) or prosecution of any action for preferences, fraudulent conveyances, other avoidance power claims or any other claims or causes of action against the Administrative Agent, the Lenders, the Hedging Parties (as defined in the Approval Order), the administrative agent under the Existing DIP Credit Agreement, the Existing DIP Lenders, the administrative agent under the Prepetition Credit Agreement, the lenders party to the Prepetition Credit Agreement, the issuers of the Surety Bonds or the holders of the Tranche C Loans. Amounts in the Letter of Credit Account shall not be subject to the Carve-Out Out. By execution hereof, the Borrowers hereby consent to the priming Liens referenced in clause (iv) above. Notwithstanding the foregoing, so long as no Event of Default or event which with the giving of notice or lapse of time or both would constitute an Event of Default shall have occurred and be continuing, the Borrowers shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. § 330 and 11 U.S.C. § 331, as set forth the same may be due and payable, and any compensation and expenses previously paid, or accrued but unpaid, prior to the occurrence of such Event of Default shall not reduce the Carve-Out.
(b) To the extent a prepetition creditor has a lien on any prepetition intercompany unsecured claims between and among the Borrowers and no liens on any other assets of the Borrowers other than the stock of Restricted Subsidiaries (as defined in the DIP Order Indentures), such liens shall not be primed, provided, however, that no payments may be made on account of such prepetition claims and the Intercreditor liens of the prepetition creditors shall not extend to the collateral securing the Indebtedness created by this Agreement.
(ac) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) Borrower or the possession of which is held by any such Loan Party a Borrower pursuant to leasehold interest, such Loan Parties the Borrowers hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Administrative Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties the Borrowers in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties the Borrowers in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties The Borrowers acknowledge that, pursuant to the DIP Approval Order, the Liens in favor of the Administrative Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties the Borrowers shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties The Borrowers further agree that, upon the request of the Administrative Agent, in the exercise of its business judgment, such Loan Parties the Borrowers shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c)Administrative Agent.
(bd) The relative priorities To the extent any Borrower makes aggregate payments to the Lenders in excess of the Liens described aggregate amount of all Loans received by such Borrower from the Lenders after the commencement of the Cases, then such Borrower, after the payment in this full of all obligations of the Borrowers in respect of the Commitment and the termination of the Commitment, shall be entitled to a claim under Section 2.20 with respect 364(c)(1) of the Bankruptcy Code against each other Borrower, in such amount as may be determined by the Bankruptcy Court taking into account the relative benefits received by each such person, and such claims shall be deemed to be subordinate and junior in all respects to the Collateral shall be as set forth in superpriority claims of the DIP Order Lenders and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be superpriority claims granted as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything adequate protection to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the AgentPrimed Parties.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Federal Mogul Corp)
Priority and Liens. (a) Subject to Section 2.20(c), The Borrower and each of the Loan Parties Guarantors hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Interim Order, its obligations the Obligations of the Borrower and the Guarantors hereunder and under the Loan Documents: Documents and in respect of Obligations described in Section 6.03(v): (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim administrative expense claims in the Cases, subject to any limitations set forth Cases having priority over all administrative expenses of the kind specified in Sections 503(b) or 507(b) of the DIP OrderBankruptcy Code; (ii) 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 (that is subject to the terms on all present and future receivables of the Intercreditor Agreement Borrower and DIP Order) the Guarantors (including, without limitation, the receivables that are repurchased from ACLFC with the proceeds of a portion of the initial Loans hereunder), and on all other unencumbered property of the property Borrower and the Guarantors and on all cash maintained in the Letter of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, non-voidable liens in existence at the time of commencement Credit Account and any direct investments 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests)funds contained therein; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Partiesthe Borrower and the Guarantors (provided that, whether now as set forth in clause (iv) of this sentence, the existing or hereafter acquired, Liens that is subject to valid, perfected and non-voidable Liens in existence at presently secure the time obligations of the commencement Borrower and the Guarantors under the Existing Agreement will be primed by the Lien in favor of the Cases or Agent and the Lenders) that is subject to valid and perfected Liens in existence at on the time of Filing Date or to valid Liens in existence on the commencement of the Cases Filing Date that are perfected subsequent to such commencement the Filing Date as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject or to the existing Liens that secure obligations in respect of the Existing Second Lien DebtPermitted Liens, which liens shall be primed by the liens described in the following clause (iv))junior to such valid and perfected Liens; and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on all of the tangible and intangible property of such Loan Parties the Borrower and the Guarantors (including without limitation, towboats, barges, drydocks, rigging flats, terminals, contracts (which shall include, but are not limited, to cargo contracts of affreightment), accounts receivable, inventory, patents, copyrights, trademarks, tradenames and all other intellectual property, and the capital stock of all direct subsidiaries of the Borrower and each Guarantor and the proceeds thereof) that is subject to the existing liens which Liens that presently secure the Borrower's and the Guarantors' pre-petition Indebtedness under the Existing Second Lien Debt Agreement (collectively, but subject to any Liens in existence on the “Primed Liens”), all of Filing Date to which Primed the Liens shall be being primed by and made hereby are subject and subordinate to (or become subject subsequent to the extent set forth in the DIP OrderFiling Date as permitted by Section 546(b) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime Bankruptcy Code) and any Liens granted after the commencement of the Cases Filing Date to provide adequate protection Liens in respect of any the Existing Agreement; in the case of each of clauses (i) through (iv) subject only to (x) in the event of the Primed Liensoccurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both, the payment of allowed and unpaid professional fees and disbursements incurred by the Borrower, the Guarantors and any statutory committees appointed in the Cases in an aggregate amount not in excess of $1,000,000 (plus all unpaid professional fees and disbursements incurred prior to the occurrence of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both and reflected on the most recent Borrowing Base Certificate delivered to the Agent prior to such occurrence to the extent allowed by the Bankruptcy Court at any time) and (y) the payment of unpaid fees pursuant to 28 U.S.C. ss. 1930 and to the Clerk of the Bankruptcy Court (collectively, the "Carve-Out"), provided that following the Termination Date amounts in the Letter of Credit Account shall not be subject in each case to the Carve-Out, and provided, further, that, except as otherwise provided in the Orders, no portion of the Carve-Out shall be utilized for the payment of professional fees and disbursements incurred in connection with any challenge to the amount, extent, priority, validity, perfection or enforcement of the indebtedness of the Borrower and the Guarantors owing to the Existing Lenders or to the collateral securing such indebtedness. The Lenders agree that so long as no Event of Default or event which with the giving of notice or lapse of time or both would constitute an Event of Default shall have occurred, the Borrower and the Guarantors shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. ss. 330 and 11 U.S.C. ss. 331, as the same may be due and payable, and the same shall not reduce the Carve-Out.
(b) Subject to the priorities set forth in the DIP Order and the Intercreditor Agreement.
subsection (a) As above and to the Carve-Out, as to all real property the title to which is held by a Loan Party (other than the Borrower or any Loan Party that is not a Debtor) of the Guarantors, or the possession of which is held by the Borrower or any such Loan Party of the Guarantors pursuant to leasehold interest, such Loan Parties and which secures the obligations under the Existing Agreement, the Borrower and each Guarantor hereby assign assigns and convey conveys as security, grant grants a security interest in, hypothecatehypothecates, mortgagemortgages, pledge pledges and set sets over unto the Agent on behalf of the Lenders all of the right, title and interest of the Borrower and such Loan Parties Guarantor in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of the Borrower and such Loan Parties Guarantor in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge The Borrower and each Guarantor acknowledges that, pursuant to the DIP OrderOrders, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties The Borrower and each Guarantor further agree agrees that, upon the request of the Agent, in the exercise of its business judgment, Borrower and such Loan Parties Guarantor shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms reasonably satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Danielson Holding Corp)
Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties Borrowers hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Amendment Order, its obligations the Obligations of the Borrowers hereunder and under the Loan Documents: Documents and in respect of Indebtedness permitted by Section 6.3(v): (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (ii) 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 unencumbered property of the Borrowers and on all cash maintained in the Letter of Credit Account and any direct investments of the funds contained therein, provided that is following the Termination Date, amounts in the Letter of Credit Account shall not be subject to the terms of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, nonCarve-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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests)Out; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, the Borrowers that is subject to valid, valid and perfected and non-voidable Liens in existence at on the time of the commencement of the Cases Filing Date or that is subject to valid Liens in existence at on the time of the commencement of the Cases Filing Date that are perfected subsequent to such commencement the Filing Date as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv))Code; and in addition, (iv) pursuant to Section 364(d)(1) of the Bankruptcy CodeCode and other than as expressly set forth in the Orders, shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on all of the property of such Loan Parties the Borrowers (including, without limitation, inventory, receivables, rights under license agreements, and property, plant and equipment) that is subject to the existing liens which secure (x) the Existing Second Lien Debt obligations of the Parent Borrower and certain of the Subsidiary Borrowers under or in connection with the Pre-Petition Credit Agreement, and (y) other obligations or indebtedness of the Borrowers pursuant to other agreements in an aggregate amount in excess of $2,500,000 (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Administrative Agent, which senior priming Liens in favor of the Administrative Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens but shall not prime Liens, if any, to the extent such Liens secure obligations (other than obligations under the Pre-Petition Credit Agreement) in an aggregate amount less than or equal to $2,500,000; subject in each case only to (x) in the event of the occurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both (a “Default”), the payment of allowed and unpaid professional fees and disbursements incurred by the Borrowers and any statutory committees appointed in the Cases in an aggregate amount not in excess of $3,000,000 (plus the amount set forth in the most recent Borrowing Base Certificate delivered by the Borrowers to the Administrative Agent of then unpaid professional fees and expenses incurred prior to the occurrence of a Default or an Event of Default to the extent that such unpaid fees and expenses are subsequently allowed by the Bankruptcy Court), and (y) the payment of fees pursuant to 28 U.S.C. § 1930 and to the Clerk of the Bankruptcy Court (collectively, the “Carve-Out”), provided that no portion of the Carve-Out shall be utilized for the payment of professional fees and disbursements incurred in connection with any challenge to the amount, extent, priority, validity, perfection or enforcement of the Indebtedness of the Borrowers owed with respect to the parties primed by the priming Liens or to the collateral securing such Indebtedness or any other action against such parties. Amounts in the Letter of Credit Account shall not be subject to the Carve-Out Out. By execution hereof, the Borrowers hereby consent to the priming Liens referenced in clause (iv) above. Notwithstanding the foregoing, so long as no Default or Event of Default shall have occurred and be continuing, the Borrowers shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. §§ 328, 330 and 331, as the same may be due and payable, and any compensation and expenses previously paid, or accrued but unpaid, prior to the occurrence of such Default or Event of Default shall not reduce the Carve-Out.
(b) Subject to the priorities set forth in the DIP Order and the Intercreditor Agreement.
subsection (a) As above and to the Carve-Out, as to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) Borrower, or the possession of which is held by any such Loan Party a Borrower pursuant to leasehold interest, such Loan Parties the Parent Borrower and each of the Subsidiary Borrowers hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Administrative Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties the Borrowers, in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties the Borrowers in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties The Parent Borrower and each of the Subsidiary Borrowers acknowledge that, pursuant to the DIP OrderOrders, the Liens in favor of the Administrative Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties the Borrowers shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties The Parent Borrower and each of the Subsidiary Borrowers further agree that, upon the request of the Administrative Agent, in the exercise of its business judgment, such Loan Parties the Parent Borrower and each of the Subsidiary Borrowers shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c)Administrative Agent.
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything To the extent any Borrower makes aggregate payments to the contrary herein, not more than 65% Lenders in excess of the voting equity interests aggregate amount of any CFC or a Subsidiary all Loans received by such Borrower from the Lenders after the commencement of a CFC the Cases, then such Borrower, after the payment in full of all obligations of the Borrowers in respect of the Commitment and the termination of the Commitment, shall be pledged entitled to a claim under Section 364(c)(1) of the Bankruptcy Code against each other Borrower, in favor such amount as may be determined by the Bankruptcy Court taking into account the relative benefits received by each such person, and such claims shall be deemed to be subordinate and junior in all respects to the superpriority claims of any Lender or the AgentLenders and the superpriority claims granted as adequate protection to the Primed Parties.
Appears in 1 contract
Samples: Revolving Credit Agreement (Interstate Bakeries Corp/De/)
Priority and Liens. (a) Subject to Section 2.20(c)The Borrowers hereby covenant, each of the Loan Parties hereby covenants represent and agrees warrant that, upon the entry of the DIP Interim Order, its obligations the Obligations of the Borrowers hereunder and under the Loan Documents: Documents and in respect of Indebtedness permitted by Section ------- 6.3(v): (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all ------ times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (ii) 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 unencumbered property of the Borrowers and on all cash maintained in the Letter of Credit Account and any direct investments of the funds contained therein, provided that is amounts in the Letter of Credit -------- Account shall not be subject to the terms of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, nonCarve-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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests)Out; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, the Borrowers that is subject to valid, valid and perfected and non-voidable Liens in existence at on the time Filing Date (including the perfected liens on the stock of certain Subsidiaries of the commencement Parent ("Stock Liens") in favor of (x) the trustee ----------- for the holders of Indebtedness of the Cases Parent under the Indentures, and (y) the holders of obligations under the Existing Credit Agreement and the Surety Bonds) or that is subject to valid Liens in existence at on the time of the commencement of the Cases Filing Date that are perfected subsequent to such commencement the Filing Date as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of under the Existing Second Lien DebtAgreements, which liens shall be primed by the liens to be granted to the Administrative Agent described in the following clause (iv)); and in addition, (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on all of the property of such Loan Parties the Borrowers (including, without limitation, inventory, receivables, rights under license agreements, property, plant and equipment and interests in leaseholds) that is subject to the existing liens (the "Primed Liens", it being understood that the Stock Liens shall not be primed or ------------ constitute part of the Primed Liens) which secure (x) on a pari passu basis, the obligations of the Borrowers to the lenders party to the Existing Second Lien Debt Credit Agreement and the obligations of the Borrowers in connection with the Surety Bonds, and (collectively, y) other obligations or Indebtedness of the “Primed Liens”)Borrowers pursuant to the other Existing Agreements, all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Administrative Agent, which senior priming Liens in favor of the Administrative Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens but shall not prime Liens, if any, to the extent such Liens secure obligations (other than obligations under the Existing Agreements) in an aggregate amount less than or equal to $20,000,000, subject in each case only to (x) in the event of the occurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both, the payment of allowed and unpaid professional fees and disbursements incurred by the Borrowers and any statutory committees appointed in the Cases in an aggregate amount not in excess of $5,000,000 and (y) the payment of fees pursuant to 28 U.S.C. ss. 1930 and to the Clerk of the Bankruptcy Court (collectively, the "Carve-Out"), provided that no portion of --------- -------- the Carve-Out shall be utilized for the payment of professional fees and disbursements incurred in connection with any challenge to the amount, extent, priority, validity, perfection or enforcement of the Indebtedness of the Borrowers owed with respect to the parties primed by the priming Liens or to the collateral securing such Indebtedness or any other action against such parties. Amounts in the Letter of Credit Account shall not be subject to the Carve-Out and as set forth Out. By execution hereof, the Borrowers hereby consent to the priming Liens referenced in clause (iv) above. Amounts in the DIP Order Letter of Credit Account shall not be subject to the Carve-Out. Notwithstanding the foregoing, so long as no Event of Default or event which with the giving of notice or lapse of time or both would constitute an Event of Default shall have occurred and be continuing, the Borrowers shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. ss. 330 and 11 U.S.C. ss. 331, as the same may be due and payable, and any compensation and expenses previously paid, or accrued but unpaid, prior to the occurrence of such Event of Default shall not reduce the Carve-Out. Notwithstanding the foregoing or any provision of the Security and Pledge Agreement to the contrary, Collateral shall not include any of the Borrowers' avoidance actions under Sections 544 through 549 of the Bankruptcy Code.
(b) To the extent a prepetition creditor has a lien on any prepetition intercompany unsecured claims between and among the Borrowers and no liens on any other assets of the Borrowers other than the stock of Restricted Subsidiaries (as defined in the Indentures), such liens shall not be primed, provided, however, that no payments may be made on account of such prepetition -------- ------- claims and the Intercreditor liens of the prepetition creditors shall not extend to the collateral securing the Indebtedness created by this Agreement.
(ac) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) Borrower or the possession of which is held by any such Loan Party a Borrower pursuant to leasehold interest, such Loan Parties the Borrowers hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Administrative Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties the Borrowers in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties the Borrowers in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties The Borrowers acknowledge that, pursuant to the DIP Interim Order (or the Final Order, as applicable), the Liens in favor of the Administrative Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties the Borrowers shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties The Borrowers further agree that, upon the request of the Administrative Agent, in the exercise of its business judgment, such Loan Parties the Borrowers shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c)Administrative Agent.
(bd) The relative priorities To the extent any Borrower makes aggregate payments to the Lenders in excess of the Liens described aggregate amount of all Loans received by such Borrower from the Lenders after the commencement of the Cases, then such Borrower, after the payment in this full of all obligations of the Borrowers in respect of the Commitment and the termination of the Commitment, shall be entitled to a claim under Section 2.20 with respect 364(c)(1) of the Bankruptcy Code against each other Borrower, in such amount as may be determined by the Bankruptcy Court taking into account the relative benefits received by each such person, and such claims shall be deemed to be subordinate and junior in all respects to the Collateral shall be as set forth in superpriority claims of the DIP Order Lenders and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be superpriority claims granted as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything adequate protection to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the AgentPrimed Parties.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Guaranty Agreement (Federal Mogul Corp)
Priority and Liens. (a) Subject to Section 2.20(c), each of the Loan Parties hereby covenants and agrees that, upon the entry of the DIP Order, its obligations hereunder and under the Loan Documents: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP Order; (ii) 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 (that is subject to the terms of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable 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 (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on all of the property of such Loan Parties that is subject to the existing liens which secure the Existing Second Lien Debt (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the 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, subject in each case to the Carve-Out and as set forth in the DIP Order and the Intercreditor Agreement.
(a) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew New Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this SectionSection 2.20 with respect to the Facilities shall be effective and perfected upon entry of the DIP Order.
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.
Appears in 1 contract
Samples: Debtor in Possession Loan Agreement
Priority and Liens. At all times during the term hereof, each Borrower shall ensure each of the following and in each case subject to the Carve Out and as otherwise provided in the Orders and the CCAA Orders:
(a) Subject to Section 2.20(c), Upon the entry of each of the Loan Parties hereby covenants Orders, each Borrower’s, each other Debtor’s and agrees that, upon the entry of the DIP Order, its obligations each other CCAA Debtor’s Obligations hereunder and under each of the other Loan Documents: Documents shall, at all times:
(i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed DIP Superpriority Claim on a joint and several basis in the Cases, subject to any limitations set forth in Case of such Debtor and the DIP Order; CCAA Case of such CCAA Debtor;
(ii) pursuant to Section section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a first priority, valid, binding, continuing, enforceable and fully-perfected first priority Lien (that is subject to the terms or opposable security interests in, and Liens upon, all DIP Collateral that, on or as of the Intercreditor Agreement and DIP Order) on all of the property of such Loan PartiesPetition Date, whether now existing or hereafter acquired, that is not subject to valid, perfected, or opposable, and non-voidable avoidable liens in existence at (excluding any Avoidance Actions (but including, following the time of commencement entry of the Cases or to validFinal Order, 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interestsproceeds therefrom); );
(iii) pursuant to Section section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Partiesand fully-perfected, or opposable, security interests in, and Liens upon, the DIP Collateral, whether now existing on the Petition Date or hereafter thereafter acquired, that is subject to Liens of parties other than the Pre-Petition Parties, Liens securing the Adequate Protection Liens of the Pre-Petition Parties, the Carve Out or any Permitted Lien (as defined in the Interim Order), which security interests and liens in favor of the Agent, are junior to such valid, perfected or opposable and non-voidable 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 (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv))avoidable Liens; and and
(iv) pursuant to Section 364(d)(1section 364(d) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected enforceable, fully perfected, or opposable, first priority senior priming Lien on security interests and Liens upon all of the property of such Loan Parties DIP Collateral that is subject to valid, perfected, or opposable, and non- avoidable liens presently held for the existing benefit of the Pre-Petition Parties (such priming liens, the “Priming Liens” and such primed liens which secure of the Existing Second Lien Debt (collectivelyPre-Petition Parties, the “Primed Liens”), . The Priming Liens shall be senior in all respects to the Primed Liens and to the interests in property of which the Pre-Petition Parties (including any and all forms of adequate protection granted to the foregoing). The Primed Liens shall be primed by and made subject and subordinate to the Priming Liens, but the Priming Liens shall not prime liens, if any, to which the Primed Liens are subordinate as of the Petition Date.
(b) The Liens of the Agent described in Section 5.22(a) and the DIP Superpriority Claim shall have priority over any claims arising, upon entry of the Final Order, under sections 105 and 506(c) of the Bankruptcy Code, and shall be subject only to the extent Carve Out, and other Permitted Liens (as defined in the Interim Order) and as otherwise provided in the CCAA Orders. Except as set forth in the DIP Order) the perfected first herein, no other claim having priority senior Liens superior to be or pari passu with that granted to the Secured Parties by the Order then in effect shall be granted or approved while any Obligations under this Agreement remain outstanding.
(c) Upon entry of the Final Order, except for the Carve Out and as otherwise provided in the CCAA Orders, no costs or expenses of administration shall be imposed against the Agent, which the Lenders, or any other Secured Party or any of the Collateral or, subject to the entry of the Final Order, under sections 105 or 506(c) of the Bankruptcy Code, or otherwise, and each of the Debtors hereby waives for itself and on behalf of its estate and all rights under section 105 and, upon entry of the Final Order, section 506(c) of the Bankruptcy Code, or otherwise, to assert or impose or seek to assert or impose, any such costs or expenses of administration against the Agent, the Lenders, or any Secured Party.
(d) Except for the Carve Out and as otherwise provided in the CCAA Orders, the DIP Superpriority Claims of the Secured Parties and the Pre-Petition Parties shall at all times be senior priming to the rights of such Debtor, any chapter 11 trustee and, subject to section 726 of the Bankruptcy Code, any chapter 7 trustee, or any other creditor (including post-petition counterparties and other post-petition creditors) in the Cases or any subsequent proceedings under the Bankruptcy Code, including any chapter 7 cases (if any of such Debtor’s cases are converted to cases under chapter 7 of the Bankruptcy Code).
(e) For the avoidance of doubt and notwithstanding anything to the contrary herein or elsewhere, the Carve Out shall be senior to all liens securing the Obligations as well as any Adequate Protection Liens and claims granted by any Order. Nothing herein shall be construed to impair the ability of any party to object to any of the fees, expenses, reimbursement or compensation of any professional retained by any Debtor or a Committee. Notwithstanding anything herein to the contrary, prior to an Event of Default, the Debtors shall, in accordance with the Budget and subject to the terms of the Orders and any other relevant orders of the Bankruptcy Court, be permitted to pay compensation and reimbursement of expenses to professionals allowed and payable under sections 330 and 331 of the Bankruptcy Code and such orders of the Bankruptcy Court authorizing the payment of compensation and reimbursement of expenses that have been incurred prior to the occurrence of such Event of Default, and such amounts paid will not reduce the Post-Carve-Out Trigger Notice Cap.
(f) The Borrower and each CCAA Debtor hereby covenants that, upon entry of the CCAA Initial Order (and when applicable, the CCAA A&R Initial Order), and in all cases subject to the terms of the CCAA Initial Order and the CCAA A&R Initial Order, as the case may be:
(i) the Obligations of the CCAA Debtors under the Credit Documents shall at all times be secured by the CCAA DIP Charge in favor of the Agent shall also prime any Liens granted after on behalf of and for the commencement benefit of the Cases to provide adequate protection Liens in respect of any Secured Parties on the Collateral of the Primed Liens, subject in each case to CCAA Debtors with the Carve-Out priority and other terms as set forth in the DIP Order and the Intercreditor Agreement.CCAA Orders; and
(aii) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP CCAA Initial Order (and, when entered, the CCAA A&R Initial Order), the Liens in favor of the Agent on behalf of and for the Lenders in all benefit of such real property and leasehold instruments the Secured Parties on the Collateral of such Loan Parties the CCAA Debtors shall be created and perfected without the recordation or filing in any land records or filing offices of any instruments of mortgage Mortgage, security agreement, financing statement, assignment or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c)similar instrument.
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.
Appears in 1 contract
Samples: Senior Secured Super Priority Debtor in Possession Credit Agreement
Priority and Liens. At all times:
(a) Subject to Section 2.20(c)Each Debtor hereby covenants, each of the Loan Parties hereby covenants represents and agrees that, warrants that upon the entry of the each DIP Order, its obligations the Obligations of such Debtor hereunder and under the Loan Documents: ,
(i) pursuant to Section section 364(c)(1) of the Bankruptcy CodeCode and subject and subordinate only to the Carve-Out, shall at all times constitute an allowed Superpriority Claim in Claims, pari passu with the Cases, subject Superpriority Claims arising from the ABL Credit Agreement and related loan documents pursuant to any limitations set forth in the DIP Order; Orders;
(ii) pursuant to Section sections 364(c)(2) and 364(c)(3) of the Bankruptcy CodeCode and subject and subordinate only to the Carve-Out and the Permitted Non-Primed Liens (as defined in the Interim Order) described below, shall at all times be secured by a first priority, valid, binding, continuingenforceable and perfected security interests in, enforceable perfected first priority and Liens upon, all
(A) Principal Properties as of the Petition Date and any other properties that qualify as Principal Properties after the Petition Date, subject to clause (xiii) of the definition of Excluded Property and subject to any Lien permitted by clauses (d), (e) and (h) of Section 6.02 that is subject to the terms of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, non-voidable liens in existence at the time of commencement avoidable and enforceable as of the Cases Petition Date or that becomes perfected after the Petition Date pursuant to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section section 546(b) of the Bankruptcy Code Code;
(limitedB) unencumbered equity interests directly owned by such Debtor including any such equity interest that is subject to valid and perfected Liens in existence on the Petition Date, which Liens are thereafter released or otherwise extinguished in connection with the satisfaction of the obligations secured by such Liens and subject to any Lien permitted by clauses (d), (e) and (h) of Section 6.02 that is valid, perfected, non-avoidable and enforceable as of the Petition Date or that becomes perfected after the Petition Date pursuant to section 546(b) of the Bankruptcy Code;
(C) all other unencumbered tangible and intangible property of such Debtor that is neither Notes Priority Collateral or ABL Priority Collateral (as such terms are defined in the case of voting equity interests of CFC’sABL Intercreditor Agreement) including any such property that is subject to valid and perfected Liens in existence on the Petition Date, 65% which Liens are thereafter released or otherwise extinguished in connection with the satisfaction of the voting equity interests)obligations secured by such Liens;
(D) subject to the entry of the Final Order, the proceeds of avoidance actions under Chapter 5 of the Bankruptcy Code; and
(iii) pursuant to Section section 364(c)(3) of the Bankruptcy Code and subject and subordinate to the Carve-Out, shall at all times be secured by valid, binding, enforceable and fully-perfected junior security interests in, and Liens upon, all other tangible and intangible prepetition or postpetition property of the Debtors that is neither Notes Priority Collateral nor ABL Priority Collateral (as such terms are defined in the ABL Intercreditor Agreement) that is subject to a perfected, non-avoidable and enforceable Lien as of the Petition Date or that becomes perfected after the Petition Date pursuant to section 546(b) of the Bankruptcy Code.
(b) The Secured Parties’ Liens on the Collateral shall be senior to any Liens granted thereon to the Prepetition Secured Parties (including as adequate protection) and senior to any Liens granted in favor of the ABL Obligations (other than with respect to proceeds of avoidance actions under Chapter 5 of the Bankruptcy Code, in which the Secured Parties’ Liens and Liens securing the ABL Obligations shall be pari passu).
(c) The Secured Parties’ Liens and Superpriority Claims shall have priority over any claims, charges or liens arising under section 105, 326, 328, 330, 331, 503(b), 507(a), 726, 1113 or 1114 of the Bankruptcy Code, and shall be subject and subordinate only to the Carve-Out; provided that the Superpriority Claims arising under the ABL Credit Agreement provided by the DIP Orders shall be pari passu with the Superpriority Claims of the Secured Parties. Except as set forth herein or in the DIP Orders, no other claim having a priority superior to that granted to the Secured Parties by the Interim Order and Final Order, whichever is then in effect, shall be granted or approved while any Obligations under this Agreement remain outstanding.
(d) Except for the Carve-Out, no costs or expenses of administration shall be imposed against the Administrative Agent, the Lenders, any other Secured Party or any of the Collateral under sections 105 or 506(c) of the Bankruptcy Code, shall be secured by a validor otherwise, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time each of the commencement Debtors hereby waives for itself and on behalf of the Cases its estate in bankruptcy, any and all rights under sections 105 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 (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1506(c) of the Bankruptcy Code, shall be secured by a validor otherwise, bindingto assert or impose or seek to assert or impose, continuing, enforceable perfected first priority senior priming Lien on all any such costs or expenses of administration against the property of such Loan Parties that is subject to the existing liens which secure the Existing Second Lien Debt (collectivelyAdministrative Agent, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime Lenders or any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens, subject in each case to the Carve-Out and as set forth in the DIP Order and the Intercreditor Agreementother Secured Party.
(a) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.
Appears in 1 contract
Priority and Liens. (a) Subject to Section 2.20(c), The Borrower and each of the Loan Parties Guarantors hereby covenants covenants, represents and agrees warrants hereby that, upon the entry of the DIP Interim Order (and the Final Order, its obligations as applicable), the Obligations of the Borrower and the Guarantors hereunder and under the other Loan Documents: Documents and the Interim Order (and the Final Order, as applicable), including, without limitation in respect of Cash Management Obligations, (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesClaims, subject to any limitations set forth in the DIP Order; (ii) 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 (that is subject to on all Collateral, including without limitation, all cash maintained in the terms Letter of Credit Account, the Concentration Account, any Qualified Account and the Asset Sale Proceeds Account and any direct investments of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquiredfunds contained therein, that is otherwise not subject to valid, perfected, non-voidable liens in existence at the time of commencement encumbered by a valid and perfected Lien as of the Cases or to validPetition Date, non-voidable liens in existence at including the time proceeds of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (limitedall avoidance actions, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, Collateral that is subject to valid, perfected and non-voidable avoidable Liens in existence at on 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 Filing Date (other than certain property that is subject to secure the Pre-Petition Obligations) or valid, non-avoidable Liens perfected (but not granted) thereafter to the existing Liens that secure obligations extent such post-Filing Date perfection in respect of a pre-Filing Date claim is expressly permitted under the Existing Second Lien DebtBankruptcy Code, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on upon all of the property of such Loan Parties Collateral (x) that is subject to a valid Lien or security interest in effect on the existing liens which Filing Date to secure the Existing Second Pre-Petition Obligations, (y) that is subject to a Lien Debt granted after the Filing Date to provide adequate protection in respect of the Pre-Petition Obligations or (collectivelyz) that is presently subject to a valid Lien in effect on the Filing Date that is junior to the Liens that secure the Prepetition Obligations, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate in each case with respect to subclauses (i) through (iv) above, only to payment of (A) the extent unpaid fees of the clerk of the Bankruptcy Court and of the United States Trustee pursuant to 28 U.S.C. Section 1930(a) and (b), (B) following the occurrence and during the continuation of a Default or Event of Default, the aggregate allowed unpaid fees and expenses payable under Sections 330 and 331 of the Bankruptcy Code to professional persons retained pursuant to an order of the Court by the Borrower or any Guarantor or any statutory committee appointed in these chapter 11 cases not to exceed $1,500,000 in the aggregate, and (C) costs and administrative expenses permitted to be incurred by any chapter 7 trustee pursuant to an order of the Bankruptcy Court following any conversion of the Borrower's and the Guarantors' chapter 11 cases pursuant to Section 1112 of the Bankruptcy Code in an amount not to exceed $50,000 (collectively (A) through (C), the "Carve-Out"). So long as no Event of Default shall have occurred and be continuing, the Borrower and the Guarantors shall be permitted to pay compensation and reimbursement of expenses allowed and payable under sections 330 and 331 of the Bankruptcy Code (including, subject to restrictions set forth in this section, the DIP fees and expenses of all professional persons retained pursuant to an order of the Bankruptcy by all statutory committees appointed in these cases not to exceed $150,000 in the aggregate for these chapter 11 cases), as the same may be due and payable, and the same shall not reduce the Carve-Out; provided, however, that (i) notwithstanding anything to the contrary herein, no Borrowings, Letters of Credit, cash collateral, Collateral or the Carve-Out may be used to (A) object, contest or raise any defense to, the validity, perfection, priority, extent or enforceability of any amount due under the Loan Documents or the Existing Agreement, or the liens or claims granted under the Interim Order (and the Final Order, as applicable), the Loan Documents or the Existing Agreement (but may be used for the investigation in connection with the Existing Agreements), (B) assert any claims, counterclaims, defenses or causes of action against the perfected first priority senior Liens Agent, the Lenders, the Pre-Petition Agent or the Existing Lenders or their respective affiliates, (C) prevent, hinder or otherwise delay the Agent's or the Pre-Petition Agent's assertion, enforcement or realization on cash collateral or the Collateral in accordance with the Loan Documents, the Existing Agreements or the Interim Order (and the Final Order, as applicable) or (D) seek to be modify any of the rights granted to the Agent, which senior priming Liens the Lenders, the Pre-Petition Agent or the Existing Lenders under the Loan Documents, the Existing Agreement or the Interim Order (and the Final Order, as applicable), in favor each of the Agent foregoing cases without such parties' prior written consent; (ii) nothing herein shall also prime be construed to impair the ability of any Liens granted after the commencement of the Cases party to provide adequate protection Liens in respect of object to any of the Primed Liensfees, expenses, reimbursement or compensation described in clauses (ii) and (iii) above, and (iii) cash in the Letter of Credit Account, shall not be subject in each case to the Carve-Out. Notwithstanding anything herein to the contrary, the Carve-Out and as set forth in the DIP Order and the Intercreditor Agreementshall not be used to commence or prosecute (but may be used to investigate) any Prohibited Claim.
(ab) As to all Collateral, including without limitation, all cash, cash equivalents, commercial tort claims and real property the title to which is held by a Loan Party (other than the Borrower or any Loan Party that is not a Debtor) Guarantor, or the possession of which is held by the Borrower or any such Loan Party pursuant to of the Guarantors in the form of a leasehold interest, such Loan Parties the Borrower and each Guarantor hereby assign assigns and convey conveys as security, grant grants a security interest in, hypothecatehypothecates, mortgagemortgages, pledge pledges and set sets over unto the Agent (on behalf of the Lenders Lenders) all of the right, title and interest of the Borrower and such Loan Parties Guarantor in all of such Collateral, including without limitation, all cash, cash equivalents, commercial tort claims and owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of the Borrower and such Loan Parties Guarantor in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge The Borrower and each Guarantor acknowledges that, pursuant to the DIP Interim Order (and the Final Order, as applicable), the Liens granted in favor of the Agent (on behalf of the Lenders Lenders) in all of such real property and leasehold instruments of such Loan Parties the Collateral shall be perfected without the recordation of any Uniform Commercial Code financing statements, notices of Lien or other instruments of mortgage or assignment. Such Loan Parties The Borrower and each Guarantor further agree thatagrees that (i) the Agent shall have the rights and remedies set forth in Section 10 in respect of the Collateral, upon the request of (ii) if requested by the Agent, in the exercise Borrower and each of its business judgment, such Loan Parties the Guarantors shall enter into separate security agreements, pledge agreements and fee and leasehold mortgages in recordable form with respect to such properties Collateral on terms reasonably satisfactory to the Agent and (iii) the Agent is authorized to file or record financing statements and other filing or recordation documents or instruments with respect to the Collateral without the signature of the Borrower or any Guarantor in such form and in such offices as the Agent reasonably determines appropriate to further evidence the perfection of the security interests of the Agent under this Agreement and to use the collateral description "all personal property" in any such financing statements.
(c) The Borrower and each Guarantor acknowledge and agree that the Existing Lenders shall receive (i) as adequate protection for, and to the extent of, any diminution in the value of the Existing Lenders' respective interests in their collateral whether resulting from the imposition of the automatic stay, the priming described in Section 2.23(a) above, the use of the Existing Lenders' cash collateral or the use, sale, lease, depreciation, decline in market price or other diminution in value of the Existing Lenders' collateral (A) a Superpriority Claim as described in the Interim Order (and the Final Order, as applicable) and (B) a replacement Lien on the Collateral as described in the Interim Order (and the Final Order, as applicable) (subject and subordinate, in the case of clauses (A) and (B) above, to the Carve Out and valid and perfected Liens which are senior (after giving effect to the Orders) to the Liens granted to the Agent and the Lenders pursuant to the Interim Orders (and the Final Order, as applicable) and (ii) as further adequate protection (A) the payment on a current basis of the reasonable fees and expenses (including, but not limited to, the reasonable fees and disbursements of counsel and internal and third-party consultants, including customary related deliverablesfinancial consultants, appraisers and auditors) incurred by the Pre-Petition Agent under the Existing Agreement (including, without limitation, a Standard Flood Hazard Determination andon-going administration fees and expenses and any unpaid prepetition fees and expenses), (B) subject to the extent applicableconsent of the Lenders and the Pre-Petition Agent, a notification the right to apply Eligible Cash in excess of $30,000,000 to the applicable Loan Party that that flood insurance coverage repayment of amounts owing under the National Flood Insurance Program is not available Existing Agreement, and (C) receipt of all financial statements and other reports furnished to the Agent or evidence the Lenders pursuant hereto. None of flood insurance such fees, costs and charges shall be subject to the approval of the Bankruptcy Court and no recipient of any such payment shall be required to file with respect to such property consistent thereto any interim or final fee application with the requirements set forth in Section 5.01(c).
Bankruptcy Court. Notwithstanding the foregoing, the grant of adequate protection pursuant to the Interim Order (band the Final Order, as applicable) The relative priorities is without prejudice to the right of the Liens described Existing Lenders to seek modification of the grant of adequate protection provided by the Interim Order (and the Final Order, as applicable) so as to provide different or additional adequate protection. So long as there are any borrowings or Letters of Credit outstanding or the Commitment is in this Section 2.20 with respect effect, the Existing Lenders shall not be permitted to take any action in the Bankruptcy Court or otherwise related to the Collateral shall be as set forth in enforcement of such adequate protection liens or the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything liens granted pursuant to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the AgentExisting Agreement.
Appears in 1 contract
Samples: Revolving Credit, Guaranty and Security Agreement (Acterna Corp)
Priority and Liens. (a1) Subject to Section 2.20(c), The Borrower and each of the Loan Parties Guarantors hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Order, its obligations hereunder and under the Loan Documents: Interim Order (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, the Obligations of the Borrower and the Guarantors hereunder and under the Loan Documents and in respect of Indebtedness permitted by Section 6.03(vi) shall at all times constitute an allowed Superpriority Claim administrative expense claims in the CasesCases having priority over all administrative expenses of the kind specified in Sections 503(b) or 507(b) of the Bankruptcy Code, subject to any limitations set forth in the DIP Order; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, the Obligations of the Borrower and the Guarantors hereunder and under the Loan Documents and in respect of Indebtedness permitted by Section 6.03(vi) shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (that is subject to on all cash maintained in the terms Letter of Credit Account and any direct investments of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Partiesfunds contained therein, whether now existing or hereafter acquired, 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, the Obligations of the Borrower and the Guarantors hereunder and under the Loan Documents and in respect of Indebtedness permitted by Section 6.03(vi) shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, the Borrower and the Guarantors (other than the property that is subject to valid, perfected and non-voidable existing Liens in existence at that presently secure the time obligations of the commencement Borrower and the Guarantors under the Existing Agreement, as to which the Lien in favor of the Cases or Agent and the Banks will be as described in clause (iv) of this sentence) that is subject to valid and perfected Liens in existence at on the time of the commencement of the Cases that are perfected subsequent Filing Date, junior to such commencement as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debtvalid and perfected Liens, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, the Obligations of the Borrower and the Guarantors hereunder and under the Loan Documents and in respect of Indebtedness permitted by Section 6.03(vi) shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on all property of the Borrower and the Guarantors (including without limitation, accounts receivable, inventory, equipment, property, interests in leaseholds, intellectual property and the capital stock of such Loan Parties all direct or indirect Subsidiaries of the Borrower and the proceeds thereof) that is subject to the existing liens which Liens that presently secure the Borrower's and the Guarantors' pre-petition Indebtedness under the Existing Second Lien Debt (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by Agreement and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases Filing Date to provide adequate protection Liens in respect of any the Existing Agreement, subject only to (x) in the event of the Primed Liensoccurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both, the payment of allowed and unpaid professional fees and disbursements incurred by the Borrower, the Guarantors and any statutory committees appointed in the Cases in an aggregate amount not in excess of $2,500,000 and (y) the payment of unpaid fees pursuant to 28 U.S.C. ss. 1930 (collectively, the "Carve-Out"), provided that following the Termination Date 30 amounts in the Letter of Credit Account shall not be subject in each case to the Carve-Out and Out. The Banks agree that so long as set forth in no Event of Default or event which with the DIP Order giving of notice or lapse of time or both would constitute an Event of Default shall have occurred, the Borrower and the Intercreditor AgreementGuarantors shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. ss. 330 and 11 U.S.C. ss. 331, as the same may be due and payable, and the same shall not reduce the Carve-Out.
(a2) As to all real property the title to which is held by a Loan Party (other than the Borrower or any Loan Party that is not a Debtor) of the Guarantors, or the possession of which is held by the Borrower or any such Loan Party of the Guarantors pursuant to leasehold interest, such Loan Parties and which secures the obligations under the Existing Agreement, the Borrower and each Guarantor hereby assign assigns and convey conveys as security, grant grants a security interest in, hypothecatehypothecates, mortgagemortgages, pledge pledges and set sets over unto the Agent on behalf of the Lenders Banks all of the right, title and interest of the Borrower and such Loan Parties Guarantor in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of the Borrower and such Loan Parties Guarantor in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge The Borrower and each Guarantor acknowledges that, pursuant to the DIP OrderOrders, the Liens in favor of the Agent on behalf of the Lenders Banks in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties The Borrower and each Guarantor further agree agrees that, upon the request of the Agent, in the exercise of its business judgment, Borrower and such Loan Parties Guarantor shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms reasonably satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Brunos Inc)
Priority and Liens. (a) Subject to Section 2.20(c), each of the Loan Parties hereby covenants and agrees that, upon the entry of the DIP Order, its obligations hereunder and under the Loan Documents: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP Order; (ii) 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 (that is subject to the terms of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable 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 (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on all of the property of such Loan Parties that is subject to the existing liens which secure the Existing Second Lien Debt (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the 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, subject in each case to the Carve-Out and as set forth in the DIP Order and the Intercreditor Agreement.
(ab) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(bc) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew New Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this SectionSection 2.20 with respect to the Facilities shall be effective and perfected upon entry of the DIP Order.
(cd) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.
Appears in 1 contract
Samples: Debtor in Possession Loan Agreement (Eastman Kodak Co)
Priority and Liens. Each Borrower hereby covenants, represents and warrants that, upon entry of the Order:
(a) Subject to Section 2.20(c), each The provisions of the Loan Parties hereby covenants Collateral Documents and agrees thatthe Order are effective to create in favor of Agent, upon for the entry benefit of Lenders, a legal, valid, perfected and enforceable security interest in all right, title and interest of the DIP Borrowers in the Collateral described therein (having the priority provided for herein, therein and in the Order, its obligations hereunder and under the Loan Documents: ).
(ib) pursuant Pursuant to Section 364(c)(1) of the Bankruptcy CodeCode and the Order, shall the Obligations at all times will constitute an allowed a Superpriority Claim in each of the Cases, having priority over all administrative expenses of the kind specified in Section 503(b) or 507(b) of the Bankruptcy Code, subject only to any limitations set forth in the DIP Order; Carve-Out.
(iic) pursuant Pursuant to Section 364(c)(2) of the Bankruptcy CodeCode and the Order, shall at all times the Obligations will be secured by a valid, binding, continuing, enforceable perfected first priority perfected Lien (that is subject to on the terms of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, Collateral that is not encumbered by Liens in favor of any other Person, subject only to valid, perfected, nonPermitted Liens and the Carve-voidable liens in existence at the time of commencement of the Cases or Out.
(d) Pursuant 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(bsection 364(c)(3) of the Bankruptcy Code (limitedand the Order, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall Obligations will be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable 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 (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on all of the property of such Loan Parties that is subject to the existing liens which secure the Existing Second Lien Debt (collectively, the “Primed Liens”), all of which Primed Liens shall be primed Collateral encumbered by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the 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 Filing Date Liens, subject in each case only to the (A) Filing Date Liens, (B) the Carve-Out and as set forth in the DIP (C) Permitted Liens.
(e) The Order and the Intercreditor Agreement.
(a) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is transactions contemplated hereby and thereby, are in full force and effect and have not a Debtor) been vacated, reversed, modified, amended or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected stayed without the recordation prior written consent of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c)Requisite Lenders.
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Mirant Corp)
Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties Borrowers hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Final Order, its obligations the Obligations of the Borrowers hereunder and under the Loan Documents: Documents and in respect of Indebtedness permitted by Section 6.3(v): (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (ii) 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 unencumbered property of the Borrowers and on all cash maintained in the Letter of Credit Account and any direct investments of the funds contained therein, provided that is following the Termination Date, amounts in the Letter of Credit Account shall not be subject to the terms of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, nonCarve-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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests)Out; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, the Borrowers that is subject to valid, valid and perfected and non-voidable Liens in existence at on the time of the commencement of the Cases Filing Date or that is subject to valid Liens in existence at on the time of the commencement of the Cases Filing Date that are perfected subsequent to such commencement the Filing Date as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv))Code; and in addition, (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on all of the property of such Loan Parties the Borrowers (including, without limitation, inventory, receivables, rights under license agreements, and property, plant and equipment) that is subject to the existing liens which secure (x) the Existing Second Lien Debt obligations of the Parent Borrower and certain of the Subsidiary Borrowers under or in connection with the Pre-Petition Credit Agreement, and (y) other obligations or indebtedness of the Borrowers pursuant to other agreements in an aggregate amount in excess of $2,500,000 (collectively, the “"Primed Liens”"), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Administrative Agent, which senior priming Liens in favor of the Administrative Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens but shall not prime Liens, if any, to the extent such Liens secure obligations (other than obligations under the Pre-Petition Credit Agreement) in an aggregate amount less than or equal to $2,500,000; subject in each case only to (x) in the event of the occurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both (a "Default"), the payment of allowed and unpaid professional fees and disbursements incurred by the Borrowers and any statutory committees appointed in the Cases in an aggregate amount not in excess of $3,000,000 (plus the amount set forth in the most recent Borrowing Base Certificate delivered by the Borrowers to the Administrative Agent of then unpaid professional fees and expenses incurred prior to the occurrence of a Default or an Event of Default to the extent that such unpaid fees and expenses are subsequently allowed by the Bankruptcy Court), and (y) the payment of fees pursuant to 28 U.S.C. ss. 1930 and to the Clerk of the Bankruptcy Court (collectively, the "Carve-Out"), provided that no portion of the Carve-Out shall be utilized for the payment of professional fees and disbursements incurred in connection with any challenge to the amount, extent, priority, validity, perfection or enforcement of the Indebtedness of the Borrowers owed with respect to the parties primed by the priming Liens or to the collateral securing such Indebtedness or any other action against such parties. Amounts in the Letter of Credit Account shall not be subject to the Carve-Out Out. By execution hereof, the Borrowers hereby consent to the priming Liens referenced in clause (iv) above. Notwithstanding the foregoing, so long as no Default or Event of Default shall have occurred and be continuing, the Borrowers shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. ss.ss. 328, 330 and 331, as the same may be due and payable, and xxx compensation and expenses previously paid, or accrued but unpaid, prior to the occurrence of such Default or Event of Default shall not reduce the Carve-Out.
(b) Subject to the priorities set forth in the DIP Order and the Intercreditor Agreement.
subsection (a) As above and to the Carve-Out, as to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) Borrower, or the possession of which is held by any such Loan Party a Borrower pursuant to leasehold interest, such Loan Parties the Parent Borrower and each of the Subsidiary Borrowers hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Administrative Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties the Borrowers, in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties the Borrowers in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties The Parent Borrower and each of the Subsidiary Borrowers acknowledge that, pursuant to the DIP Interim Order (or the Final Order, as applicable), the Liens in favor of the Administrative Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties the Borrowers shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties The Parent Borrower and each of the Subsidiary Borrowers further agree that, upon the request of the Administrative Agent, in the exercise of its business judgment, such Loan Parties the Parent Borrower and each of the Subsidiary Borrowers shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c)Administrative Agent.
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything To the extent any Borrower makes aggregate payments to the contrary herein, not more than 65% Lenders in excess of the voting equity interests aggregate amount of any CFC or a Subsidiary all Loans received by such Borrower from the Lenders after the commencement of a CFC the Cases, then such Borrower, after the payment in full of all obligations of the Borrowers in respect of the Commitment and the termination of the Commitment, shall be pledged entitled to a claim under Section 364(c)(1) of the Bankruptcy Code against each other Borrower, in favor such amount as may be determined by the Bankruptcy Court taking into account the relative benefits received by each such person, and such claims shall be deemed to be subordinate and junior in all respects to the superpriority claims of any Lender or the AgentLenders and the superpriority claims granted as adequate protection to the Primed Parties.
Appears in 1 contract
Samples: Revolving Credit Agreement (Interstate Bakeries Corp/De/)
Priority and Liens. (a) Subject to Section 2.20(cThe Loan Parties hereby covenant, represent and warrant that, upon entry of the Interim Order (and the Final Order), each the Obligations of the Loan Parties hereby covenants and agrees that, upon the entry of the DIP Order, its obligations hereunder and under the other Loan Documents: Documents and the Orders, (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, Code shall at all times constitute an allowed be entitled to joint and several Superpriority Claim status in the Cases, subject to any limitations set forth in the DIP Order; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, Code shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (lien on all property of the Debtors that is subject to the terms of the Intercreditor Agreement Released Liens and DIP Order) on all of the other property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, perfected and non-voidable avoidable liens as of the Closing Date, (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code shall be secured by a perfected junior lien on all property of the Debtors that is subject to valid, perfected and non-avoidable liens in existence at the time of the commencement of the Cases or to valid, non-voidable valid 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable 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 (other than certain property that is subject to the existing Released Liens that secure obligations in respect of the Existing Second Lien Debt, and which liens shall property will be primed by covered under the liens described in granted to the following clause Administrative Agent and the Lenders under paragraph (ivii) above)); , and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, Code shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien lien on all of the property of such Loan Parties the Debtors that is subject to the existing liens which secure that are junior to the Existing Second Lien Debt (collectively, the “Primed Released Liens”), all of which existing liens (the "Primed Liens Liens") shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens liens to be granted to the AgentAdministrative Agent and the Lenders, which senior priming Liens liens in favor of the Administrative Agent and the Lenders shall also prime any Liens liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any Permitted Liens but shall not prime liens, if any, to which the Primed Liens were subject at the time of the Primed Lienscommencement of the Cases, subject and subordinate in each case with respect to subclauses (i) through (iv) above, only to the Permitted Liens and the fees and expenses subject to the Administrative Expense Carve-Out and as set forth in the DIP Order and payments subject to the Intercreditor AgreementEmployee Plans Carve-Out.
(ab) As to all Collateral, including without limitation, all cash, Cash Equivalents and real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) Party, or the possession of which is held by any such Loan Party pursuant to in the form of a leasehold interest, such Loan Parties Party hereby assign assigns and convey conveys as security, grant grants a security interest in, hypothecatehypothecates, mortgagemortgages, pledge pledges and set sets over unto the Administrative Agent on behalf of the Lenders all of the right, title and interest of the Borrower and such Loan Parties Guarantor in all of such Collateral, including without limitation, all cash, Cash Equivalents and owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of the Borrower and such Loan Parties Guarantor in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties The Borrower and each Guarantor acknowledge that, pursuant to the DIP OrderOrders, the Liens granted in favor of the Administrative Agent (on behalf of the Lenders Lenders) in all of such real property and leasehold instruments of such Loan Parties the Collateral shall be perfected without the recordation of any Uniform Commercial Code financing statements, notices of Lien or other instruments of mortgage or assignment. Such Loan Parties The Borrower and each Guarantor further agree that, upon that (a) the request Administrative Agent shall have the rights and remedies set forth in Section 10 in respect of the Collateral and (b) if requested by the Administrative Agent, in the exercise Borrower and each of its business judgment, such Loan Parties the Guarantors shall enter into separate security agreements, pledge agreements and fee and leasehold mortgages in recordable form with respect to such properties Collateral on terms reasonably satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Administrative Agent.
Appears in 1 contract
Samples: Term Loan, Revolving Credit, Guarantee and Security Agreement (Mississippi Chemical Corp /MS/)
Priority and Liens. (a) Subject to Section 2.20(c), The Borrower and each of the Loan Parties Guarantors hereby covenants covenants, represents and agrees warrants that, upon the entry of any of the DIP OrderOrders, its obligations the Obligations of the Borrower and the Guarantors hereunder and under the Loan Documents: Documents and in respect of Indebtedness permitted by Section 6.03(v): (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim administrative expense claims in the CasesCases having priority over all administrative expenses of the kind specified in Sections 503(b) or 507(b) of the Bankruptcy Code, subject to any limitations except as set forth in the DIP Orderthis Section 2.21; (ii) 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 (that is subject on all unencumbered property of the Borrower and the Guarantors and on all cash maintained in the Letter of Credit Account and any direct investments of the funds contained therein and with respect to the terms of the Intercreditor Agreement and DIP Order) on all of the property of such Loan PartiesForeign Subsidiaries, whether now existing or hereafter acquired, 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 (limited, in the case of voting equity interests of CFC’s, 65100% of the voting equity interestscapital stock of such Foreign Subsidiaries (but not including any liens on the underlying assets of the Foreign Subsidiaries); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, the Borrower and the Guarantors (other than the property that is subject to valid, perfected and non-voidable existing Liens in existence at that presently secure the time obligations of the commencement Borrower and the Guarantors under the Existing Agreement, as to which the Lien in favor of the Cases or Agent and the Lenders will be as described in clause (iv) of this sentence) that is subject to valid and perfected Liens in existence at on the time of Filing Date or to valid Liens in existence on the commencement of the Cases Filing Date that are perfected subsequent to such commencement the Filing Date as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject or to the existing Liens that secure obligations in respect of the Existing Second Lien DebtPermitted Liens, which liens shall be primed by the liens described in the following clause (iv))junior to such valid and perfected Liens; and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on all of the tangible and intangible property of such Loan Parties the Borrower and the Guarantors (including without limitation, accounts receivable, inventory, patents, copyrights, trademarks, tradenames and all other intellectual property, and the capital stock of all direct subsidiaries of the Borrower and each Guarantor and the proceeds thereof) that is subject to the existing liens which Liens that presently secure the Borrower's and the Guarantors' pre-petition Indebtedness under the Existing Second Lien Debt Agreement (collectively, but subject to any Liens in existence on the “Primed Liens”), all of Filing Date to which Primed the Liens shall be being primed by and made hereby are subject and subordinate to (or become subject subsequent to the extent set forth in the DIP OrderFiling Date as permitted by Section 546(b) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime Bankruptcy Code, hereinafter referred to as the "Existing Liens") and any Liens granted after the commencement of the Cases Filing Date to provide adequate protection Liens in respect of any the Existing Agreement, subject only to (w) in the event of the Primed Liensoccurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both, subject the payment of allowed and unpaid professional fees and disbursements incurred by the Borrower, the Guarantors and any statutory committees appointed in each case the Cases in an aggregate amount not in excess of $500,000 (plus all unpaid professional fees and disbursements incurred prior to the occurrence of an Event of Default or the date the Post-petition Lenders determine to stop making Post-petition Loans to the extent allowed by the Bankruptcy Court) and (x) the payment of unpaid fees pursuant to 28 U.S.C. ss. 1930 and to the Clerk of the Bankruptcy Court (collectively, the "Carve-Out"); provided that neither the super-priority claims and DIP liens, nor the adequate protection claims or liens shall have recourse to any claims and/or causes of action under Section 27 502(d), 544, 547, 548, 549, 550 or 551 of the Bankruptcy Code as to avoidance actions (the "Avoidance Actions") or the proceeds thereof; and further provided, that, except as otherwise provided in the Orders, no portion of the Carve-Out or the Wind Down Reserve (as defined in Section 2.21(c) below) shall be utilized for the payment of professional fees and disbursements incurred in connection with any challenge to the amount, extent, priority, validity, perfection or enforcement of the indebtedness of the Borrower and the Guarantors owing to the Existing Lenders or to the collateral securing such indebtedness. The Lenders agree that so long as no Event of Default shall have occurred, (or the Lenders, nonetheless determine, in their sole discretion, to continue to make loans) the Borrower and the Guarantors shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. ss. 330 and 11 U.S.C. ss. 331, as the same may be due and payable, and the same shall not reduce the Carve-Out; (y) the Wind Down Reserve as defined in Section 2.21(c)(ii); and (z) (any and all funds held and/or deposited in the payroll accounts currently established by the Debtors, or such other accounts established by the Debtors (collectively, the "Wage Accounts") for employee wages and commissions, payroll taxes, vacation accrual, claims for self-insured claims and all other employee benefits and other withholdings from employee's wages (collectively, "Payroll Expenses") shall not be subject (except as set forth in the DIP Order next paragraph) to the liens or claims of the Agent, the Lenders, the Pre-Petition Agent and the Intercreditor AgreementExisting Lenders, granted herein or otherwise and may be paid by the Debtors in the ordinary course; provided, however, that the aggregate of the funds in all such Wage Accounts at any time shall not exceed the total of (i) the funds in such accounts as of the Filing Date plus (ii) the funds set forth in the Budget as of such date for payment of the Payroll Expenses. The amounts in the Wage Accounts shall be established as a reserve and used solely for the following and in the following order and for no other purposes: (i) for Payroll Expenses; (ii) vacation pay whether accrued pre-petition or post-petition; and (iii) payment of medical claims under the Debtors' self-insurance programs, the foregoing Subsections (i), (ii) and (iii), collectively, the "Permitted Employee Programs."
(b) Subject to the priorities set forth in subsection (a) As above and to the Carve-Out, as to all real property the title to which is held by a Loan Party (other than the Borrower or any Loan Party that is not a Debtor) of the Guarantors, or the possession of which is held by the Borrower or any such Loan Party of the Guarantors pursuant to leasehold interest, such Loan Parties and which secures the obligations under the Existing Agreement, the Borrower and each Guarantor hereby assign assigns and convey conveys as security, grant grants a security interest in, hypothecatehypothecates, mortgagemortgages, pledge pledges and set sets over unto the Agent on behalf of the Lenders all of the right, title and interest of the Borrower and such Loan Parties Guarantor in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of the Borrower and such Loan Parties Guarantor in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge The Borrower and each Guarantor acknowledges that, pursuant to the DIP OrderOrders, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties The Borrower and each Guarantor further agree agrees that, upon the request of the Agent, in the exercise of its business judgment, Borrower and such Loan Parties Guarantor shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms reasonably satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c)Agent.
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein:
(i) any funds in the Wage Accounts not used for the Permitted Employee Program Payments as defined in Section 2.21(a), not more than 65% shall be subject to the liens and claims of the voting equity interests Post-Petition Agent and, the Lenders and to the valid and perfected liens of, the Pre-Petition Agent and the Existing Lenders; and
(ii) following an Asset Sale as defined in Section 5.12, the distribution of Net Proceeds shall (to the extent of such proceeds) be as follows: (V) first, the superpriority claims and liens of the Lenders pursuant to Sections 364(c)(1), (2) and (3) and 364(d) of the Bankruptcy Code with respect to the Loans and all accrued interest thereon and all unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder and under any other Loan Document shall be paid in full; (W) second, the adequate protection claims and liens of the Pre-Petition Agent and the Existing Lenders under Sections 506(a), 507(b) and 553 of the Bankruptcy Code to the extent of any CFC or a Subsidiary diminution in the value of a CFC the Pre-Petition Collateral shall be pledged paid in favor full; (X) third, the allowed administrative expense claims under Section 503(b) and 507(b) of the Bankruptcy Code for goods and/or services furnished to the Borrower or the Guarantors from the period commencing on or after the Filing Date and ending on the Maturity Date or if the Lenders continue to fund subsequent thereto, then the date on which the Lenders cease making Loans (but not including any such claims payable from the Carve Out or the Wage Accounts as defined below) and a reserve shall be set aside (the "Wind Down Reserve") as set forth in Section 2.21(c)(iii) below for the necessary costs and expenses and allowed fees and disbursements of winding-down the estates of the Borrowers and Guarantors (the "Estates" (including but not limited to the fees and expenses of any Lender Chapter 7 trustee and its professionals) appointed by the Bankruptcy Court subsequent to such Asset Sale (the "Wind Down Expenses"); (Y) fourth, in the event of an Asset Sale (as set forth in Section 5.12) as a going concern to the fund for the benefit of the Estate in the amount of $350,000 (the "Fund"), provided that in the event of any other Asset Sale, the Fund shall be reduced to $175,000, and provided, further, the Unofficial Committee of Unsecured Creditors waives any claims, objections or challenges to the pre-petition fees and expenses paid to the Agent, the Lenders, the Pre-Petition Agent and/or the Existing Lenders in the amount of and to the extent of the Fund, (Z) fifth, the valid and perfected liens of the Existing Lenders with respect to Borrower's obligations under the Existing Agreement shall be paid subject to any Existing Liens as defined in Section 2.21(a); and (AA) sixth, to the extent of any remaining proceeds, such proceeds shall be paid to the Estates.
(iii) the Borrower shall establish a Wind-Down Reserve to be held by the Agent in the amount of $200,000, which shall constitute the sole and maximum obligation of the Lenders and the Existing Lenders for Wind Down Expenses. To the extent that the actual Wind Down Expenses exceed the amount of the proceeds remaining in the Estates subsequent to the disposition(s) referred to in Section 2.21(c)(ii) above, the Wind Down Reserve shall be applied against such amounts. Any funds remaining in the Wind Down Reserve after its application to the actual Wind Down Expenses not paid for out of proceeds from the application of Section 2.21(c)(ii) shall be promptly paid to the Pre-Petition Lenders for the benefit of the Estates.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Act Manufacturing Inc)
Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties hereby covenants and agrees that, that upon the entry of of, and subject to, an Interim Order (and when applicable, the DIP Final Order) and subject to the Carve Out in all respects, its obligations hereunder and under the Loan DocumentsObligations: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed DIP Superpriority Claim Claims in the Cases, subject to any limitations set forth which DIP Superpriority Claims in respect of the DIP OrderCredit Facility shall rank pari passu with each other; (ii) 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 (that is subject to the terms of the Intercreditor Guarantee and Collateral Agreement and DIP Orderthe Orders but which will, in any event, be subject to the Carve Out) on (x) the DIP Proceeds Account (including all cash and cash equivalents held therein, and proceeds disbursed in contravention of this Agreement) and (y) Avoidance Actions, and the property proceeds of such Loan PartiesAvoidance Actions that, whether now existing or hereafter acquiredin the case of this clause (y), that is are not subject to valid, perfected, perfected and non-voidable liens in existence at avoidable pre-petition Liens (this clause (ii), 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests“DIP Priority Collateral”); and (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of Collateral (as defined in the Prepetition Credit Agreements), other than Excluded Assets, to the extent such Loan Parties, whether now existing or hereafter acquired, that Collateral is subject to a valid, perfected and non-voidable Liens in existence at avoidable Lien securing the time of Prepetition Credit Agreements (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 (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens assets described in the following clause clauses (iv)); ii) and (iviii) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on all of the property of such Loan Parties that is subject to the existing liens which secure the Existing Second Lien Debt (collectivelyabove, the “Primed LiensDIP Collateral”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the 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, subject in each case to the Carve-Out and as set forth in the DIP Order and the Intercreditor Agreement.
(a) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 2.22 with respect to the DIP Collateral shall be as set forth in the DIP Interim Order (and, when entered, the Final Order) and the Intercreditor Guarantee and Collateral Agreement. The relative priorities of In accordance with the First Lien First Out LoansInterim Order (or, once entered, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All Final Order), all of the Liens described in this SectionSection 2.22 shall be effective and perfected upon entry of the Interim Order, without the necessity of the execution, recordation of filings by the Debtors of security agreements, control agreements, pledge agreements, financing statements or other similar documents, or the possession or control by the Administrative Agent or Collateral Agent, as applicable, of, or over, any DIP Collateral, as set forth in the Interim Order.
(c) Notwithstanding anything Each Loan Party that is a Debtor hereby confirms and acknowledges that, pursuant to the contrary hereinInterim Order (and, not more than 65% of when entered, the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged Final Order), the Liens in favor of the Collateral Agent on behalf of and for the benefit of the Secured Parties in all of the DIP Collateral, but in any Lender case, excluding any Excluded Assets (but including Avoidance Actions and the proceeds of Avoidance Actions), which includes, without limitation, all of such Debtor’s real estate assets (other than Excluded Assets), now existing or hereafter acquired, shall be created and perfected without the Agentrecordation or filing in any land records or filing offices of any mortgage, assignment or similar instrument.
Appears in 1 contract
Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties hereby covenants and agrees that, that upon the entry of of, and subject to, the DIP OrderOrder and subject to the Carve-Out in all respects, its obligations hereunder and under the Loan DocumentsObligations: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject only to the Carve-Out and having priority over any limitations set forth and all other administrative expenses, diminution claims and all other priority claims against the Debtors, now existing or hereafter arising, of any kind whatsoever, including, without limitation, all other administrative expenses of the kind specified in sections 503(b) and 507(b) of the Bankruptcy Code, and over any and all other administrative expenses or other claims arising under sections 105, 326, 328, 330, 331, 365, 503(b), 506(c) (subject only to and effective upon entry of the DIP Order; ), 507(a), 507(b), 726, 1113 or 1114 of the Bankruptcy Code, which Superpriority Claims in respect of the Facility shall rank pari passu with each other and (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (that is subject to the terms of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable 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 (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1364(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 property of such Loan Parties that is subject Collateral, which Liens shall be senior to the existing liens which secure the Existing Second Lien Debt Liens (collectively, the “Primed Liens”), all of ) securing the Pre-Petition ABL Credit Facility and any Liens to which the Primed Liens shall be primed by are senior or rank pari passu, and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens to the extent of any diminution in the value of the collateral of the Primed Liens as provided in the DIP Order in respect of any of the Primed Liens, subject in each case only to (1) Permitted Liens that are valid, binding, enforceable, perfected and unavoidable Liens in favor of third parties that were in existence immediately prior to the Petition Date and that are not impaired, affected or modified by the DIP Order and/or that have priority after the Petition Date by operation of Law, (2) the Carve-Out and (3) and as otherwise set forth in the DIP Order (the “Priming Liens”) and the Intercreditor Agreement.
(a) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverablesperfection, including, without limitation, a Standard Flood Hazard Determination and, solely to the extent applicableit may be achieved by the entry of the DIP Order and the perfection steps required to be taken under the Collateral Documents; it being agreed that such Collateral shall exclude claims and causes of action under sections 502(d), a notification 544, 545, 547, 548, 550 and 553 of the Bankruptcy Code (collectively “Avoidance Actions”) but include, subject to the applicable Loan Party that that flood insurance coverage under entry of the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with Final Financing Order by the requirements set forth in Section 5.01(c)U.S. Bankruptcy Court, the proceeds thereof.
(b) The Priming Liens, (i) shall be subject and junior to the Carve-Out in all respects, (ii) shall be junior to Liens that are senior to the Primed Liens (unless such Liens are themselves Primed Liens), (iii) shall be senior to any Liens to which the Primed Liens are senior or rank pari passu, (iv) shall be senior in all respects to the interests of such property of the holders of the obligations in respect of the Primed Liens and (v) shall also be senior to any Liens granted after the Petition Date to provide adequate protection in respect of the Primed Liens.
(c) The relative priorities of the Liens described in this Section 2.20 2.17 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor AgreementCollateral Documents. The relative priorities In accordance with the DIP Order, all of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans Liens described in this Section 2.17 shall be effective and perfected upon entry of the DIP Order, without the necessity of the execution, recordation or filings by the Debtors of security agreements, control agreements, financing statements or other similar documents, or the possession or control by the Administrative Agent of, or over, any Collateral, as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the AgentOrder.
Appears in 1 contract
Samples: Superpriority Secured Debtor in Possession Credit Agreement (iHeartMedia, Inc.)
Priority and Liens. At all times during the term hereof:
(a) Subject to Section 2.20(c), each of the Loan Parties The Borrower hereby covenants represents and agrees that, warrants that upon the entry of the each DIP Order, its obligations Obligations hereunder and the Obligations of each Debtor under the other Loan Documents: :
(i) pursuant to Section section 364(c)(1) of the Bankruptcy CodeCode and subject to the Carve-Out, shall at all times constitute an allowed Superpriority Claim on a joint and several basis in the Cases, subject to any limitations set forth in the DIP Order; Case of such Loan Party;
(ii) pursuant to Section section 364(c)(2) of the Bankruptcy CodeCode and subject to the Carve-Out, shall at all times be secured by a first priority, valid, binding, continuingenforceable and perfected security interests in, enforceable perfected first priority Lien (and Liens upon, all unencumbered tangible and intangible property of such Loan Party, including any such property that is subject to valid and perfected Liens in existence on the terms Petition Date, which Liens are thereafter released or otherwise extinguished in connection with the satisfaction of the Intercreditor Agreement obligations secured by such Liens (collectively, the “DIP Collateral”) (excluding (x) assets of deferred compensation plans for financial advisors and (y) any Avoidance Actions (but including the proceeds therefrom); provided that, to the extent that the Bankruptcy Court grants a Lien on the proceeds of Avoidance Actions, the Administrative Agent and the Lenders shall use their best efforts to first use other DIP OrderCollateral other than the proceeds of Avoidance Actions to repay the Obligations;
(iii) on all of the property of such Loan Parties, whether now existing or hereafter acquired, that is not subject pursuant 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(bsection 364(c)(3) of the Bankruptcy Code (limited, in and subject to the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section 364(c)(3) of the Bankruptcy CodeCarve-Out, shall at all times be secured by a junior, valid, binding, continuingenforceable and perfected security interests in, enforceable perfected second Lien upon and Liens upon, all (A) property of such Loan PartiesParty’s estates that, whether now existing or hereafter acquiredon the Petition Date, that is was subject to valida valid and perfected Lien (other than the Liens securing Indebtedness under the Pre-Petition Debt Documents) or becomes subject to a valid Lien perfected (but not granted) after the Petition Date to the extent such post-Petition Date perfection in respect of prepetition claims is expressly permitted under the Bankruptcy Code (the “Permitted Prior Liens”), perfected and non-voidable Liens in existence at the time (B) property of the commencement of the Cases or such Loan Party’s estates that is subject to valid rights of setoff, and (C) property of such Loan Party’s estates that is subject to such other Liens as are expressly permitted under Xxxxxxx 0.00(x), (x), (x), (x), (x), (x), (x), (x), (x), (x) or (p) (such Liens described in existence at this clause (C), along with the time Permitted Prior Liens, the “DIP Permitted Liens”); provided that the Liens granted under the Loan Documents shall not be subject or subordinate to (1) notwithstanding anything to the contrary in the Loan Documents or the DIP Orders, any DIP Permitted Lien or security interest that is avoided and preserved for the benefit of the commencement Loan Parties and their estates, (2) except as provided in the DIP Orders and the Loan Documents, any Liens arising after the Petition Date including, any Liens or security interests granted in favor of any federal, state municipal or other governmental unit, commission, board or court for any liability of the Cases that are perfected subsequent Loan Parties; (3) any intercompany or affiliate Liens of the Loan Parties or (4) the Liens of the Pre-Petition First Lien Loan Documents or the Pre-Petition Second Lien Loan Documents; and
(iv) pursuant to such commencement as permitted by Section 546(bsection 364(d)(1) of the Bankruptcy Code (other than certain property that is and subject only to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1) of the Bankruptcy CodeCarve-Out, shall at all times be secured by a first priority, priming, valid, binding, continuingenforceable and perfected security interests in, enforceable perfected first priority senior priming Lien on all and Liens upon, the DIP Collateral of each Loan Party (the property “Priming Liens”) to the extent the DIP Collateral is subject to existing liens that secure the obligations of such Loan Parties that is subject to Party under the existing liens which secure the Existing Second Lien Pre-Petition Debt Documents (collectively, the “Primed Liens”). The Priming Liens (x) shall be senior in all respects to the interests in such property of the Pre-Petition First Lien Lenders and the Pre-Petition Second Lien Lenders under the applicable Pre-Petition Debt Documents (and of the other “secured parties” referenced therein) and the related security documents, all and (y) shall also be senior to any liens granted to provide adequate protection in respect of which any of the Primed Liens. The Primed Liens shall be primed by and made subject and subordinate to (the Priming Liens, but the Priming Liens shall not prime liens, if any, to which the extent set forth in Primed Liens are subordinate at the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor time of the Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Cases.
(b) The Secured Parties’ Liens and Superpriority Claim as described in respect of Section 2.20(a) shall have priority over any claims arising under sections 105 and/or 506(c) of the Primed LiensBankruptcy Code, and shall be subject in each case only to the Carve-Out and Out. Except as set forth in herein, no other claim having a priority superior to or pari passu with that granted to Secured Parties by the Interim DIP Order and the Intercreditor AgreementFinal DIP Order, whichever is then in effect, shall be granted or approved while any Obligations under this Agreement remain outstanding.
(ac) As to all real property Except for the title to which is held by a Loan Carve-Out, no costs or expenses of administration shall be imposed against the Administrative Agent, the Lenders, any other Secured Party (other than or any Loan Party that is not a Debtorof the Collateral under sections 105 or 506(c) of the Bankruptcy Code, or otherwise, and the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties Borrower hereby assign waives for itself and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of its estate in bankruptcy, any and all rights under sections 105 or 506(c) of the Bankruptcy Code, or otherwise, to assert or impose or seek to assert or impose, any such costs or expenses of administration against Administrative Agent, the Lenders or any other Secured Party.
(d) Except for the Carve-Out, the Superpriority Claims shall at all of times be senior to the right, title and interest rights of such Loan Parties in all of such owned real property and in all such leasehold interestsParty, together in each case with all any chapter 11 trustee and, subject to section 726 of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related theretoBankruptcy Code, any lease chapter 7 trustee, or sublease thereofany other creditor (including, all general intangibles relating thereto without limitation, post-petition counterparties and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, other post-petition creditors) in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to Cases or any subsequent proceedings under the Agent and including customary related deliverablesBankruptcy Code, including, without limitation, a Standard Flood Hazard Determination and, any chapter 7 cases (if any of such Loan Party’s cases are converted to cases under chapter 7 of the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(cBankruptcy Code).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.
Appears in 1 contract
Samples: Superpriority Secured Debtor in Possession Term Loan Agreement (RCS Capital Corp)
Priority and Liens. At all times:
(a) Subject to Section 2.20(c)Each Debtor hereby covenants, each of the Loan Parties hereby covenants represents and agrees that, warrants that upon the entry of the each DIP Order, its obligations the Obligations of such Debtor hereunder and under the Loan Documents: :
(i) pursuant to Section section 364(c)(1) of the Bankruptcy CodeCode and subject and subordinate only to the Carve-Out, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP Order; Claims;
(ii) pursuant to Section section 364(c)(2) of the Bankruptcy CodeCode and subject and subordinate only to the Carve-Out, shall at all times be secured by a first priority (subject to the ABL Intercreditor Agreement), valid, binding, continuingenforceable and perfected security interests in, enforceable perfected first priority Lien (and Liens upon, all unencumbered tangible and intangible property of such Debtor including any such property that is subject to valid and perfected Liens in existence on the terms Petition Date, which Liens are thereafter released or otherwise extinguished in connection with the satisfaction of the Intercreditor Agreement and DIP Order) on all obligations secured by such Liens (including, without limitation, subject to the entry of the Final Order, the proceeds of avoidance actions under Chapter 5 of the Bankruptcy Code));
(iii) pursuant to section 364(c)(3) of the Bankruptcy Code and subject to the Carve-Out, shall at all times be secured by junior, valid, binding, enforceable and perfected security interests in, and Liens upon, all property of such Loan Partieseach of the Debtor’s estates that, whether now existing or hereafter acquiredon the Petition Date, that is not was subject to valid, perfected, nona valid and perfected Lien (other than the Liens securing the Prepetition Indebtedness) or becomes subject to a valid Lien perfected (but not granted) after the Petition Date to the extent such post-voidable liens Petition Date perfection in existence at the time respect 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 prepetition claims is expressly permitted by Section under section 546(b) of the Bankruptcy Code (limitedthe “Permitted Prior Liens”); provided that the Liens granted under the Loan Documents shall not be subject or subordinate to (1) notwithstanding anything to the contrary in the Loan Documents or the DIP Orders, any security interest that is avoided and preserved for the benefit of the Debtors and their estates, (2) except as provided in the DIP Orders and except for any Collateral subject to the Permitted Prior Liens, any Liens arising after the Petition Date including, any Liens or security interests granted in favor of any federal, state municipal or other governmental unit, commission, board or court for any liability of the Debtors; or (3) any intercompany or affiliate Liens of the Debtors; and
(iv) pursuant to section 364(d)(1) of the Bankruptcy Code and subject only to the Carve-Out, shall at all times be secured by first priority (subject to the ABL Intercreditor Agreement), priming, valid, binding, enforceable and perfected security interests in, and Liens upon, all the Prepetition Collateral.
(b) The Secured Parties’ Liens and Superpriority Claims shall have priority over any claims, charges or liens arising under section 105, 326, 328, 330, 331, 503(b), 507(a), 726, 1113 or 1114 of the Bankruptcy Code, and shall be subject and subordinate only to (i) the Carve-Out and (ii) to the extent provided in the ABL Intercreditor Agreement, to the Liens securing the ABL Obligations; provided that, the superpriority claims of the ABL Agent provided by the DIP Orders shall be pari passu with the Superpriority Claims. Except as set forth herein, in the case DIP Orders, no other claim having a priority superior to that granted to the Secured Parties by the Interim Order and Final Order, whichever is then in effect, shall be granted or approved while any Obligations under this Agreement remain outstanding.
(c) Except for the Carve-Out, no costs or expenses of voting equity interests of CFC’sadministration shall be imposed against the Administrative Agent, 65% the Lenders, any other Secured Party or any of the voting equity interests); (iii) pursuant to Section 364(c)(3Collateral under sections 105 or 506(c) of the Bankruptcy Code, shall be secured by a validor otherwise, bindingand, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time entry of the commencement Final Order, each of the Cases Debtors hereby waives for itself and on behalf of its estate in bankruptcy, any and all rights under sections 105 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 (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1506(c) of the Bankruptcy Code, shall be secured by a validor otherwise, bindingto assert or impose or seek to assert or impose, continuing, enforceable perfected first priority senior priming Lien on all any such costs or expenses of administration against the property of such Loan Parties that is subject to the existing liens which secure the Existing Second Lien Debt (collectivelyAdministrative Agent, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to Lenders or any other Secured Party.
(to the extent set forth in the DIP Orderd) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the 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, subject in each case to Except for the Carve-Out Out, the Superpriority Claims shall at all times be senior to the rights of each Debtor, any chapter 11 trustee and, subject to section 726 of the Bankruptcy Code, any chapter 7 trustee, or any other creditor (including, without limitation, post-petition counterparties and as set forth other post-petition creditors) in the DIP Order and Chapter 11 Cases or any subsequent proceedings under the Intercreditor Agreement.
(a) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverablesBankruptcy Code, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
any chapter 7 cases (b) The relative priorities if any of the Liens described in this Section 2.20 with respect Debtor’s cases are converted to cases under chapter 7 of the Collateral shall be as set forth Bankruptcy Code), provided the superpriority claims of the ABL Agent provided in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans Orders shall be as set forth in pari passu with the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the AgentSuperpriority Claims.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Term Loan Agreement (Momentive Performance Materials Inc.)
Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties Borrowers hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Interim Order, its obligations the Obligations of the Borrowers hereunder and under the Loan Documents: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (ii) 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 any Collateral, including, without limitation all cash maintained in a cash collateral account with respect to outstanding Letter of Credit Obligations pursuant to Section 2.3(k) or Section 8.3 and any investments of the funds contained therein, that is not otherwise subject to a Lien, including any such property that is subject to valid and perfected Liens in existence on the terms Petition Date, which Liens are thereafter released or otherwise extinguished in connection with the satisfaction of the Intercreditor Agreement and DIP Order) on all of the property of obligations secured by such Loan Parties, whether now existing or hereafter acquired, 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests)Liens; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable fully perfected second first priority priming Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases or Collateral that is subject to valid and perfected Liens in existence at on the time of the commencement of the Cases that are perfected subsequent Petition Date, junior to such commencement as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv))valid and perfected Liens; and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable fully perfected first priority senior priming Lien on upon all of Collateral that secure the property of such Loan Parties that is subject obligations incurred pursuant to the existing liens which secure the Existing Second Lien Debt (collectivelyPrepetition First Priority Secured Facilities, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the 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, subject subordinated in each case with respect to clauses (i) through (iv) above (other than with respect to all cash maintained in a cash collateral account with respect to outstanding Letter of Credit Obligations pursuant to Section 2.3(k) and any investments of the funds contained therein) only to the Carve-Out and other Liens as set forth may be specified in the DIP Order Orders. Except for the Carve-Out, the Superpriority Claims of the Administrative Agent and the Intercreditor Agreement.
(a) As Lenders hereunder shall at all times be senior to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf rights of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related theretoBorrowers, any lease chapter 11 trustee and any chapter 7 trustee, or sublease thereofany creditor (including, all general intangibles relating thereto without limitation, post-petition counterparties and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, other post-petition creditors) in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to Cases or any subsequent proceedings under the Agent and including customary related deliverablesBankruptcy Code, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities any chapter 7 cases if any of the Liens described in this Section 2.20 with respect Borrowers’ Cases are converted to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities cases under chapter 7 of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the AgentBankruptcy Code.
Appears in 1 contract
Priority and Liens. (a) Subject to the limitations and exclusions set forth in Section 2.20(c)9.01(e)(iii) hereof, each of the Loan Parties Borrower and each Guarantor hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Interim Order, its obligations the Obligations of the Borrower and such Guarantor hereunder and under the Loan Documents: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (ii) 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 unencumbered tangible and intangible property of the Borrower and such Guarantor and on all cash maintained in the L/C Cash Collateral Account and any investments of the funds contained therein, including any such property that is subject to valid and perfected Liens in existence on the terms Petition Date, which Liens are thereafter released or otherwise extinguished in connection with the satisfaction of the Intercreditor Agreement and DIP Order) on all of the property of obligations secured by such Loan Parties, whether now existing or hereafter acquired, 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 Liens (excluding any avoidance actions under the Bankruptcy Code (limited, in but including the case of voting equity interests of CFC’s, 65% of the voting equity interestsproceeds therefrom)); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all real, personal and mixed property of the Borrower and such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases or Guarantor that is subject to valid Liens and perfected liens in existence at on the time of the commencement of the Cases that are perfected subsequent Petition Date, junior to such commencement as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv))valid and perfected Liens; and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code), shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on upon all tangible and intangible property of the property of Borrower and such Loan Parties Guarantor that is subject to the existing liens which presently secure the Existing Second Lien Debt (collectivelyPre-Petition Secured Indebtedness, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the 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, subject subordinated in each case with respect to clauses (i) through (iv) above, only to the Carve-Out. Except for the Carve-Out having priority over the Obligations, the Superpriority Claims shall at all times be senior to the rights of the Borrower, each Guarantor, any chapter 11 trustee and, subject to section 726 of the Bankruptcy Code, any chapter 7 trustee, or any other creditor (including, without limitation, post-petition counterparties and as set forth other post-petition creditors) in the DIP Order and Cases or any subsequent proceedings under the Intercreditor Agreement.
(a) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverablesBankruptcy Code, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities any chapter 7 cases if any of the Liens described in this Section 2.20 with respect Borrower’s or the Guarantor’s cases are converted to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities cases under chapter 7 of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the AgentBankruptcy Code.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (Dana Corp)
Priority and Liens. (a) Subject The Loan Parties hereby covenant, represent and warrant that, upon entry of the Final Order and subject to Section 2.20(c)the terms thereof, each the Obligations of the Loan Parties hereby covenants and agrees that, upon the entry of the DIP Order, its obligations hereunder and under the other Loan Documents: , (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesClaims, subject to any limitations set forth in the DIP Order; (ii) 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 Collateral that is subject to the terms otherwise not encumbered by a valid perfected and non-avoidable Lien as of the Intercreditor Agreement Petition Date or a valid and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, 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 perfected Lien in existence at the time of such commencement that are is perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code Code, excluding (limited, in the case of voting equity interests of CFC’s, 65x) 35% percent of the total outstanding voting equity interests); Capital Stock of each new or existing Foreign Subsidiary and (y) avoidance actions but including the proceeds thereof, (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, Collateral that is subject to valid, perfected and non-voidable avoidable Liens in existence at on the time of the commencement of the Cases Petition Date 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 (other than certain property that is subject to secure the Prepetition Obligations) (but not granted) thereafter to the existing Liens that secure obligations extent such post-Petition Date perfection in respect of a pre-Petition Date claim is expressly permitted under the Existing Second Lien DebtBankruptcy Code, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on upon all of the property of such Loan Parties Collateral (x) that is subject to a valid Lien or security interest in effect on the existing liens which Petition Date to secure the Existing Second Prepetition Obligations, (y) that is subject to a Lien Debt granted after the Petition Date to provide adequate protection in respect of the Prepetition Obligations or (z) that is subject to a valid Lien in effect on the Petition Date that is junior to the Liens that secure the Prepetition Obligations, subject and subordinate in each case with respect to subclauses (i) through (iv) above, only to the Carve Out. For purposes hereof, the “Carve Out” shall mean the sum of (A) all fees required to be paid to the Clerk of the Bankruptcy Court and to the Office of the United States Trustee under section 1930(a) of title 28 of the United States Code, (B) the costs of administrative expenses not to exceed $50,000 in the aggregate that are permitted to be incurred by any Chapter 7 trustee pursuant to any order of the Bankruptcy Court following any conversion of any of the Cases pursuant to section 1112 of the Bankruptcy Code, and (C) at any time after the first Business Day following delivery of a Carve-Out Trigger Notice, to the extent allowed at any time, whether before or after delivery of a Carve-Out Trigger Notice, whether by interim order, procedural order or otherwise, all unpaid fees, costs and expenses (collectively, the “Primed LiensProfessional Fees”) incurred by persons or firms retained by the Debtors pursuant to Section 327, 328 or 363 of the Bankruptcy Code and any official committee of unsecured creditors appointed in the Cases pursuant to Section 1103 of the Bankruptcy Code (collectively, the “Professional Persons”), the payment of all Professional Fees incurred by the Professional Persons at any time after the first Business Day following delivery of which Primed Liens shall be primed a Carve-Out Trigger Notice in an aggregate amount not exceeding $15,000,000 (the “Carve- Out Cap”) (plus all unpaid Professional Fees allowed at any time by and made subject and subordinate to (the Bankruptcy Court, whether before or after delivery of a Carve-Out Trigger Notice, whether by interim order, procedural order or otherwise, that were incurred by the Professional Persons on or prior to the extent set forth in first Business Day following the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor delivery of the 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, subject in each case to the Carve-Out Trigger Notice), provided that (x) the Carve Out shall not be available to pay any such Professional Fees incurred in connection with the initiation or prosecution of any Prohibited Claims or the initiation or prosecution of any claims, causes of action, adversary proceedings or other litigation against the Administrative Agent, the Lenders, the Prepetition Lenders or the Prepetition Agent and as set forth (y) the Carve Out shall not be reduced by the payment of Professional Fees incurred prior to the first Business Day following delivery of a Carve-Out Trigger Notice without regard to when such amounts are allowed by the Bankruptcy Court. Notwithstanding anything herein to the contrary, the Carve Out shall not be used to commence or prosecute any Prohibited Claim. Upon delivery of a Carve-Out Trigger Notice or the commencement of a liquidation, the Borrower shall deposit the amount prior to making any distributions of the Carve Out in a segregated account solely for payment of Professional Fees that are within the DIP Order and the Intercreditor AgreementCarve Out.
(ab) As to all Collateral, including without limitation, all cash, Cash Equivalents and real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) Party, or the possession of which is held by any such Loan Party pursuant to in the form of a leasehold interest, such each Loan Parties Party hereby assign assigns and convey conveys as security, grant grants a security interest in, hypothecatehypothecates, mortgagemortgages, pledge pledges and set sets over unto the Administrative Agent on behalf of the Lenders all of the right, title and interest of the Borrower and such Loan Parties Guarantor in all of such Collateral, including without limitation, all cash, Cash Equivalents and owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of the Borrower and such Loan Parties Guarantor in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge The Borrower and each Guarantor acknowledges that, pursuant to and subject to the DIP terms of the Final Order, the Liens granted in favor of the Administrative Agent (on behalf of the Lenders Lenders) in all of such real property and leasehold instruments of such Loan Parties the Collateral shall be perfected without the recordation of any Uniform Commercial Code financing statements, notices of Lien or other instruments of mortgage or assignment. Such Loan Parties The Borrower and each Guarantor further agree that, upon agrees that (a) the request Administrative Agent shall have the rights and remedies set forth in Section 11 and the Final Order in respect of the Collateral and (b) if requested by the Administrative Agent, in the exercise Borrower and each of its business judgment, such Loan Parties the Guarantors shall enter into separate security agreements, pledge agreements and fee and leasehold mortgages in recordable form with respect to such properties Collateral on terms reasonably satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c)Administrative Agent.
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything Each Loan Party acknowledges and agrees that, subject to the contrary herein, not more than 65% terms of the voting equity Final Order, the Prepetition Secured Parties shall receive (a) as adequate protection for, and to the extent of, any diminution in the value of the Prepetition Secured Parties’ respective interests in their collateral whether resulting from the imposition of any CFC the automatic stay, the priming described in Section 2.20(a) above, the use of the Prepetition Secured Parties’ cash collateral or the use, sale, lease, depreciation, decline in market price or other diminution in value of the Prepetition Secured Parties’ collateral (i) a Subsidiary Superpriority Claim under Section 507(b) of the Bankruptcy Code junior only the Carve Out and to the Superpriority Claim granted to the Administrative Agent and the Lenders; and (ii) a CFC shall be pledged replacement Lien on the Collateral subject and subordinate to the Carve Out having a priority immediately junior to the priming and other Liens granted in favor of the Administrative Agent and the Lenders hereunder and under the other Loan Documents and the Final Order and to valid and perfected Liens which are senior (after giving effect to the Final Order) to the Liens granted to the Administrative Agent and the Lenders pursuant to the Final Order and (b) as further adequate protection, (i) the payment on a current basis of the reasonable fees and expenses (including, but not limited to, the reasonable fees and disbursements of counsel or financial advisors or third-party consultants incurred by the Prepetition Agent (including any Lender or the Agentunpaid prepetition fees and expenses) and (ii) financial and other reporting information in accordance with this Agreement.
Appears in 1 contract
Samples: Credit and Guarantee Agreement
Priority and Liens. (a) Subject to Section 2.20(cThe Loan Parties hereby covenant, represent and warrant that, upon entry of the Interim Order (or the Final Order, as applicable), each the Obligations of the Loan Parties hereby covenants and agrees that, upon the entry of the DIP Order, its obligations hereunder and under the other Loan Documents: Documents and the Interim Order (or the Final Order, as applicable), (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesClaims, subject to any limitations set forth in the DIP Order; (ii) 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 (that is subject to the terms on, and security interest in, all present and after-acquired property of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, that is Debtors not subject to a valid, perfected, perfected and non-voidable liens avoidable lien or security interest in existence at on the time of commencement of the Cases Petition Date or to valid, non-voidable liens a valid lien in existence at on the time of such commencement Petition Date that are is perfected subsequent to such commencement the Petition Date as permitted by Bankruptcy Code Section 546(b) (but excluding the Borrower’s and the Guarantors’ rights in respect of avoidance actions under the Bankruptcy Code (limited, in and the case of voting equity interests of CFC’s, 65% of the voting equity interestsproceeds thereof); and (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a validperfected junior Lien on, bindingand security interest in, continuing, enforceable perfected second Lien upon all present and after-acquired property of such Loan Parties, whether now existing or hereafter acquired, the Debtors that is otherwise subject to a valid, perfected and non-voidable Liens avoidable lien or security interest in existence at on the time of Petition Date or a valid lien in existence on the commencement of the Cases or Petition Date that is subject to valid Liens in existence at the time of the commencement of the Cases that are perfected subsequent to such commencement the Petition Date as permitted by Bankruptcy Code Section 546(b), subject and subordinate in each case with respect to subclauses (i) through (iii) above, only to, in the event of the occurrence and during the continuance of an Event of Default, the payment of (A) unpaid fees and expenses of professionals retained by the Debtors or any official committee (each a “Committee”) appointed in accordance with Section 1102 of the Bankruptcy Code and the reasonable expenses of members of the Committee of unsecured creditors or otherwise that are (I) incurred prior to the occurrence and continuance of an Event of Default and (II) allowed by the Bankruptcy Court, at any time, under sections 105(a), 330 and 331 of the Bankruptcy Code, (B) unpaid fees and expenses of professionals retained by the Debtors or any Committee and the reasonable expenses of members of the Committee of unsecured creditors up to an aggregate amount not to exceed $25,000,000 that (I) are incurred after the occurrence and during the continuance of an Event of Default and (II) allowed by the Bankruptcy Court, at any time, under Sections 105(a), 330 and 331 of the Bankruptcy Code or otherwise, (C) in the event of a conversion of the Cases, the reasonable fees and expenses of a chapter 7 trustee under section 726(b) of the Bankruptcy Code in an amount not exceeding $2,000,000, and (other than certain property that is subject D) fees required to be paid to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1) Clerk of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on all Court and to the Office of the property of such Loan Parties that is subject to the existing liens which secure the Existing Second Lien Debt United States Trustee under 28 U.S.C. §1930(a) (collectively, the “Primed LiensCarve-Out”), all provided, however that the Carve-Out shall not include any fees or expenses incurred in challenging the Liens or Superpriority Claims of which Primed Liens shall be primed by the Collateral Agent, Administrative Agents or Lenders granted under this Agreement, the Security and made subject Pledge Agreement and subordinate to the Orders (to the extent set forth it being understood that, in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor event of a liquidation of the Agent shall also prime any Liens granted after Borrower’s and the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens, subject in each case other Debtors’ estates an amount equal to the Carve-Out and as set forth shall be reserved from the proceeds of such liquidation, or from cash held in the DIP Order estates at such time, and held in a segregated account prior to the Intercreditor making of the distributions); provided, further, however, no Loan Party shall be required to pledge to the Collateral Agent (i) in excess of 65% of the voting Capital Stock of its direct Foreign Subsidiaries or any of the Capital Stock or interests of its indirect Foreign Subsidiaries if adverse tax consequences would result to the Borrower from such pledge, (ii) the Capital Stock of Calpine Pasadena Cogeneration, Inc. and Calpine Texas Cogeneration, Inc., to the extent the pledge thereof is prohibited by the documents governing the leveraged lease transaction under which Pasadena Cogeneration L.P. is the facility lessee, and such entities are not Debtors, (iii) the Capital Stock of Androscoggin Energy, LLC, Bethpage Exxxxx Xxxxxx 0, XXX, Xxxxxxx Xxxxxx Energy Finance ULC, Calpine Canada Energy Ltd., Calpine Merchant Services Company, Inc., Calpine Newark, LLC, Calpine Pxxxxx, LLC and CPN Insurance Corporation or (iv) the stock of any Subsidiary that is not a Debtor owned by any Subsidiary that becomes a Debtor after the Closing Date to the extent such pledge would constitute a default under project documents, result in a right of refusal, call or put options being activated, or to the extent such entity is a debtor in another bankruptcy case in another jurisdiction, or insurance company or such grant of a security interest is prohibited by, or constitutes a breach or default under or results in the termination of or requires any consent not obtained under, any contract, license, agreement, instrument, other document or any applicable shareholder or similar agreement relating thereto or conflicts with any applicable law. For clarity, the Administrative Agents and Lenders agree that so long as no Event of Default shall have occurred and be continuing, the Debtors shall be permitted to pay compensation and reimbursement of fees and expenses allowed and payable under Bankruptcy Code Sections 105(a), 330, and 331, as the same may be due and payable, and neither such amounts nor any retainers paid to the professionals retained by the Debtors or any Committee, nor any fees, expenses, indemnities or other amounts paid to any Agent, Lender or their respective attorneys and agents under this Agreement, shall reduce the Carve-Out, provided, that nothing herein shall be construed to impair the ability of any party to object to any of the fees, expenses, reimbursement or compensation described in clauses (ii) and (iii) above, and provided, further, that cash or other amounts on deposit in the L/C Cash Collateral Account shall not be subject to the Carve-Out.
(ab) As to all real property the title to which is held by a Collateral, each Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign assigns and convey conveys as security, grant grants a security interest in, hypothecatehypothecates, mortgagemortgages, pledge pledges and set sets over unto the Collateral Agent on behalf of the Lenders all of the right, title and interest of the Borrower and such Loan Parties Guarantor in all of such owned real property Collateral. The Borrower and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge Guarantor acknowledges that, pursuant to the DIP OrderOrders, the Liens granted in favor of the Collateral Agent (on behalf of the Lenders Lenders) in all of such real property and leasehold instruments of such Loan Parties the Collateral shall be perfected without the recordation of any instruments Uniform Commercial Code financing statements, notices of mortgage Lien or assignmentother instruments. Such Loan Parties The Borrower and each Guarantor further agree that, upon agrees that (a) the request Collateral Agent shall have the rights and remedies set forth in the Security and Pledge Agreement in respect of the Collateral and (b) if requested by the Collateral Agent, in the exercise Borrower and each of its business judgment, such Loan Parties the Guarantors shall enter into separate security agreements, pledge agreements and fee and leasehold mortgages in recordable form with respect to such properties Collateral on terms reasonably satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Guarantee Agreement (Calpine Corp)
Priority and Liens. (a) Subject to Section 2.20(c)Each Debtor hereby covenants, each of the Loan Parties hereby covenants represents and agrees that, warrants that upon the entry of the each DIP Order, its obligations the Obligations of such Debtor hereunder and under the Loan Financing Documents: :
(i) pursuant to Section section 364(c)(1) of the Bankruptcy CodeCode and subject and subordinate only to the Carve-Out, shall at all times constitute an allowed Superpriority Claim in the CasesClaims, subject pursuant to any limitations set forth in the DIP Order; Orders;
(ii) pursuant to Section section 364(c)(2) of the Bankruptcy CodeCode and subject and subordinate only to the Carve-Out, shall at all times be secured by a first priority valid, binding, continuingenforceable and perfected security interests in, enforceable perfected first priority Lien (and Liens upon, all unencumbered tangible and intangible property of such Debtor of the type that is Collateral, including any such property that is subject to valid and perfected Liens in existence on the terms Petition Date, which Liens are thereafter released or otherwise extinguished in connection with the satisfaction of the Intercreditor Agreement and DIP Orderobligations secured by such Liens;
(iii) on all pursuant to section 364(c)(3) of the Bankruptcy Code and subject to the Carve-Out, shall at all times be secured by junior, valid, binding, enforceable and perfected security interests in, and Liens upon, all property of such Loan Partieseach of the Debtor’s estates that, whether now existing or hereafter acquiredon the Petition Date, that is not was subject to valid, perfected, non-voidable a valid and perfected Lien (other than the Liens securing the Prepetition Indebtedness or Liens that were otherwise junior to the liens in existence at securing the time of commencement Prepetition Credit Agreement as of the Cases Petition Date) or becomes subject to valid, non-voidable liens a valid Lien perfected (but not granted) after the Petition Date to the extent such post- Petition Date perfection in existence at the time respect of such commencement that are perfected subsequent to such commencement as prepetition claims is expressly permitted by Section under section 546(b) of the Bankruptcy Code (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable 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 (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on all of the property of such Loan Parties that is subject to the existing liens which secure the Existing Second Lien Debt (collectively, the “Primed Permitted Prior Liens”), all of which Primed ; provided that the Liens granted under the Financing Documents and DIP Orders shall not be primed by and made subject and or subordinate to (to the extent set forth in the DIP Order1) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the 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, subject in each case to the Carve-Out and as set forth in the DIP Order and the Intercreditor Agreement.
(a) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding notwithstanding anything to the contrary hereinin the Financing Documents or the DIP Orders, not more than 65% any security interest that is avoided and preserved for the benefit of the voting equity Debtors and their estates, (2) except as provided in the DIP Orders and except for any Collateral subject to the Permitted Prior Liens, any Liens arising after the Petition Date including, any Liens or security interests of any CFC or a Subsidiary of a CFC shall be pledged granted in favor of any Lender federal, state municipal or other governmental unit, commission, board or court for any liability of the Agent.Debtors; or
Appears in 1 contract
Samples: Dip Credit Agreement
Priority and Liens. (a) Subject to Section 2.20(c)The Borrower hereby covenants, each of the Loan Parties hereby covenants represents and agrees warrants that, upon the entry of the DIP Final Order, its obligations the Obligations of the Borrower hereunder and under the other Loan Documents: , (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesSuper-Priority Claims, subject to any limitations set forth in the DIP Order; (ii) 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 (that is subject to on all Collateral, including without limitation, all cash maintained in the terms L/C Cash Collateral Account and any direct investments of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquiredfunds contained therein, that is otherwise not subject to valid, perfected, non-voidable liens in existence at the time of commencement encumbered by a valid and perfected Lien as of the Cases or to validPetition Date, 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second priority Lien upon all property Collateral (other than the Prepetition Collateral securing the Prepetition Supplemental Term Loans, as to which the Lien in favor of such Loan Parties, whether now existing or hereafter acquired, the Agents and the Lenders will be as described in clause (iv) of this sentence) that is subject to valida Permitted Lien, including, without limitation, valid and perfected and non-voidable Liens in existence at on the time of the commencement of the Cases Petition Date 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(but not granted) of the Bankruptcy Code (other than certain property that is subject thereafter to the existing Liens that secure obligations extent such post-Petition Date perfection in respect of a pre-Petition Date claim is expressly permitted under the Existing Second Lien DebtBankruptcy Code, which liens junior to such Permitted Liens, provided that the Liens granted in favor of the Agents and the Lenders shall be primed by senior to any Permitted Lien which is expressly stated herein to be junior to the liens described Liens in favor of the following clause (iv)); Agents and the Lenders, and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on all of the property Prepetition Collateral securing the Prepetition Supplemental Term Loans and any Property of such Loan Parties that the Debtors on which a Lien is subject granted after the Petition Date to provide adequate protection in respect of the existing liens which secure the Existing Second Lien Debt (collectivelyPrepetition Obligations, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate in each case with respect to subclauses (i) through (iv) above, only to (x) following the occurrence and during the continuance of a Default or an Event of Default, the payment (as the same may be due and payable) of professional fees and disbursements allowed pursuant to Sections 105, 327, 328, 330, 503(b) or 1103(a) of the Bankruptcy Code and incurred by the professionals retained by the Borrower, the Steering Committee and any statutory committee of unsecured creditors appointed in the Case in an aggregate amount not to exceed $1,000,000 (in addition to compensation previously accrued (to the extent set forth in it is ultimately allowed by the DIP OrderBankruptcy Court) whether or not paid) and (y) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor payment of the 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, subject in each case to the Carve-Out and as set forth in the DIP Order and the Intercreditor Agreement.
(a) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party unpaid fees pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.28 U.S.
Appears in 1 contract
Priority and Liens. At all times prior to the Exit Facility Conversion Date,
(a) Subject to Section 2.20(c)Each Grantor hereby covenants, each of the Loan Parties hereby covenants represents and agrees that, warrants that upon the entry of the each DIP Order, its obligations the Obligations of such Grantor hereunder and under the other Loan Documents: :
(i) pursuant to Section section 364(c)(1) of the Bankruptcy CodeCode and subject to the Carve-Out, shall at all times constitute an allowed Superpriority Claim in (excluding any avoidance activity under the Cases, subject to any limitations set forth in Bankruptcy Code (but including the DIP Order; proceeds therefrom));
(ii) pursuant to Section section 364(c)(2) of the Bankruptcy CodeCode and subject to the Carve-Out, shall at all times be secured by a first priority, valid, binding, continuingenforceable and perfected security interests in, enforceable perfected first priority Lien (and Liens upon, all unencumbered tangible and intangible property of such Grantor, including any such property that is subject to valid and perfected Liens in existence on the terms Petition Date, which Liens are thereafter released or otherwise extinguished in connection with the satisfaction of the Intercreditor Agreement obligations secured by such Liens (excluding any avoidance actions under the Bankruptcy Code (but including the proceeds therefrom)), and DIP Order) on all of its cash maintained in the property L/C Cash Deposit Account and any investment of such Loan Partiesthe funds contained therein, whether now existing or hereafter acquired, provided that is amounts in the L/C Cash Deposit Account shall not be subject to valid, perfected, nonthe Carve-voidable liens in existence at the time of commencement of the Cases or Out;
(iii) pursuant 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(bsection 364(c)(3) of the Bankruptcy Code and subject to the Carve-Out, shall at all times be secured by junior, valid, binding, enforceable and perfected security interests in, and Liens upon, all (limitedA) property of each of the Loan Parties’ estates that, on the Petition Date, was subject to a valid and perfected Lien (other than the Liens securing the Prepetition Indebtedness) or becomes subject to a valid Lien perfected (but not granted) after the Petition Date to the extent such post-Petition Date perfection in respect of prepetition claims is expressly permitted under the Bankruptcy Code (the “Permitted Prior Liens”), (B) property of each of the Grantors’ estates that is subject to valid rights of setoff, and (C) property of each of the Grantors’ estates that is subject to such other Liens as are expressly permitted under Sections 6.02(c), (d), (e), (f), (g), (h), (i) or (o) of the Credit Agreement (such Liens described in this clause (C), along with the Permitted Prior Liens, the “DIP Permitted Liens”); provided that the Liens granted under the Loan Documents shall not be subject or subordinate to (1) notwithstanding anything to the contrary in the case of voting equity interests of CFC’sLoan Documents or the DIP Orders, 65% any DIP Permitted Lien or security interest that is avoided and preserved for the benefit of the voting equity interests)Grantors and their estates, (2) except as provided in the DIP Orders and the Loan Documents, any Liens arising after the Petition Date including, any Liens or security interests granted in favor of any federal, state municipal or other governmental unit, commission, board or court for any liability of the Grantors; or (3) any intercompany or affiliate Liens of the Grantors; and
(iv) pursuant to section 364(d)(1) of the Bankruptcy Code and subject only to the Carve-Out and clause (iii) pursuant to above, shall at all times be secured by first priority, priming, valid, binding, enforceable and perfected security interests in, and Liens upon, all the Prepetition Collateral.
(b) The Secured Parties’ Liens and Superpriority Claims as described herein and Section 364(c)(32.26(a) of the Credit Agreement shall have priority over any claims arising under section 506(c) of the Bankruptcy Code, and shall be secured by a validsubject and subordinate only to (i) the Carve-Out, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable 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 (other than certain property that is subject except with respect to the existing L/C Cash Deposit Account and (ii) to the extent provided in the Term Loan/Revolving Facility Intercreditor Agreement, the Liens that secure obligations securing the Obligations under and as defined in the Term Facility Credit Agreement in respect of the Existing Second Term Facility First Lien DebtCollateral. Except as set forth herein or in the Term Loan/Revolving Facility Intercreditor Agreement, which liens no other claim having a priority superior to or pari passu with that granted to Secured Parties by the Interim Order and Final Order, whichever is then in effect, shall be primed by granted or approved while any Obligations under this Agreement remain outstanding.
(c) Except for the liens described in Carve-Out, no costs or expenses of administration shall be imposed against Administrative Agent, Lenders, any other Secured Party or any of the following clause (iv)); and (iv) pursuant to Section 364(d)(1Collateral under sections 105 or 506(c) of the Bankruptcy Code, shall be secured by a validor otherwise, binding, continuing, enforceable perfected first priority senior priming Lien on all and each of the property Grantors hereby waives for itself and on behalf of its estate in bankruptcy, any and all rights under sections 105 or 506(c) of the Bankruptcy Code, or otherwise, to assert or impose or seek to assert or impose, any such Loan Parties that is subject to the existing liens which secure the Existing Second Lien Debt (collectivelycosts or expenses of administration against Administrative Agent, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to Lenders or any other Secured Party.
(to the extent set forth in the DIP Orderd) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the 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, subject in each case to Except for the Carve-Out Out, the Superpriority Claims shall at all times be senior to the rights of each Grantor, any chapter 11 trustee and, subject to section 726 of the Bankruptcy Code, any chapter 7 trustee, or any other creditor (including, without limitation, post-petition counterparties and as set forth other post-petition creditors) in the DIP Order and Chapter 11 Cases or any subsequent proceedings under the Intercreditor Agreement.
(a) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverablesBankruptcy Code, including, without limitation, a Standard Flood Hazard Determination and, any chapter 7 cases (if any of the Grantor’s cases are converted to cases under chapter 7 of the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(cBankruptcy Code).
(be) The relative priorities Notwithstanding any failure on the part of any Grantor or the Collateral Agent or the Lenders to perfect, maintain, protect or enforce the Liens described and security interests in this Section 2.20 with respect to the Collateral shall be as set forth in granted hereunder, the DIP Interim Order and the Intercreditor Agreement. The relative priorities Final Order (when entered) shall automatically, and without further action by any Person, perfect such Liens and security interests against the Collateral (if and to the extent perfection may be achieved by the entry of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the AgentFinancing Orders).
Appears in 1 contract
Samples: Revolving Facility Guarantee and Collateral Agreement (HMH Holdings (Delaware), Inc.)
Priority and Liens. (a) Subject to Section 2.20(c)The Debtors hereby covenant, each of the Loan Parties hereby covenants represent and agrees warrant that, upon the entry of the DIP Interim Order (and the Final Order, its obligations as applicable), the Obligations of the Debtors hereunder and under the other Loan Documents: , each Cash Management Document, each Hedging Contract and the obligations of the Debtors pursuant to Article XI, (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesClaims, subject to any limitations set forth in the DIP Order; (ii) 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 Collateral that is subject otherwise not encumbered by a valid and perfected Lien as of the Petition Date or a valid Lien perfected (but not granted) thereafter to the terms extent such post-Petition Date perfection in respect of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, that a pre-Petition Date claim 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 expressly permitted by under Section 546(b) of the Bankruptcy Code (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); and (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, Collateral that is subject to valid, perfected and non-voidable avoidable Liens in existence at on the time of the commencement of the Cases Petition Date or that is subject to valid Liens perfected (but not granted) thereafter to the extent such post-Petition Date perfection in existence at the time respect of the commencement of the Cases that are perfected subsequent to such commencement as a pre-Petition Date claim is expressly permitted by under Section 546(b) of the Bankruptcy Code Code, subject, in each case, only to (other than certain property that is subject x) in the event of the occurrence and during the continuance of an Event of Default, the payment of allowed and unpaid professional fees and disbursements (the “Professional Fees”) incurred at any time after the first business day following delivery of written notice from the Administrative Agent to the existing Liens that secure obligations in respect U.S. Trustee and each of the Existing Second Lien Debt, which liens shall be primed lead counsel for the Debtors and the Committee (as defined below) (the “Trigger Notice”) of the occurrence of an Event of Default (to the extent allowed by the liens described Bankruptcy Court at any time) by the Loan Parties and any statutory committees appointed in the Cases (each a “Committee”) in an aggregate amount not in excess of $1,500,000 (the “Carve Out Cap”), (y) all unpaid Professional Fees incurred by the Loan Parties and any Committee at any time on or prior to the first business day following clause (iv)); delivery of the Trigger Notice to the extent allowed by the Bankruptcy Court at any time, and the payment of fees pursuant to 28 U.S.C. §1930 and (ivz) pursuant fees and expenses up to $250,000 incurred by a trustee under Section 364(d)(1726(b) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on all of the property of such Loan Parties that is subject Code (without regard to the existing liens which secure notice set forth in (x) or (y) above) (the Existing Second Lien Debt amounts described in clauses (x), (y) and (z) collectively, the “Primed LiensCarve Out”). Notwithstanding the foregoing, all (i) the Carve Out shall not be available to pay any professional fees and expenses incurred in connection with the initiation or prosecution of which Primed Liens any claims, causes of action, adversary proceedings or other litigation against the Administrative Agent, the Lenders or the administrative agent under the Prepetition Credit Agreement, (ii) so long as an Event of Default shall not have occurred and be continuing, the Debtors shall be primed permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. § 330 and § 331, as the same may be due and payable, and the same shall not reduce the Carve Out and (iii) the Carve Out Cap shall not be reduced by and made subject and subordinate to (the payment of Professional Fees incurred on or prior to the extent set forth in first business day following delivery of a Trigger Notice without regard to when such amounts are allowed by the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after Bankruptcy Court. Upon the commencement of a liquidation, the Cases Debtors are directed to provide adequate protection Liens deposit an amount equal to the unpaid Professional Fees, including the Carve Out Cap, prior to making any distributions to creditors in respect a segregated account solely for payment of Professional Fees that are within the Carve Out. Nothing herein shall be construed as a waiver of the right of the Administrative Agent or any Lender to object to the allowance of any of the Primed Liens, subject in each case to the Carve-Out Professional Fees and as set forth in the DIP Order and the Intercreditor Agreement.
(a) disbursements. As to all real property Collateral, including without limitation, all cash, Cash Equivalents and Real Property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) , or the possession of which is held by any such Loan Party pursuant to Debtor in the form of a leasehold interest, such Loan Parties each Debtor hereby assign and convey as security, grant grants a security interest in, hypothecatehypothecates, mortgagemortgages, pledge and set over unto pledges to the Agent on behalf Administrative Agent, for the benefit of the Lenders and the other holders of the Obligations, all of the right, title and interest of the Borrower and such Loan Parties Debtor in all of such Collateral, including without limitation, all cash, Cash Equivalents and owned real property Real Property and in all such leasehold interests, together in each case with all of the right, title and interest of the Borrower and such Loan Parties Debtor in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge The Borrower and each Debtor acknowledges that, pursuant to the DIP OrderOrders, the Liens granted in favor of the Administrative Agent (on behalf of the Lenders Lenders) in all of such real property and leasehold instruments of such Loan Parties the Collateral shall be perfected without the recordation of any Uniform Commercial Code financing statements, notices of Lien or other instruments of mortgage or assignment. Such Loan Parties The Borrower and each Guarantor further agree that, upon agrees that (a) the request Administrative Agent shall have the rights and remedies set forth in Article IX and Article XII and the Orders in respect of the Collateral and (b) if requested by the Administrative Agent, in the exercise Borrower and each of its business judgment, such Loan Parties the other Debtors shall enter into separate security agreements, pledge agreements and fee and leasehold mortgages in recordable form with respect to such properties Collateral on terms reasonably satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Administrative Agent.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Guarantee Agreement (Us Concrete Inc)
Priority and Liens. (a) Subject to Section 2.20(c)The Borrower hereby covenants, each of the Loan Parties hereby covenants represents and agrees warrants that, upon the entry of the DIP Order, its obligations hereunder and under the Loan Documents: Interim Order (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, the Obligations of the Borrower hereunder and under the Loan Documents and in respect of Indebtedness permitted by Section 6.03(iv) shall at all times constitute an allowed Superpriority Claim administrative expense claims in the CasesCase having priority over all administrative expenses of the kind specified in Sections 503(b) or 507(b) of the Bankruptcy Code, subject to any limitations set forth in the DIP Order; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, the Obligations of the Borrower hereunder and under the Loan Documents and in respect of Indebtedness permitted by Section 6.03(iv) shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (that is subject to the terms on all unencumbered property of the Intercreditor Agreement Borrower and DIP Order) on all cash maintained in the Letter of Credit Account and any direct investments of the property of such Loan Partiesfunds contained therein, whether now existing or hereafter acquired, 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, the Obligations of the Borrower hereunder and under the Loan Documents and in respect of Indebtedness permitted by Section 6.03 shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases or Borrower that is subject to valid and perfected Liens in existence at on the time of the commencement of the Cases that are perfected subsequent Filing Date, junior to such commencement valid and perfected Liens (except as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described otherwise provided in the following clause (ivclause)); , and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, the Obligations of the Borrower hereunder and under the Loan Documents and in respect of Indebtedness permitted by Section 6.03(iv) shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien lien on all any property of the property of such Loan Parties that is subject Borrower to which any liens attached prior to the existing liens which secure the Existing Second Lien Debt (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens Filing Date in respect of any of the Primed LiensJudgment, subject in each case only to (x) in the event of the occurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both, the payment of allowed and unpaid professional fees and disbursements incurred by the Borrower and any statutory committees appointed in the Case in an aggregate amount not in excess of $3,000,000 and (y) the payment of unpaid fees pursuant to 28 U.S.C. Section 1930 (collectively, the "CARVE-OUT"), PROVIDED that following the Termination Date amounts in the Letter of Credit Account shall not be subject to the Carve-Out Out. The Banks agree that so long as no Event of Default or event which with the giving of notice or lapse of time or both would constitute an Event of Default shall have occurred and be continuing, the Borrower shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. Section 330 and 11 U.S.C. Section 331, as set forth in the DIP Order same may be due and payable, and the Intercreditor Agreementsame shall not reduce the Carve-Out.
(ab) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) the Borrower, or the possession of which is held by any such Loan Party the Borrower pursuant to leasehold interest, such Loan Parties the Borrower hereby assign assigns and convey conveys as security, grant grants a security interest in, hypothecatehypothecates, mortgagemortgages, pledge pledges and set sets over unto the Agent on behalf of the Lenders Banks all of the right, title and interest of such Loan Parties the Borrower in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties the Borrower in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge The Borrower acknowledges that, pursuant to the DIP OrderOrders, the Liens in favor of the Agent on behalf of the Lenders Banks in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties The Borrower further agree agrees that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties Borrower shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms reasonably satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Paragon Trade Brands Inc)
Priority and Liens. (a) Subject to Section 2.20(c)The Borrower hereby grants, each of the Loan Parties hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Final Borrowing Order, its obligations as security for the payment of the Obligations of the Borrower hereunder and under the other Loan Documents: Documents (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, a Superpriority Claim, and the Borrower hereby covenants that such Obligations shall at all times constitute an allowed Superpriority Claim in the CasesClaims, subject to any limitations set forth in the DIP Order; (ii) 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 tangible and intangible property of the Borrower’s estate (whether now or hereinafter acquired) in the Chapter 11 Case that is subject to the terms otherwise not encumbered by a valid and perfected Lien as of the Intercreditor Agreement Petition Date (including without limitation, all inventory, accounts receivable, general intangibles, contracts, servicing rights, servicing receivables, any right to payment or delivery of property under a repurchase agreement, securities, chattel paper, owned real estate, real property leaseholds, fixtures, machinery, equipment, deposit accounts, patents, copyrights, trademarks, tradenames, rights under license agreements and DIP Order) on all other intellectual property and capital stock of the property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, non-voidable liens in existence at the time of commencement subsidiaries of the Cases or to validBorrower, non-voidable liens in existence at not including the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of actual Avoidance Actions (but including the Bankruptcy Code (limitedproceeds thereof), in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon on all tangible and intangible property of such Loan Parties, the Borrower’s estate (whether now existing or hereafter hereinafter acquired, ) in the Chapter 11 Case that is subject to valid, perfected and non-voidable avoidable Liens in existence at the time of the commencement of the Cases or that is subject to valid Liens in existence at on the time of the commencement of the Cases Petition Date that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect securing any of the Existing Second Lien DebtTimber Note Obligations, which liens shall be primed by the liens described in Liens to be granted to secure the following clause (ivFacility)); , and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on upon all tangible and intangible property of the property of such Loan Parties Borrower’s estate in the Chapter 11 Case (x) that is subject to a valid Lien or security interest in effect on the existing liens which Petition Date to secure the Existing Second Lien Debt (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor any of the Agent shall also prime any Liens Timber Note Obligations and (y) that is subject to a valid Lien granted after the commencement of the Cases Petition Date to provide adequate protection Liens in respect of any of the Primed LiensTimber Note Obligations, subject and subordinate in each case with respect to subclauses (i) through (iv) above, only to the Carve-Out and as set forth in the DIP Order and the Intercreditor Agreement.
Outs (a) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(cdefined below).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.
Appears in 1 contract
Samples: Dip Credit Agreement
Priority and Liens. The Loan Parties hereby covenant, represent and warrant that the Obligations shall (a) Subject to Section 2.20(c), each of the Loan Parties hereby covenants and agrees that, upon the entry of the DIP Order, its obligations hereunder and under the Loan Documents: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP Order; (ii) pursuant to Section 364(c)(2) Super-Priority Claims against all of the Bankruptcy CodeLoan Parties, shall at all times and (b) be secured by a valid, binding, continuing, enforceable perfected first priority Lien the following Liens:
(that is subject to the terms i) upon and after entry of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, 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 Interim Order by Section 546(b) of the Bankruptcy Code Court, (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iiiA) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable 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 (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on all of the property of such Loan Parties that is subject to the existing liens which secure the Existing Second Lien Debt (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens Priority Interim Collateral in favor of the Agent Collateral Agent, for the benefit of the Secured Parties, to secure the Obligations, which Lien shall also prime any be senior to all of the other Liens on the Priority Interim Collateral (including, without limitation, the Pre-Petition Lender Liens), and (B) a Lien on all of the assets and properties of the Loan Parties (other than the Priority Interim Collateral) in favor of the Collateral Agent, for the benefit of the Secured Parties, to secure the Obligations, which Lien shall be subject only to valid and perfected Liens on such assets and properties prior to the Loan Parties' filing for bankruptcy (and the Liens granted after to the commencement Collateral Agent, for the benefit of the Cases to provide adequate protection Liens in respect of any Secured Parties, on the assets and properties of the Primed Loan Parties (other than the Priority Interim Collateral) that are subject to the Pre-Petition Lender Liens shall only be junior to the Pre-Petition Lender Liens), and
(ii) upon and after entry of the Final Order by the Bankruptcy Court, (A) a Lien on all of the Priority Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, to secure the Obligations, which Lien shall be senior to all other Liens on the Priority Collateral (including, without limitation, the Pre-Petition Lender Liens), and (B) a Lien on all of the assets and properties of the Loan Parties (other than the Priority Collateral) in favor of the Collateral Agent, for the benefit of the Secured Parties, to secure the Obligations, which Lien shall be subject in each case only to valid and perfected Liens on such assets and properties prior to the Loan Parties filing for bankruptcy (and the Liens granted to the Collateral Agent, for the benefit of the Secured Parties, on the assets and properties of the Loan Parties (other than the Priority Collateral) that are subject to the Pre-Petition Lender Liens shall only be junior to the Pre-Petition Lender Liens); provided, however, that all of the foregoing claims and Liens of the Secured Parties shall be subject to the Carve-Out as and as set forth in to the DIP Order and the Intercreditor Agreement.
(a) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest extent provided in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant subject to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property terms and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agentconditions set forth, in the exercise of its business judgmentInterim Order or, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loansif entered, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02Final Order. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary hereincontained in this Agreement, not more than 65% no portion of the voting equity interests Carve-Out shall be used to satisfy or pay any fees or administrative expense claims arising in connection with (x) any litigation against the Lenders or Pre-Petition Lenders (including the investigation, preparation and prosecution of any CFC motions, objections or a Subsidiary adversary proceedings seeking an order or judgment disallowing any of a CFC shall be pledged in favor the claims of the Lenders or Pre-Petition Lenders against the Loan Parties, vacating or modifying any Lender of the Orders, or awarding any other damages or remedies against the AgentLenders or Pre-Petition Lenders), (y) any objection or other opposition to the enforcement of remedies by the Lenders or Pre-Petition Lenders under the Loan Documents or Pre-Petition Credit Agreement, or (z) any request by the Lenders or Pre-Petition Lenders for an order dismissing the Cases or converting the Cases to cases under Chapter 7 of the Bankruptcy Code.
Appears in 1 contract
Samples: Debtor in Possession Credit and Guaranty Agreement (Key3media Group Inc)
Priority and Liens. (a) Subject to Section 2.20(c), The Borrower and each of the Loan Parties Guarantors hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Interim Order, its obligations the Obligations of the Borrower and the Guarantors hereunder and under the Loan Documents: Documents and in respect of Indebtedness permitted by Sections 6.03(vi), (vii) and (viii): (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim administrative expense claims in the Cases, subject to any limitations set forth Cases having priority over all administrative expenses of the kind specified in Sections 503(b) or 507(b) of the DIP OrderBankruptcy Code; (ii) 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 (that is subject to the terms on all unencumbered property of the Intercreditor Agreement Borrower and DIP Orderthe Guarantors (excluding the Borrower's and the Guarantors' rights in respect of avoidance actions under the Bankruptcy Code, it being understood that, notwithstanding such exclusion of avoidance actions, the proceeds of such actions shall be available to repay the Obligations) on all of (including, without limitation, upon and after the Tranche B Effective Date, the property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, nonthe Borrower and the Guarantors previously securing the Pre-voidable liens Petition Obligations) and on all cash maintained in existence at the time respective Letter of commencement Credit Accounts and any direct investments 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests)funds contained therein; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, the Borrower and the Guarantors (other than the property that is subject to valid, perfected and non-voidable existing Liens in existence at that presently secure the time obligations of the commencement Borrower and the Guarantors under the Existing Agreement, as to which the Lien in favor of the Cases or Agent and the Banks will be as described in clause (iv) of this sentence) that is subject to valid and perfected Liens in existence at on the time of Filing Date or to valid Liens in existence on the commencement of the Cases Filing Date that are perfected subsequent to such commencement the Filing Date as permitted by Section 546(b) of the Bankruptcy Code or to Permitted Liens, junior to such valid and perfected Liens; and (iv) with respect only to the Tranche A Obligations, pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a perfected first priority, senior priming Lien on all of the tangible and intangible property of the Borrower and the Guarantors (including without limitation, accounts receivable, inventory, patents, copyrights, trademarks, tradenames and all other than certain property intellectual property, and the capital stock of all direct subsidiaries of the Borrower and each Guarantor and the proceeds thereof) that is subject to the existing Liens that presently secure obligations the Borrower's and the Guarantors' pre-petition Indebtedness under the Existing Agreement (but subject to any Liens in existence on the Filing Date to which the Liens being primed hereby are subject or become subject subsequent to the Filing Date as permitted by Section 546(b) of the Bankruptcy Code) and any Liens granted after the Filing Date to provide adequate protection in respect of the Existing Second Lien DebtAgreement, which liens subject in all such Cases only to (x) the Liens in favor of the Factor to the extent provided for in Section 2.23(b) below, (y) in the event of the occurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both (unless subsequently waived), the payment of allowed and unpaid professional fees and disbursements incurred by the Borrower, the Guarantors and any statutory committees appointed in the Cases in an aggregate amount not in excess of $1,000,000 (plus all unpaid professional fees and disbursements incurred prior to the occurrence of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both to the extent allowed by the Bankruptcy Court at any time) and (z) the payment of unpaid fees pursuant to 28 U.S.C. ss. 1930 and to the Clerk of the Bankruptcy Court (collectively, in the case of clauses (y) and (z), the "Carve-Out"), provided, that, no portion of the Carve-Out shall be primed utilized for the payment of professional fees and disbursements incurred in connection with any challenge to the amount, extent, priority, validity, perfection or enforcement of the Indebtedness of the Borrower and the Guarantors owing to the Existing Lenders (in respect of the Existing Agreements, the Rate Agreement, the Factoring Agreement or under this Agreement or any of the other Loan Documents) or to the collateral securing such Indebtedness. The Banks agree that so long as no Event of Default or event which with the giving of notice or lapse of time or both would constitute an Event of Default shall have occurred, the Borrower and the Guarantors shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. ss. 330 and 11 U.S.C. ss. 331, as the same may be due and payable, and the same shall not reduce the Carve-Out.
(b) The Borrower and each of the Guarantors hereby covenants, represents and warrants that, upon entry of the Interim Order, the Obligations of the Borrower and the Guarantors in respect of Indebtedness owed to the Factor permitted by the liens described in the following clause Section 6.03(viii): (iv)); and (ivi) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on those accounts receivable of the Borrower and the Guarantors that constitute Factor Risk Accounts, but only to the extent, and only at the time, that the Factor has made payments to the Agent in respect of such accounts receivable, but has not yet collected payment from the account debtor in respect thereof; (ii) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a perfected first priority, senior priming Lien on all accounts receivable of the property of such Loan Parties that is subject Borrower and the Guarantors, but only to the existing liens which secure extent, and only at the Existing Second Lien Debt (collectivelytime, that the “Primed Liens”), all of which Primed Liens shall be primed by Factor has collected amounts from an account debtor and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted paid such amounts over to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases and has been subsequently required to provide adequate protection Liens in respect of any of the Primed Liens, subject in each case disgorge such amounts to the Carve-Out and as set forth in Borrower, or that the DIP Order and the Intercreditor Agreement.
(a) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set Factor has paid amounts over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverablessuch amounts are not subsequently collected or are uncollectable, including, without limitation, as a Standard Flood Hazard Determination andresult of returned checks, to the extent applicable, misapplied funds or similar items (other than as a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities result of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.Factor's own gross negligence or
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Kasper a S L LTD)
Priority and Liens. (a) Subject to Section 2.20(c), The Borrower and each of the Loan Parties Subsidiary Guarantors hereby covenants covenants, represents and agrees that, upon warrants that the entry Obligations of the DIP Order, its obligations Borrower and the Subsidiary Guarantors hereunder and under the Loan Documents: Documents and in respect of Debt permitted by Section 5.02(c)(iv): (i) pursuant to Section section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (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 Lien (on all unencumbered property of the Borrower and the Subsidiary Guarantors that is subject to unencumbered on the terms Petition Date and on any unencumbered cash and cash equivalents maintained in any L/C Cash Collateral Account or the Cash Concentration Account and any investments of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests)funds contained therein; (iii) pursuant to Section section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, the Borrower and the Subsidiary Guarantors that is subject to valid, perfected and non-voidable unavoidable Liens in existence at on the time of the commencement of the Cases Petition Date or that is subject to valid Liens in existence at on the time of the commencement of the Cases Petition Date that are perfected subsequent to such commencement the Petition Date as permitted by Section section 546(b) of the Bankruptcy Code (other than certain property that is subject or to the existing Liens that secure obligations in respect of the Existing Second Lien DebtPermitted Liens, which liens shall be primed by the liens described in the following clause (iv))junior to such valid, perfected and unavoidable Liens; and (iv) pursuant to Section section 364(d)(1) of the Bankruptcy Code, shall be secured by a validperfected and unavoidable first priority, binding, continuing, enforceable perfected first priority senior priming Lien on all of the tangible and intangible property of such Loan Parties the Borrower and the Subsidiary Guarantors (including without limitation, accounts receivable, inventory, patents, copyrights, trademarks, tradenames and all other intellectual property, and the capital stock of all direct subsidiaries of the Borrower and each Subsidiary Guarantor and the proceeds thereof) that is subject to the existing liens which Liens that presently secure the Borrower's and the Subsidiary Guarantors' pre-petition Debt under the Existing Second Lien Debt Agreement (collectivelybut subject to any Liens in existence on the Petition Date to which the Liens being primed hereby are subject or become subject subsequent to the Petition Date as permitted by section 546(b) of the Bankruptcy Code) and the Adequate Protection Liens, subject and subordinated in each case with respect to clauses (i) through (iv) above, only to the Carve Out. Except for the Carve Out having priority over the Obligations, the “Primed Liens”), Superpriority Claims shall at all of which Primed Liens shall times be primed by and made subject and subordinate to (senior to the extent set forth rights of the Borrower, the Subsidiary Guarantors, any chapter 7 trustee, or any other creditor (including, without limitation, post-petition counterparties and other post-petition creditors) in the DIP Order) Cases or any subsequent proceedings under the perfected first priority senior Liens to be granted to the AgentBankruptcy Code, which senior priming Liens in favor of the Agent shall also prime including, without limitation, any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of chapter 7 cases if any of the Primed Liens, subject in each case Borrower's or the Subsidiary Guarantors' cases are converted to cases under chapter 7 of the Carve-Out and as set forth in the DIP Order and the Intercreditor AgreementBankruptcy Code.
(ab) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) Borrower or any of the Subsidiary Guarantors, or the possession of which is held by any such Loan Party Borrower or any of the Subsidiary Guarantors pursuant to leasehold interest, such Loan Parties the Borrower and each Subsidiary Guarantor hereby assign assigns and convey conveys as security, grant grants a security interest in, hypothecatehypothecates, mortgagemortgages, pledge pledges and set sets over unto the Collateral Agent on behalf of the Lenders Secured Parties all of the right, title and interest of such Loan Parties Borrower and such Subsidiary Guarantor in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties Borrower and such Subsidiary Guarantor in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Borrower and such Subsidiary Guarantor in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge The Borrower and each Subsidiary Guarantor acknowledges that, pursuant to the DIP Order, Orders the Liens in favor of the Collateral Agent on behalf of the Lenders Secured Parties in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties The Borrower and each Subsidiary Guarantor further agree thatagrees that each such Borrower and such Subsidiary Guarantor shall, upon on or before March 31, 2003, record the request of Interim Order in each jurisdiction where the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties identified on Schedule 4.01(x) are located on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Ntelos Inc)
Priority and Liens. (a) Subject to Section 2.20(c), each of the Loan The Credit Parties hereby covenants covenant, represent and agrees warrant that, upon the entry of the DIP Order, its obligations the Obligations of the Borrowers and Guarantors hereunder and under the Loan Documents: :
(i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP Order; Claims;
(ii) 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 Collateral that is subject to the terms otherwise not encumbered by a valid and perfected Lien as of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); Filing Date;
(iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, Collateral that is subject to valid, perfected and non-voidable avoidable Liens in existence at on the time of the commencement of the Cases Filing Date or that is subject to valid Liens in existence at on the time of the commencement of the Cases Filing Date that are perfected subsequent to such commencement as the Filing Date to the extent that is expressly permitted by Section 546(b) of under the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv))Code; and and
(iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on all of the property of such Loan Parties Collateral that is subject to the (w) existing liens which Liens that presently secure the Existing Second Lien Debt Borrowers' and the Guarantors' pre-petition Indebtedness under the Pre-Petition Credit Agreement (collectively, but subject to any Liens in existence on the “Primed Liens”Filing Date to which the Liens being primed hereby are subject or become subject subsequent to the Filing Date as permitted by Section 546(b) of the Bankruptcy Code), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Orderx) the perfected first priority senior Liens to be granted to by the Agent, which senior priming Liens Canadian Borrower in favor of the Agent shall also prime US Borrower to secure the obligations under the Canadian Loan Agreement, (y) Liens that are junior to the Liens that secure the pre-petition Indebtedness under the Pre-Petition Credit Agreement and (z) any Liens granted to the Pre-Petition Lenders after the commencement of Filing Date under the Cases Final Cash Collateral Order to provide adequate protection Liens secure the Adequate Protection Obligations thereunder; in respect of any of the Primed Lienseach case, subject in each case only to the Carve-Out and Out; provided that, except as set forth otherwise provided in the DIP Order or the Final Cash Collateral 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 the Borrower and the Intercreditor AgreementGuarantors owing to the Pre-Petition Lenders or the Lenders or to the collateral securing such indebtedness.
(b) Subject to the priorities set forth in subsection (a) As above and to the Carve-Out, as to all Collateral and now existing or hereafter acquired real property the title to which is held by a Loan Party (other than the Borrowers or any Loan Party that is not a Debtor) of the Guarantors, or the possession of which is held by the Borrowers or any such Loan Party of the Guarantors pursuant to leasehold interestinterests and which secures the obligations under the Pre-Petition Credit Agreement, such Loan Parties the Borrowers and the Guarantors hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties the Borrowers and the Guarantors in all of such Collateral, including without limitation, all cash and owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties the Borrowers and the Guarantors in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties The Borrowers and the Guarantors acknowledge that, pursuant to the DIP Order and the Canadian Recognition Order, the Liens in favor of the Agent on behalf of the Lenders in all of such Collateral, including the real property and leasehold instruments of such Loan Parties interests, shall be perfected without the recordation of any UCC financing statements (or financing statements under other applicable personal property security law), notices of Lien or instruments of mortgage or assignment. Such Loan Parties The Borrowers and the Guarantors further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties Borrowers and the Guarantors shall enter into separate security agreements, pledge agreements and fee and leasehold mortgages in recordable form with respect to such Collateral and properties on terms reasonably satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.
Appears in 1 contract
Samples: Credit, Guarantee and Security Agreement (Gentek Inc)
Priority and Liens. (a1) Subject to Section 2.20(c), The Borrower and each of the Loan Parties Guarantors hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Interim Order, its obligations the Obligations of the Borrower and the Guarantors hereunder and under the Loan Documents: Documents and in respect of Indebtedness permitted by Section 6.03 (viii): (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim administrative expense claims in the Cases, subject to any limitations set forth Cases having priority over all administrative expenses of the kind specified in Section 503(b) or 507(b) of the DIP OrderBankruptcy Code; (ii) 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 (that is subject to the terms Liens on all unencumbered pre-petition and post-petition property of the Intercreditor Agreement Borrower and DIP Orderthe Guarantors (including, without limitation, all Accounts arising after the Filing Date, except as otherwise provided in subparagraph (iii) below or in the Orders, with any such Account on which the Agent and the Banks do not have a first priority perfected Lien being excluded from the Borrowing Base, but excluding bankruptcy causes of action, it being understood that, notwithstanding such exclusion of bankruptcy causes of action, the proceeds of such causes of action shall be available for the repayment of the Obligations) and on all cash maintained in the Letter of Credit Account and any direct investments of the property of such Loan Parties, whether now existing or hereafter acquired, 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests)funds contained therein; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien Liens upon all pre-petition and post-petition property of such Loan Parties, whether now existing or hereafter acquired, the Borrower and the Guarantors but not including property that is subject to valid, perfected existing Liens that presently secure the obligations of the Borrower and non-voidable the Guarantors under the Existing Agreements as to which the Liens in existence at the time favor of the commencement Agent and the Banks will be as described in clause (iv) of the Cases this sentence or to perfected Liens in favor of Cardinal) that is subject to valid and perfected Liens in existence at on the time Filing Date (including, without limitation, Accounts in existence as of the commencement Filing Date that are subject to valid and perfected Liens in favor of the Cases Real Estate Financiers and the proceeds thereof) or to valid Liens in existence on the Filing Date or that are perfected subsequent to such commencement the Filing Date as permitted by Section 546(b) or 362(b)(18) of the Bankruptcy Code (other than certain property that is subject or to the existing Liens that secure obligations in respect of the Existing Second Lien DebtPermitted Liens, which liens shall be primed by the liens described in the following clause (iv))junior to such valid and perfected Liens; and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien Liens on all pre-petition and post-petition property of the property of such Loan Parties Borrower and the Guarantors that is subject to (A) the existing liens which Liens that secure the obligations of the Borrower and the Guarantors under and in connection with the Existing Second Lien Debt Agreements (collectively, subject to any Liens in existence on the “Primed Liens”), all Filing Date to which the Liens being primed hereby are subject or become subject or to valid liens in existence of which Primed Liens shall be primed by and made subject and subordinate to (the Filing Date that are perfected subsequent to the extent set forth in the DIP OrderFiling Date as permitted by Section 546(b) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor or 362(b)(18) of the Agent shall also prime Bankruptcy Code or to Permitted Adequate Protection Liens and Permitted Liens) and (B) any Liens granted after the commencement of the Cases Filing Date to provide adequate protection Liens in respect of any the Existing Agreements; subject only to (x) in the event of the Primed Liensoccurrence and during the continuance of an Event of Default, subject the payment of (1) accrued and unpaid professional fees and disbursements theretofore incurred as of the occurrence and during the continuance of an uncured or unwaived Event of Default, and (2) professional fees and disbursements incurred during the time of such continuance in an aggregate amount not in excess of $4,500,000, in each case by the Borrower, the Guarantors and any statutory committee appointed in the Cases and allowed by an order of the Bankruptcy Court and (y) the payment of unpaid fees pursuant to 28 U.S.C. ss. 1930 and to the Clerk of the Bankruptcy Court (collectively, the "Carve-Out"), provided that following the Termination Date amounts in the Letter of Credit Account shall not be subject to the Carve-Out, and provided, further, that, except as otherwise provided in the Orders, no portion of the Carve-Out shall be utilized for the payment of professional fees and disbursements incurred in connection with any challenge to the amount, priority, validity, perfection or enforcement of the indebtedness of the Borrower and the Guarantors owing to the Existing Lenders or to the collateral securing such indebtedness (it being understood that such amounts may be used for investigation thereof). The Banks agree that so long as no Event of Default or event which with the giving of notice or lapse of time or both would constitute an Event of Default shall have occurred, the Borrower and the Guarantors shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. ss. 330 and 11 U.S.C. ss. 331, as the same may be due and payable, and the same shall not reduce the Carve-Out.
(2) Subject to the Carve-Out and Permitted Liens, as set forth in the DIP Order and the Intercreditor Agreement.
(a) As to all real property the title to which is held by a Loan Party (other than the Borrower or any Loan Party that is not a Debtor) of the Guarantors, or the possession of which is held by the Borrower or any such Loan Party of the Guarantors pursuant to a leasehold interest, such Loan Parties the Borrower and each Guarantor hereby assign assigns and convey conveys as security, grant grants a security interest in, hypothecateand (as applicable under relevant state law) conveys security title to, mortgagehypothecates, pledge mortgages, pledges and set sets over unto the Agent on behalf of the Lenders Banks (with the priorities described above) all of the right, title and interest of the Borrower and such Loan Parties Guarantor in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of the Borrower and such Loan Parties Guarantor in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge The Borrower and each Guarantor acknowledges that, pursuant to the DIP OrderOrders, the Liens in favor of the Agent on behalf of the Lenders Banks in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments mortgages, deeds of mortgage trust, deeds to secure debt or assignmentassignments. Such Loan Parties The Borrower and each Guarantor further agree agrees that, upon the request of the Agent, in the exercise of its business judgment, Borrower and such Loan Parties Guarantor shall enter into separate fee and leasehold mortgages mortgages, deeds of trust, deeds to secure debt, collateral assignments or similar instruments in recordable form with respect to such properties on terms reasonably satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Genesis Health Ventures Inc /Pa)
Priority and Liens. (a) Subject to Section 2.20(c), The Borrower and each of the Loan Parties Guarantors hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Interim Order (and the Final Order, its obligations as applicable), the Obligations of the Borrower and the Guarantors hereunder and under the other Loan Documents: , (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesSuper-priority Claims, subject to any limitations set forth in the DIP Order; (ii) 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 Collateral that is subject to the terms otherwise not encumbered by a valid and perfected Lien as of the Intercreditor Agreement and DIP Order) on all of the property of such Loan PartiesFiling Date, whether now existing or hereafter acquired, 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second priority Lien upon all property Collateral (other than the Prepetition Collateral, as to which the Lien in favor of such Loan Parties, whether now existing or hereafter acquired, the Administrative Agent and the Lenders will be as described in clause (iv) of this sentence) that is subject to valida Permitted Lien, including, without limitation, valid and perfected and non-voidable Liens in existence at on the time of the commencement of the Cases Filing Date 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(but not granted) of the Bankruptcy Code (other than certain property that is subject thereafter to the existing Liens that secure obligations extent such post-Filing Date perfection in respect of a pre-Filing Date claim is expressly permitted under the Existing Second Lien DebtBankruptcy Code, which liens junior to such Permitted Liens, provided that the Liens granted in favor of the Administrative Agent and the Lenders shall be primed by senior to any Permitted Lien which is expressly stated herein to be junior to the liens described Liens in favor of the following clause (iv)); Administrative Agent and the Lenders, and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on all of the property of such Loan Parties that is subject to the existing liens which secure the Existing Second Lien Debt (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the 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, subject in each case to the Carve-Out and as set forth in the DIP Order and the Intercreditor Agreement.
(a) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.first
Appears in 1 contract
Samples: Revolving Credit and Guarantee Agreement (Fpa Medical Management Inc)
Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties Borrower and each Guarantor hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Interim Order, its obligations the Obligations of the Borrower and such Guarantor hereunder and under the Loan Documents: (i) pursuant to Section section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (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 Lien (on all unencumbered tangible and intangible property of the Borrower and such Guarantor and on all cash maintained in the L/C Cash Collateral Account and any investments of the funds contained therein, including any such property that is subject to valid and perfected Liens in existence on the terms Petition Date, which Liens are thereafter released or otherwise extinguished in connection with the satisfaction of the Intercreditor Agreement and DIP Order) on all of the property of obligations secured by such Loan Parties, whether now existing or hereafter acquired, 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 Liens (excluding any avoidance actions under the Bankruptcy Code (limited, in or the case of voting equity interests of CFC’s, 65% of the voting equity interestsproceeds therefrom); (iii) pursuant to Section section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all real, personal and mixed property of the Borrower and such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases or Guarantor that is subject to valid and perfected Liens in existence at on the time of the commencement of the Cases that are perfected subsequent Petition Date, junior to such commencement as permitted by Section 546(b) of the Bankruptcy Code valid and perfected Liens (other than certain property that is subject to Liens securing the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); Pre-Petition Secured Indebtedness) and (iv) pursuant to Section section 364(d)(1), shall be secured by a perfected priming Lien upon all tangible and intangible property of the Borrower and such Guarantor that presently secure the Pre-Petition Secured Indebtedness; provided that
(b) Each of the Borrower and each Guarantor hereby covenants, represents and warrants that, upon entry of the Final Order, the Obligations of the Borrower and such Guarantor hereunder and 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 unencumbered tangible and intangible property of the Borrower and such Guarantor and on all cash maintained in the L/C Cash Collateral Account and any investments of the funds contained therein, including any such property that is subject to valid and perfected Liens in existence on the Petition Date, which Liens are thereafter released or otherwise extinguished in connection with the satisfaction of the obligations secured by such Liens (excluding any avoidance actions under the Bankruptcy Code (but including the proceeds therefrom)); (iii) pursuant to section 364(c)(3) of the Bankruptcy Code, shall be secured by a validperfected Lien upon all real, binding, continuing, enforceable perfected first priority senior priming Lien on all personal and mixed property of the property of Borrower and such Loan Parties Guarantor that is subject to valid and perfected Liens in existence on the existing liens which Petition Date, junior to such valid and perfected Liens (other than Liens securing the Unrolled Pre-Petition Secured Indebtedness), and (iv) pursuant to section 364(d)(1), shall be secured by a perfected priming Lien upon all tangible and intangible property of the Borrower and such Guarantor that secure the Existing Second Lien Debt (collectively, Unrolled Pre-Petition Secured Indebtedness; provided that the “Primed Liens”), all of which Primed Liens foregoing shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the 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, subject in each case all respects to the Carve-Out and as set forth in the DIP Order and the Intercreditor AgreementOut.
(ac) As Except for the Carve-Out having priority over the Obligations, the Superpriority Claims shall at all times be senior to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf rights of the Lenders all Borrower, each Guarantor, any chapter 11 trustee and, subject to section 726 of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related theretoBankruptcy Code, any lease chapter 7 trustee, or sublease thereofany other creditor (including, all general intangibles relating thereto without limitation, post-petition counterparties and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, other post-petition creditors) in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to Cases or any subsequent proceedings under the Agent and including customary related deliverablesBankruptcy Code, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities any chapter 7 cases if any of the Liens described in this Section 2.20 with respect Borrower’s or the Guarantor’s cases are converted to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities cases under chapter 7 of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the AgentBankruptcy Code.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (Chemtura CORP)
Priority and Liens. (a1) Subject to Section 2.20(c), The Borrower and each of the Loan Parties Guarantors hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Interim Order, its obligations the Obligations of the Borrower and the Guarantors hereunder and under the Loan Documents: Documents and in respect of Indebtedness permitted by Section 6.03(vii): (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim administrative expense claims in the Cases, subject to any limitations set forth Cases having priority over all administrative expenses of the kind specified in Section 503(b) or 507(b) of the DIP OrderBankruptcy Code; (ii) 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 (that is subject to the terms Liens on all unencumbered pre-petition and post-petition property of the Intercreditor Agreement Borrower and DIP Orderthe Guarantors (including, without limitation, all Accounts arising after the Filing Date, except as otherwise provided in subparagraph (iii) below or in the Orders, with any such Account on which the Agent and the Banks do not have a first priority perfected Lien being excluded from the Borrowing Base, but excluding bankruptcy causes of action, it being understood that, notwithstanding such exclusion of bankruptcy causes of action, the proceeds of such causes of action shall be available for the repayment of the Obligations) and on all cash maintained in the Letter of Credit Account and any direct investments of the property of such Loan Parties, whether now existing or hereafter acquired, 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests)funds contained therein; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien Liens upon all pre-petition and post-petition property of such Loan Parties, whether now existing or hereafter acquired, the Borrower and the Guarantors (not including property that is subject to valid, perfected existing Liens that presently secure the obligations of the Borrower and non-voidable the Guarantors under the Existing Agreements as to which the Liens in existence at the time favor of the commencement Agent and the Banks will be as described in clause (iv) of the Cases or this sentence) that is subject to valid and perfected Liens in existence at on the time Filing Date (including, without limitation, Accounts in existence as of the commencement Filing Date that are subject to valid and perfected Liens in favor of the Cases Real Estate Financiers and the proceeds thereof) or to valid Liens in existence on the Filing Date or that are perfected subsequent to such commencement the Filing Date as permitted by Section 546(b) or 362(b)(18) of the Bankruptcy Code (other than certain property that is subject or to the existing Liens that secure obligations in respect of the Existing Second Lien DebtPermitted Liens, which liens shall be primed by the liens described in the following clause (iv))junior to such valid and perfected Liens; and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a validperfected, binding, continuing, enforceable perfected first priority senior priming Lien Liens on all pre-petition and post-petition property of the property of such Loan Parties Borrower and the Guarantors that is subject to (A) the existing liens which Liens that secure the obligations of the Borrower and the Guarantors under and in connection with the Existing Second Lien Debt Agreements (collectively, subject to any Liens in existence on the “Primed Liens”), all of Filing Date to which Primed the Liens shall be being primed by and made hereby are subject and subordinate or become subject or to (valid liens in existence on the Filing Date that are perfected subsequent to the extent set forth in the DIP OrderFiling Date as permitted by Section 546(b) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor or 362(b)(18) of the Agent shall also prime Bankruptcy Code or to Permitted Adequate Protection Liens and Permitted Liens) and (B) any Liens granted after the commencement of the Cases Filing Date to provide adequate protection Liens in respect of any the Existing Agreements; subject only to (x) in the event of the Primed Liensoccurrence and during the continuance of an Event of Default, subject the payment of (1) accrued and unpaid professional fees and disbursements theretofore incurred as of the occurrence and during the continuance of an uncured or unwaived Event of Default, and (2) professional fees and disbursements incurred during the time of such continuance in an aggregate amount not in excess of $3,500,000, in each case by the Borrower, the Guarantors and any statutory committee appointed in the Cases and allowed by an order of the Bankruptcy Court and (y) the payment of unpaid fees pursuant to 28 U.S.C. ss. 1930 and to the Carve-Out and as set forth in the DIP Order and the Intercreditor Agreement.
(a) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf Clerk of the Lenders all of the rightBankruptcy Court (collectively, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.the
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Multicare Companies Inc)
Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties hereby covenants and agrees that, upon pursuant to the entry of the DIP OrderOrders, its obligations hereunder and under the Loan DocumentsDocuments and under the Secured Agreements: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesCases (excluding a claim on Avoidance Actions, subject other than pursuant to any limitations set forth in Section 549 of the DIP OrderBankruptcy Code, but including the proceeds of Avoidance Actions (provided that such proceeds shall be available to satisfy such Superpriority Claims)); (ii) 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 (that is subject to the terms of the New DIP Order and the Intercreditor Agreement and DIP OrderAgreement) on all of the property of such Loan Parties, whether now existing or hereafter acquired, 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 (limited, in the case of voting equity interests of CFC’s, ’s to 65% of the such voting equity interests), and on all of its cash maintained in the L/C Cash Deposit Account and any investment of the funds contained therein, provided that amounts in the L/C Cash Deposit Account or the Secured Agreements Cash Deposit Account (as defined in the Final Order) shall not be subject to the Carve-Out); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable 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 (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1364(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 property of such Loan Parties that is subject to the existing liens (the “Primed Liens”) which secure the Existing Second Lien Debt (collectively, the “Primed Liens”)Debt, all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP OrderOrders) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the 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, subject in each case to the Carve-Out and as set forth in the DIP Order Orders and the Intercreditor Agreement.
(ab) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP OrderOrders, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(bc) The relative priorities of the Liens described in this Section 2.20 2.24 with respect to the ABL Priority Collateral of the Debtors and the Term Loan Priority Collateral of the Debtors, relative to the priorities of the Liens on the ABL Priority Collateral of the Debtors and the Term Loan Priority Collateral of the Debtors securing the obligations under the DIP Term Loan Facility shall be as set forth in the New DIP Order and in the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this SectionSection 2.24 shall be effective and perfected upon effectiveness of the New DIP Order.
(cd) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent, for the benefit of the Lenders, unless otherwise agreed to by the Borrower.
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Eastman Kodak Co)
Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties hereby covenants and agrees that, that upon the entry of the DIP Interim Order (and when applicable, the Final Order, ) its obligations hereunder and under the Loan Documents: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesCases (but excluding a claim on Avoidance Actions (but including, subject to any limitations set forth in upon entry of the DIP Final Order, the proceeds of Avoidance Actions); (ii) 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 (that is subject to the terms of the Security and Intercreditor Agreement and DIP Orderthe Orders) on all of the property of such Loan Parties, whether now existing or hereafter acquired, 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 (limitedCode, and on all cash maintained in the case Bonding Facility Letter of voting equity interests of CFC’s, 65% Credit Account and any investment of the voting equity interestsfunds contained therein; provided that the Bonding Facility Letter of Credit Deposit Amount shall not be subject to the Fees Carve Out or the Bonding Carve Out (as the foregoing terms are defined in the First Out Credit Agreement); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable 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 (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Secured Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1364(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 property of such Loan Parties that is subject to the existing liens which secure the Existing Second Lien Debt (collectively, the “Primed Liens”)) which secure the Existing Secured Debt, all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Administrative Agent, which senior priming Liens in favor of the Administrative Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed LiensLiens (i) through (iv) above, subject in each case to the Fees Carve-Out and as set forth in the DIP Order and the Intercreditor AgreementOrders.
(ab) As Subject to the Security and Intercreditor Agreement, as to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties Party hereby assign assigns and convey conveys as security, grant a security interest in, hypothecatehypothecates, mortgagemortgages, pledge pledges and set sets over unto the Administrative Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties Party in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties Party in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge Party acknowledges that, pursuant to the DIP Interim Order (and, when entered, the Final Order), the Liens in favor of the Administrative Agent on behalf of the Lenders in all of such real property and leasehold instruments interests of such Loan Parties Party shall be perfected without the recordation of any instruments of mortgage or assignment. Such Subject to the Security and Intercreditor Agreement , such Loan Parties Party further agree agrees that, upon the reasonable request of the Administrative Agent, in the exercise of its business judgment, such Loan Parties Party (i) shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Administrative Agent and including customary related deliverablesdeliverables with respect to any Real Property owned by it or leased by it, including, without limitation, a Standard Flood Hazard Determination and, to as set forth in Section 5.10 of the extent applicable, a notification to First Out Credit Agreement and (ii) shall otherwise comply with the applicable Loan Party that that flood insurance coverage under requirements of Section 5.10 of the National Flood Insurance Program is not available or evidence of flood insurance First Out Credit Agreement with respect to such property consistent with the requirements set forth in Section 5.01(c)Real Property.
(bc) The relative priorities All of the Liens described in this Section 2.20 with respect to the Collateral 2.21 shall be effective and perfected upon the 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 DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the AgentInterim Order.
Appears in 1 contract
Priority and Liens. (a) Subject to Section 2.20(c)The Borrowers hereby covenant, each of the Loan Parties hereby covenants represent and agrees warrant that, upon the entry of the DIP Final Order, its obligations the Obligations of the Borrowers hereunder and under the Loan Documents: Documents and in respect of Indebtedness permitted by Section 6.3(v): (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (ii) 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 unencumbered property of the Borrowers and on all cash maintained in the Letter of Credit Account and any direct investments of the funds contained therein, provided that is following the Termination Date amounts in the Letter of -------- Credit Account shall not be subject to the terms of the Intercreditor Agreement Carve-Out; and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases or Borrowers that is subject to valid and perfected Liens in existence at on the time of Filing Date or to valid Liens in existence on the commencement of the Cases Filing Date that are perfected subsequent to such commencement the Filing Date as permitted by Section 546(b) of the Bankruptcy Code (other than certain property or to Permitted Liens, junior to such valid and perfected Liens, including Liens securing the Indebtedness under the Existing Agreement, provided that is subject to upon repayment of all Indebtedness under the existing Liens that secure obligations Existing -------- Agreement, the Obligations of the Borrowers hereunder and under the Loan Documents and in respect of the Existing Second Lien DebtIndebtedness permitted by Section 6.3(v) shall automatically be secured, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1364(c)(2) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien (subject to Liens permitted pursuant to clauses (i) or (ii) of Section 6.1) on all property of the property Borrowers that then secures the Existing Agreement, subject in the case of such Loan Parties clauses (i), (ii) and (iii) only to (x) in the event of the occurrence and during the continuance of an Event of Default or an event that is subject would constitute an Event of Default with the giving of notice or lapse of time or both, the payment of allowed and unpaid professional fees and disbursements incurred by the Borrowers and any statutory committees appointed in the Cases in an aggregate amount not in excess of $3,000,000 (plus all unpaid professional fees and disbursements incurred prior to the existing liens which secure occurrence of an Event of Default to the Existing Second Lien Debt extent allowed by the Bankruptcy Court) and (y) the payment of fees pursuant to 28 U.S.C. (S) 1930 and to the Clerk of the Bankruptcy Court (collectively, the “Primed Liens”"Carve-Out"). The Lenders agree that so long as no Event of Default or event --------- which with the giving of notice or lapse of time or both would constitute an Event of Default shall have occurred and be continuing, all of which Primed Liens the Borrowers shall be primed by permitted to pay compensation and made subject reimbursement of expenses allowed and subordinate to payable under 11 U.S.C. (S) 330 and 11 U.S.C. (S) 331, as the same may be due and payable, and any compensation and expenses previously paid, or accrued but unpaid, prior to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor occurrence of the Agent such Event of Default 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, subject in each case to not reduce the Carve-Out and as set forth in the DIP Order and the Intercreditor AgreementOut.
(ab) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) Borrower, or the possession of which is held by any such Loan Party a Borrower pursuant to leasehold interest, such Loan Parties the Borrowers hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties the Borrowers in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties the Borrowers in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties The Borrowers acknowledge that, pursuant to the DIP Final Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties The Borrowers further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties Borrowers shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.
Appears in 1 contract
Priority and Liens. (a) Subject to Section 2.20(c)Each Loan Party hereby covenants, each of the Loan Parties hereby covenants represents and agrees warrants that, upon the entry of the DIP Interim Order or Final Order, its obligations as applicable, the Obligations of such Loan Party hereunder and under the Loan Documents: :
(i) pursuant to Section section 364(c)(1) of the Bankruptcy CodeCode and subject to the Carve-Out, shall at all times constitute an allowed Superpriority Claim in (excluding any avoidance actions under the Cases, subject to Bankruptcy Code (but including any limitations set forth in the DIP Order; proceeds therefrom)) against such Loan Party;
(ii) pursuant to Section section 364(c)(2) of the Bankruptcy CodeCode and subject to the Carve-Out, shall at all times be secured by a first priority, valid, binding, continuingenforceable and perfected security interests in, enforceable perfected first priority Lien and Liens upon, all unencumbered tangible and intangible property of such Loan Party (other than Excluded Equity), including any such property that is subject to valid and perfected Liens in existence on the terms Petition Date, which Liens are thereafter released or otherwise extinguished in connection with the satisfaction of the Intercreditor Agreement and DIP Orderobligations secured by such Liens (including any avoidance actions under the Bankruptcy Code);
(iii) on all of the property of such Loan Parties, whether now existing or hereafter acquired, that is not subject pursuant 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(bsection 364(c)(3) of the Bankruptcy Code and subject to the Carve-Out, shall at all times be secured by junior, valid, binding, enforceable and perfected security interests in, and Liens upon, all (limitedA) property of each of the Loan Parties’ estates that, on the Petition Date, was subject to a valid and perfected Lien (other than the Liens securing the Prepetition Indebtedness) or becomes subject to a valid Lien perfected (but not granted) after the Petition Date to the extent such post-Petition Date perfection in respect of prepetition claims is expressly permitted under the Bankruptcy Code (the “Permitted Prior Liens”), (B) property of each of the Loan Parties’ estates that is subject to valid rights of setoff, and (C) property of each of the Loan Parties’ estates that is subject to such other Liens as are expressly permitted under Section 8.3 (such Liens described in this clause (C), along with the Permitted Prior Liens, the “DIP Permitted Liens”); provided that the Liens granted under the Loan Documents shall not include Excluded Equity and shall not be subject or subordinate to (1) notwithstanding anything to the contrary in the case of voting equity interests of CFC’sLoan Documents or the DIP Orders, 65% any DIP Permitted Lien or security interest that is avoided and preserved for the benefit of the voting equity interests)Loan Parties and their estates, (2) except as provided in the DIP Orders and the Loan Documents, any Liens arising after the Petition Date including, any Liens or security interests granted in favor of any federal, state municipal or other governmental unit, commission, board or court for any liability of the Loan Parties; or (3) any intercompany or affiliate Liens of the Loan Parties; and
(iv) pursuant to section 364(d)(1) of the Bankruptcy Code and subject only to the Carve-Out and clause (iii) pursuant above, shall at all times be secured by first priority, priming, valid, binding, enforceable and perfected security interests in, and Liens upon, all the Prepetition Collateral.
(b) Subject to the entry of the Orders, the Secured Parties’ Liens and Superpriority Claims as described in Section 364(c)(34.16(a) shall have priority over any claims arising under section 506(c) of the Bankruptcy Code, and shall be secured subject and subordinate only to the Carve-Out. No other claim having a priority superior to or pari passu with that granted to Secured Parties by a validthe Interim Order and Final Order, bindingwhichever is then in effect, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing shall be granted or hereafter acquired, that is subject approved while any Obligations under this Agreement remain outstanding.
(c) Subject to valid, perfected and non-voidable Liens in existence at the time entry of the commencement Orders, except for the Carve-Out, no costs or expenses of administration shall be imposed against any Secured Party or any of the Cases Collateral under sections 105 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 (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1506(c) of the Bankruptcy Code, shall be secured by a validor otherwise, binding, continuing, enforceable perfected first priority senior priming Lien on all and each of the property of such Loan Parties that is subject hereby waives for itself and on behalf of its estate in bankruptcy, any and all rights under sections 105 or 506(c) of the Bankruptcy Code, or otherwise, to the existing liens which secure the Existing Second Lien Debt (collectivelyassert or impose or seek to assert or impose, any such costs or expenses of administration against Administrative Agent, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to Lenders or any other Secured Party.
(to the extent set forth in the DIP Orderd) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the 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, subject in each case to Except for the Carve-Out Out, the Superpriority Claims shall at all times be senior to the rights of each Loan Party, any chapter 11 trustee and, subject to section 726 of the Bankruptcy Code, any chapter 7 trustee, or any other creditor (including, without limitation, post-petition counterparties and as set forth other post-petition creditors) in the DIP Order and Chapter 11 Cases or any subsequent proceedings under the Intercreditor Agreement.
(a) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverablesBankruptcy Code, including, without limitation, a Standard Flood Hazard Determination and, any chapter 7 cases (if any of the Loan Party’s cases are converted to cases under chapter 7 of the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(cBankruptcy Code).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.
Appears in 1 contract
Samples: Senior Secured Superpriority Debtor in Possession Credit Agreement (Lodgenet Interactive Corp)
Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties Borrower and each Guarantor hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP OrderRefinancing Orders, its obligations the Obligations of the Borrower and such Guarantor hereunder and under the Loan Documents: (i) pursuant to Section section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (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 Lien (on all unencumbered tangible and intangible property of the Borrower and such Guarantor and on all cash maintained in the L/C Cash Collateral Account and any investments of the funds contained therein, including any such property that is subject to valid and perfected Liens in existence on the terms Petition Date, which Liens are thereafter released or otherwise extinguished in connection with the satisfaction of the Intercreditor Agreement and DIP Order) on all of the property of obligations secured by such Loan Parties, whether now existing or hereafter acquired, 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 Liens (excluding any avoidance actions under the Bankruptcy Code (limited, in but including the case of voting equity interests of CFC’s, 65% of the voting equity interestsproceeds therefrom)); (iii) pursuant to Section section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all real, personal and mixed property of the Borrower and such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases or Guarantor that is subject to valid and perfected Liens in existence at on the time of the commencement of the Cases that are perfected subsequent Petition Date, junior to such commencement as permitted by Section 546(b) of the Bankruptcy Code valid and perfected Liens (other than certain property that is subject to Liens securing the existing Liens that secure obligations in respect of the Existing Second Lien DebtUnrolled Pre-Petition Secured Indebtedness), which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section section 364(d)(1) of the Bankruptcy Code), shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on upon all tangible and intangible property of the property of Borrower and such Loan Parties Guarantor that is subject to the existing liens which secure the Existing Second Lien Debt (collectively, Unrolled Pre-Petition Secured Indebtedness; provided that the “Primed Liens”), all of which Primed Liens foregoing shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the 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, subject in each case all respects to the Carve-Out and as set forth in the DIP Order and the Intercreditor AgreementOut.
(ab) As Except for the Carve-Out having priority over the Obligations, the Superpriority Claims shall at all times be senior to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf rights of the Lenders all Borrower, each Guarantor, any chapter 11 trustee and, subject to section 726 of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related theretoBankruptcy Code, any lease chapter 7 trustee, or sublease thereofany other creditor (including, all general intangibles relating thereto without limitation, post-petition counterparties and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, other post-petition creditors) in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to Cases or any subsequent proceedings under the Agent and including customary related deliverablesBankruptcy Code, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities any chapter 7 cases if any of the Liens described in this Section 2.20 with respect Borrower’s or the Guarantor’s cases are converted to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities cases under chapter 7 of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the AgentBankruptcy Code.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (Chemtura CORP)
Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties (other than any Loan Party that is not a Debtor) hereby covenants and agrees that, that upon the entry of an Interim Order (and when applicable, the DIP Final Order, ) its obligations hereunder and under the Loan DocumentsDocuments and under the US Secured Agreements: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesCases (but excluding a claim on Avoidance Actions and, subject prior to any limitations set forth in entry of the DIP Final Order, the proceeds of Avoidance Actions); (ii) 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 (that is subject to the terms of the Intercreditor Agreement and DIP OrderAgreement) on all of the property of such US Loan Parties, whether now existing or hereafter acquired, 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 (limited, in the case of voting equity interests of CFC’s, to 65% of the such voting equity interests), and on all of its cash maintained in the L/C Cash Deposit Account and any investment of the funds contained therein, provided that amounts in the L/C Cash Deposit Account shall not be subject to the Carve-Out; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of such US Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable 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 (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1364(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 property of such US Loan Parties that is subject to the existing liens (the “Primed Liens”) which secure the Existing Second Lien Debt (collectively, the “Primed Liens”)Debt, all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the 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 LiensLiens (i) through (iv) above, subject in each case to the Carve-Out and as set forth in the DIP Order and the Intercreditor AgreementOrders.
(a) As to all real property the title to which is held by a US Loan Party (other than any US Loan Party that is not a Debtor) or the possession of which is held by any such US Loan Party pursuant to leasehold interest, such US Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such US Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such US Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such US Loan Parties acknowledge that, pursuant to the DIP Interim Order (and, when entered, the Final Order), the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such US Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such US Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such US Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 2.24 with respect to the Revolving Credit Facility Collateral of the Debtors and the Term Facility Collateral of the Debtors shall be as set forth in the DIP Interim Order (and, when entered, the Final Order) and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.TOC
Appears in 1 contract
Samples: Debt Agreement (Eastman Kodak Co)
Priority and Liens. (a) Subject to Section 2.20(cthe Orders, Holdings and the Borrower hereby covenant, represent and warrant that, upon entry of the Interim Order (and the Final Order, as applicable), the Obligations and subject, in each of clauses (i) through (iv) below, to the Carve-Out (it being understood that all Obligations in respect of the Existing Letters of Credit shall be junior, in the case of each of the Loan Parties hereby covenants and agrees thatclauses (i) through (iv) below), upon to the entry of the DIP Order, its obligations hereunder and under the Loan Documents: other Obligations):
(i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim claims in the CasesBankruptcy Cases having priority over any and all administrative expenses, subject diminution claims (including the Superpriority Claims granted to the Pre-petition Lenders) and all other claims against Holdings, the Borrower and the Subsidiary Guarantors, now existing or hereafter arising, of any limitations set forth kind whatsoever, including all administrative expenses of the kind specified in Sections 503(b) or 507(b) of the DIP Order; Bankruptcy Code;
(ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable and fully-perfected first priority senior security interest in and Lien (that is subject to the terms on all tangible and intangible property of the Intercreditor Agreement Borrower’s and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, Guarantors’ respective estates in the Bankruptcy Cases that is not subject to valid, perfected, non-voidable liens avoidable and enforceable Liens in existence at the time of commencement as of the Cases Petition Date or to valid, non-voidable liens valid Liens in existence at on the time of such commencement Petition Date that are perfected subsequent to such commencement as date to the extent permitted by Section 546(b) of the Bankruptcy Code (limitedCode, including all present and future accounts receivable, inventory, general intangibles, chattel paper, real property, leaseholds, fixtures, machinery and equipment, deposit accounts, patents, copyrights, trademarks, tradenames, rights under license agreements and other intellectual property, capital stock of any Subsidiaries of the Borrower and Guarantors and on all cash and investments maintained in the case Letter of voting equity interests Credit Account (but excluding the Borrower’s and the Guarantors’ rights in respect of CFC’savoidance actions under the Bankruptcy Code, 65% it being understood that, notwithstanding such exclusion of such actions, the proceeds of such actions shall be subject to such Liens under Section 364(c)(2) of the voting equity interestsBankruptcy Code and available to satisfy the Obligations subject to and effective upon entry of the Final Order to the extent approved by the Bankruptcy Court); ;
(iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable and fully-perfected second Lien security interests in and Liens upon all tangible and intangible property of such Loan Partiesthe Borrower and the Guarantors (provided that as set forth in clause (iv) of this sentence, whether now the existing or hereafter acquired, Liens that presently secure the obligations of the Borrower and the Pre-petition Guarantors under the Pre-petition Credit Agreement will be primed by the Lien in favor of the Collateral Agent and the Lenders as described in clause (iv) of this sentence) that is subject to valid, perfected and non-voidable avoidable Liens in existence at on the time of the commencement of the Cases Petition Date or that is subject to valid Liens in existence at on the time of the commencement of the Cases Petition Date that are perfected subsequent to such commencement the Petition Date as permitted by Section 546(b) of the Bankruptcy Code (other than certain the property referred to in clause (iv) below that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv))) below, as to which the Lien in favor of the Collateral Agent and the Lenders will be as described in clause (iv) below, junior to such valid, perfected, and non-avoidable Liens; and and
(iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable and fully-perfected first priority senior priming security interest in and senior priming Lien on all of the tangible and intangible property of such Loan Parties the Borrower and the Guarantors that is subject to the existing liens which Liens that presently secure the Borrower’s and the Pre-petition Guarantors’ pre-petition Indebtedness under the Existing Second Lien Debt Agreement (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by and made but subject and subordinate to (A) the Carve-Out and (B) any Liens in existence on the Petition Date to which the Liens being primed hereby are subject or become subject subsequent to the Petition Date as permitted by Section 546(b) of the Bankruptcy Code), senior to all of such Liens; provided, however, that (w) the Borrower and the Guarantors shall not be required to pledge to the Collateral Agent (i) in excess of 65% of the outstanding voting Equity Interests of any of their respective direct Foreign Subsidiaries or any of the Equity Interests of their respective Foreign Subsidiaries not directly owned by them and (ii) security interests in any asset on which a lien is prohibited by effective (after giving effect to the applicable provisions of the Bankruptcy Code) contractual obligations of the Loan Parties existing on or prior to the Closing Date to the extent set forth enforceable under the circumstances, (x) no portion of the Carve-Out may be utilized to fund the prosecution or assertion of any claims against the Administrative Agent, the Collateral Agent, the Lenders or the Issuing Banks, (y) following the Termination Date, amounts in the DIP Order) the perfected first priority senior Liens to Letter of Credit Account shall not be granted to the Agent, which senior priming Liens in favor of the 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, subject in each case to the Carve-Out and (z) except as otherwise provided in the Orders, no portion of the Carve-Out shall be utilized for the payment of professional fees and disbursements incurred in connection with any challenge to the amount, extent, priority, validity, perfection or enforcement of the indebtedness of the Borrower and the Guarantors owing to the Pre-petition Lenders or to the collateral securing such indebtedness. The Lenders agree that so long as no Event of Default shall have occurred and be continuing, the Borrower and the Guarantors shall be permitted to pay compensation and reimbursement of expenses allowed and payable under Sections 330 and 331 of the Bankruptcy Code, as the same may be due and payable, and the same shall not reduce the Carve-Out.
(b) Subject to the priorities set forth in the DIP Order and the Intercreditor Agreement.
subsection (a) As above and to the Carve-Out, as to all real property the title to which is held by a Loan Party (other than the Borrower or any Loan Party that is not a Debtor) of the Guarantors, or the possession of which is held by Holdings, the Borrower or any such Loan Party of the Guarantors pursuant to leasehold interestinterests and which secures the Pre-petition Indebtedness, such Loan Parties the Borrower and each Guarantor hereby assign assigns and convey conveys as security, grant grants a security interest in, hypothecatehypothecates, mortgagemortgages, pledge pledges and set sets over unto the Collateral Agent on behalf of the Lenders all of the right, title and interest of the Borrower and such Loan Parties Guarantor in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of the Borrower and such Loan Parties Guarantor in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge The Borrower and each Guarantor acknowledges that, pursuant to the DIP OrderOrders, the Liens in favor of the Collateral Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.
Appears in 1 contract
Samples: Credit Agreement (Tronox Inc)
Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties Borrower and each Guarantor hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Interim Order, its obligations the Obligations of the Borrower and such Guarantor hereunder and under the Loan Documents: (i) pursuant to Section section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (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 Lien (on all unencumbered tangible and intangible property of the Borrower and such Guarantor and on all cash maintained in the L/C Cash Collateral Account and any investments of the funds contained therein, including any such property that is subject to valid and perfected Liens in existence on the terms Petition Date, which Liens are thereafter released or otherwise extinguished in connection with the satisfaction of the Intercreditor Agreement and DIP Order) on all of the property of obligations secured by such Loan Parties, whether now existing or hereafter acquired, 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 Liens (excluding any avoidance actions under the Bankruptcy Code (limited, in or the case of voting equity interests of CFC’s, 65% of the voting equity interestsproceeds therefrom); (iii) pursuant to Section section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all real, personal and mixed property of the Borrower and such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases or Guarantor that is subject to valid and perfected Liens in existence at on the time of the commencement of the Cases that are perfected subsequent Petition Date, junior to such commencement as permitted by Section 546(b) of the Bankruptcy Code valid and perfected Liens (other than certain property that is subject to Liens securing the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); Pre-Petition Secured Indebtedness) and (iv) pursuant to Section section 364(d)(1), shall be secured by a perfected priming Lien upon all tangible and intangible property of the Borrower and such Guarantor that presently secure the Pre-Petition Secured Indebtedness; provided that the foregoing shall be subject in all respects to the Carve-Out. Each of the Borrower and each Guarantor hereby covenants, represents and warrants that, upon entry of the Final Order, the Obligations of the Borrower and such Guarantor hereunder and 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 unencumbered tangible and intangible property of the Borrower and such Guarantor and on all cash maintained in the L/C Cash Collateral Account and any investments of the funds contained therein, including any such property that is subject to valid and perfected Liens in existence on the Petition Date, which Liens are thereafter released or otherwise extinguished in connection with the satisfaction of the obligations secured by such Liens (excluding any avoidance actions under the Bankruptcy Code (but including the proceeds therefrom)); (iii) pursuant to section 364(c)(3) of the Bankruptcy Code, shall be secured by a validperfected Lien upon all real, binding, continuing, enforceable perfected first priority senior priming Lien on all personal and mixed property of the property of Borrower and such Loan Parties Guarantor that is subject to the existing liens which secure the Existing Second Lien Debt (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by valid and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of existence on the Agent shall also prime any Petition Date, junior to such valid and perfected Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens, subject in each case to the Carve-Out and as set forth in the DIP Order and the Intercreditor Agreement.
(a) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or Liens securing the possession of which is held by any such Loan Party pursuant to leasehold interestUnrolled Pre-Petition Secured Indebtedness), such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement
Priority and Liens. At all times prior to the Exit Facility Conversion Date:
(a) Subject to Section 2.20(c)Each Loan Party hereby covenants, each of the Loan Parties hereby covenants represents and agrees that, warrants that upon the entry of the each DIP Order, its obligations the Obligations of such Loan Party hereunder and under the Loan Documents: :
(i) pursuant to Section section 364(c)(1) of the Bankruptcy CodeCode and subject to the Carve-Out, shall at all times constitute an allowed Superpriority Claim in (excluding any avoidance actions under the Cases, subject to Bankruptcy Code (but including any limitations set forth in the DIP Order; proceeds therefrom));
(ii) pursuant to Section section 364(c)(2) of the Bankruptcy CodeCode and subject to the Carve-Out, shall at all times be secured by a first priority, valid, binding, continuingenforceable and perfected security interests in, enforceable perfected first priority Lien (and Liens upon, all unencumbered tangible and intangible property of such Loan Party, including any such property that is subject to valid and perfected Liens in existence on the terms Petition Date, which Liens are thereafter released or otherwise extinguished in connection with the satisfaction of the Intercreditor Agreement obligations secured by such Liens (excluding any avoidance actions under the Bankruptcy Code (but including the proceeds therefrom)), and DIP Order) on all of its cash maintained in the property L/C Cash Deposit Account and any investment of such Loan Partiesthe funds contained therein, whether now existing or hereafter acquired, provided that is amounts in the L/C Cash Deposit Account shall not be subject to valid, perfected, nonthe Carve-voidable liens in existence at the time of commencement of the Cases or Out;
(iii) pursuant 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(bsection 364(c)(3) of the Bankruptcy Code and subject to the Carve-Out, shall at all times be secured by junior, valid, binding, enforceable and perfected security interests in, and Liens upon, all (limitedA) property of each of the Loan Parties’ estates that, on the Petition Date, was subject to a valid and perfected Lien (other than the Liens securing the Prepetition Indebtedness) or becomes subject to a valid Lien perfected (but not granted) after the Petition Date to the extent such post-Petition Date perfection in respect of prepetition claims is expressly permitted under the Bankruptcy Code (the “Permitted Prior Liens”), (B) property of each of the Loan Parties’ estates that is subject to valid rights of setoff, and (C) property of each of the Loan Parties’ estates that is subject to such other Liens as are expressly permitted under Section 6.02(c), (d), (e), (f), (g), (h), (i) or (o) (such Liens described in this clause (C), along with the Permitted Prior Liens, the “DIP Permitted Liens”); provided that the Liens granted under the Loan Documents shall not be subject or subordinate to (1) notwithstanding anything to the contrary in the case of voting equity interests of CFC’sLoan Documents or the DIP Orders, 65% any DIP Permitted Lien or security interest that is avoided and preserved for the benefit of the voting equity interests)Loan Parties and their estates, (2) except as provided in the DIP Orders and the Loan Documents, any Liens arising after the Petition Date including, any Liens or security interests granted in favor of any federal, state municipal or other governmental unit, commission, board or court for any liability of the Loan Parties; or (3) any intercompany or affiliate Liens of the Loan Parties; and
(iv) pursuant to section 364(d)(1) of the Bankruptcy Code and subject only to the Carve-Out and clause (iii) pursuant to above, shall at all times be secured by first priority, priming, valid, binding, enforceable and perfected security interests in, and Liens upon, all the Prepetition Collateral.
(b) The Secured Parties’ Liens and Superpriority Claim as described in Section 364(c)(32.26(a) shall have priority over any claims arising under section 506(c) of the Bankruptcy Code, and shall be secured by a validsubject and subordinate only to (i) the Carve-Out, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable 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 (other than certain property that is subject except with respect to the existing L/C Cash Deposit Account and (ii) to the extent provided in the Term Loan/Revolving Facility Intercreditor Agreement, the Liens that secure obligations securing the Obligations under and as defined in the Term Loan Agreement in respect of the Existing Second Term Facility First Lien DebtCollateral. Except as set forth herein or in the Term Loan/Revolving Facility Intercreditor Agreement, which liens no other claim having a priority superior to or pari passu with that granted to Secured Parties by the Interim Order and Final Order, whichever is then in effect, shall be primed by granted or approved while any Obligations under this Agreement remain outstanding.
(c) Except for the liens described in Carve-Out, no costs or expenses of administration shall be imposed against Administrative Agent, Lenders, any other Secured Party or any of the following clause (iv)); and (iv) pursuant to Section 364(d)(1Collateral under sections 105 or 506(c) of the Bankruptcy Code, shall be secured by a validor otherwise, binding, continuing, enforceable perfected first priority senior priming Lien on all and each of the property of such Loan Parties that is subject hereby waives for itself and on behalf of its estate in bankruptcy, any and all rights under sections 105 or 506(c) of the Bankruptcy Code, or otherwise, to the existing liens which secure the Existing Second Lien Debt (collectivelyassert or impose or seek to assert or impose, any such costs or expenses of administration against Administrative Agent, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to Lenders or any other Secured Party.
(to the extent set forth in the DIP Orderd) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the 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, subject in each case to Except for the Carve-Out Out, the Superpriority Claims shall at all times be senior to the rights of each Loan Party, any chapter 11 trustee and, subject to section 726 of the Bankruptcy Code, any chapter 7 trustee, or any other creditor (including, without limitation, post-petition counterparties and as set forth other post-petition creditors) in the DIP Order and Chapter 11 Cases or any subsequent proceedings under the Intercreditor Agreement.
(a) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverablesBankruptcy Code, including, without limitation, a Standard Flood Hazard Determination and, any chapter 7 cases (if any of the Loan Party’s cases are converted to cases under chapter 7 of the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(cBankruptcy Code).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.
Appears in 1 contract
Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties hereby covenants and agrees that, upon pursuant to the entry of the DIP OrderOrders, its obligations hereunder and under the Loan DocumentsDocuments and under the Secured Agreements: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesCases (excluding a claim on Avoidance Actions, subject other than pursuant to any limitations set forth in Section 549 of the DIP OrderBankruptcy Code, but including the proceeds of Avoidance Actions (provided that such proceeds shall be available to satisfy such Superpriority Claims)); (ii) 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 (that is subject to the terms of the New DIP Order and the Intercreditor Agreement and DIP OrderAgreement) on all of the property of such Loan Parties, whether now existing or hereafter acquired, 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 (limited, in the case of voting equity interests of CFC’s, ’s to 65% of the such voting equity interests), and on all of its cash maintained in the L/C Cash Deposit Account and any investment of the funds contained therein, provided that amounts in the L/C Cash Deposit Account or the Secured Agreements Cash Deposit Account (as defined in the Final Order) shall not be subject to the Carve-Out); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable 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 (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on all of the property of such Loan Parties that is subject to the existing liens which secure the Existing Second Lien Debt (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the 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, subject in each case to the Carve-Out and as set forth in the DIP Order and the Intercreditor Agreement.
(a) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.the
Appears in 1 contract
Priority and Liens. (a) Subject to Section 2.20(c), each of the Loan Parties hereby covenants and agrees that, upon Upon the entry of the DIP Interim Order (and the Final Order, its obligations hereunder and under as applicable), the Loan Documents: Obligations:
(i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed a Superpriority Claim in the Cases, subject to any limitations set forth in the DIP Order; Case;
(ii) 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 property of Borrower’s estate in the Case that is subject to the terms as of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, that is Petition Date were not subject to valid, perfected, perfected and non-voidable liens in existence at the time avoidable Liens, including, without limitation, all present and future accounts receivable, inventory, general intangibles, chattel paper, real property, leaseholds, fixtures, machinery and equipment, deposit accounts, patents, copyrights, trademarks, trade names, rights under license agreements and other intellectual property, capital stock of commencement any Subsidiaries of the Cases Borrower 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); any Guarantors;
(iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of Borrower (other than the property that as of the Petition Date were subject to existing Liens that secured the obligations of Borrower under the Existing Agreements and Liens that are junior to such Loan Partiesexisting Liens under the Existing Agreement, whether now existing or hereafter acquired, as to which the Lien in favor of Lender will be as described in clause (iv) of this sentence) that is subject to valid, perfected and non-voidable avoidable Liens in existence at on the time of the commencement of the Cases Petition Date or that is subject to valid Liens in existence at the time as of the commencement of the Cases Petition Date that are perfected subsequent to such commencement the Petition Date as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject or to the existing Permitted Liens, junior to such valid, perfected and non-avoidable Liens, valid and subsequently perfected Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and or Permitted Liens;
(iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on all of the tangible and intangible property of Borrower (including without limitation, such Loan Parties property of Borrower referred to in clause (ii) of this sentence and the proceeds thereof) that is as of the Petition Date was subject to the existing liens which secure Liens that secured Borrower’s pre-petition or pre-filing Indebtedness under the Existing Second Lien Debt Agreements and Liens that are junior to such existing Liens (collectivelybut subject to any Liens in existence as of the Petition Date to which the Liens being primed hereby are subject or become subject subsequent to the Petition Date as permitted by Section 546(b) of the Bankruptcy Code (such Liens to which the primed Liens are subject, collectively the “Primed Prior Liens”), all of which Primed Liens shall be primed by ) and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases Petition Date to provide adequate protection Liens in respect of any the Existing Agreements, senior to all of such Liens; provided, that the Liens and claims granted to Lender in the preceding clauses (i) to (iv) shall be subject to (w) Avoidance Actions (x) in the event of the Primed Liensoccurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both, subject the payment of the collective allowed and unpaid professional fees and disbursements incurred by Borrower and the Official Creditors Committee in the Case in an aggregate amount not to exceed $150,000.00, but in each case case, solely to the extent such allowed and unpaid professional fees are incurred in accordance with the Budget (plus all unpaid professional fees and disbursements incurred prior to the occurrence of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both to the extent such professional fees and disbursements are incurred in accordance with the Budget and are allowed by the Bankruptcy Court at any time), (y) allowed Incentive Plan Payments to Incentive Plan Participants in an aggregate amount not to exceed $150,000.00, and (z) the payment of unpaid fees pursuant to 28 U.S.C. § 1930(a)(6) and to the Clerk of the Bankruptcy Court ((w),(x),(y) and (z), collectively, the “Carve-Out”); provided, further, that no portion of the Carve-Out and as set forth may be utilized to fund prosecution or assertion of any claims against Lender (it being understood that, in the DIP Order and event of the Intercreditor Agreementliquidation of Borrower’s estate, the amount of the Carve-Out shall be funded into a segregated account prior to the making of distributions).
(ab) As to all real property Upon the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf entry of the Lenders all Interim Order (and the Final Order, as applicable), the provisions of the Loan Documents and the Bankruptcy Orders are effective to create in favor of Lender a legal, valid, perfected and enforceable lien in all right, title and interest of such Loan Parties Borrower in all of such owned real property the Collateral described herein, therein and in all such leasehold intereststhe Bankruptcy Orders (having the priority provided for herein, together in each case with all of the right, title therein and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(cBankruptcy Orders).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.
Appears in 1 contract
Priority and Liens. (a) Subject to Section 2.20(c), The Borrower and each of the Loan Parties Guarantors hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Interim Order, its obligations the Obligations of the Borrower and the Guarantors hereunder and under the Loan Documents: Documents and in respect of Indebtedness arising after the Filing Date owed to any Bank (or any of their respective Bank Affiliates) permitted by Section 6.03(vii): (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim administrative expense claims in the Cases, subject to any limitations set forth Cases having priority over all administrative expenses of the kind specified in Sections 503(b) or 507(b) of the DIP OrderBankruptcy Code; (ii) 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 property of the Borrower and the Guarantors (that is subject limited, in the case of leasehold interests, to the terms of the Intercreditor Agreement and DIP Orderproceeds received upon any sale, disposition or termination thereof) on all of the property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, perfected and non-voidable avoidable liens in existence at the time of commencement as of the Cases or to validFiling Date, non-voidable liens including, without limitation, substantially all Inventory of the Borrower and the Guarantors (excluding the Borrower's and the Guarantors' rights in existence at respect of avoidance actions under the time Bankruptcy Code, it being understood that, notwithstanding such exclusion of avoidance actions, the proceeds of such commencement that are perfected subsequent actions shall be available to such commencement as permitted by Section 546(b) repay the Obligations), and on all cash maintained in the Letter of Credit Account and any direct investments of the Bankruptcy Code (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests)funds contained therein; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Partiesthe Borrower and the Guarantors (limited, whether now existing in the case of leasehold interests, to the proceeds received upon any sale, disposition or hereafter acquired, termination thereof) that is subject to valid, perfected and non-voidable avoidable Liens in existence at on the time of the commencement of the Cases Filing Date or that is subject to valid Liens in existence at on the time of the commencement of the Cases Filing Date that are perfected subsequent to such commencement the Filing Date as permitted by Section 546(b) of the Bankruptcy Code or to Permitted Liens, junior to such valid and perfected Liens, subject only to (other than certain property x) in the event of the occurrence and during the continuance of an Event of Default, the payment of allowed and unpaid professional fees and disbursements incurred or accrued by the Borrower, the Guarantors and any statutory committees appointed in the Cases in an aggregate amount not in excess of $5,000,000 (plus all unpaid professional fees and disbursements accrued or incurred prior to the occurrence of an Event of Default to the extent allowed by the Bankruptcy Court at any time) and (y) the payment of unpaid fees pursuant to 28 U.S.C. Section 1930 and to the Clerk of the Bankruptcy Court (collectively, the "Carve-Out"), provided, that, no portion of the Carve-Out shall be utilized to fund litigation against the Agent or the Banks. The Banks agree that is so long as no Event of Default shall have occurred and be continuing, the Borrower and the Guarantors shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. Section 330 and 11 U.S.C. Section 331, as the same may be due and payable, and the same shall not reduce the Carve-Out. Notwithstanding anything to the contrary set forth herein, but subject to the existing "provided" clause of this sentence during the period described in such clause, the claims and Liens that secure obligations referred to above in favor of the Banks (or their respective Bank Affiliates) in respect of the Existing Second Lien Debt, which liens obligations of the Borrower permitted by Section 6.03(vii) arising after the Filing Date shall be primed by (A) pari passu with the liens described in the following clause (iv)); Superpriority Claims and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on all of the property of such Loan Parties that is subject to the existing liens which secure the Existing Second Lien Debt (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any the other Obligations hereunder and under the other Loan Documents to the extent of $200,000,000 and (B) junior to the Superpriority Claims and Liens in respect of the Primed Liensother Obligations hereunder and under the other Loan Documents to the extent the obligations of the Borrower owed to Banks (or their respective Bank Affiliates) that are permitted by Section 6.03(vii) arising after the Filing Date exceed $200,000,000, subject provided that during the period ending upon the entry of the Final Order, Bank One and its banking Affiliates (or another cash management institution satisfactory to the Borrower and the Banks) shall be entitled to the benefit of the pari passu claims and Liens to the extent of $190,000,000 and Banks (and their respective Bank Affiliates) shall be entitled to the benefit of the pari passu claims and Liens to the extent of $10,000,000, in each case as referred to in clause (A) of this sentence in respect of overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing house transfers of funds permitted by Section 6.03(vii), in each case to the Carve-Out and as extent arising after the Filing Date.
(b) Subject to the priorities set forth in the DIP Order and the Intercreditor Agreement.
subsection (a) As above and to the Carve-Out, as to all real property the title to which is held by a Loan Party (other than the Borrower or any Loan Party that is not a Debtor) of the Guarantors, or the possession of which is held by the Borrower or any such Loan Party of the Guarantors pursuant to leasehold interest, such Loan Parties the Borrower and each Guarantor hereby assign assigns and convey conveys as security, grant grants a security interest in, hypothecatehypothecates, mortgagemortgages, pledge pledges and set sets over unto the Agent on behalf of the Lenders Banks all of the right, title and interest of the Borrower and such Loan Parties Guarantor in all of such owned real property and in all such leasehold interests (limited, in the case of leasehold interests, to the proceeds received upon any sale, disposition or termination thereof), together in each case with all of the right, title and interest of the Borrower and such Loan Parties Guarantor in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge The Borrower and each Guarantor acknowledges that, pursuant to the DIP OrderOrders, the Liens in favor of the Agent on behalf of the Lenders Banks in all of such real property and leasehold instruments (limited, in the case of such Loan Parties leasehold interests, to the proceeds received upon any sale, disposition or termination thereof) shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties The Borrower and each Guarantor further agree agrees that, upon the request of the Agent, in the exercise of its business judgment, Borrower and such Loan Parties Guarantor shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms reasonably satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Agent.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Kmart Corp)
Priority and Liens. (a) Subject to Section 2.20(c)The Borrower hereby covenants, each of the Loan Parties hereby covenants represents and agrees warrants that, upon the entry of the DIP Order, its obligations hereunder and under the Loan Documents: Interim Order (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, the Obligations of the Borrower hereunder and under the other Loan Documents shall at all times constitute an allowed Superpriority Claim administrative expense claims in the CasesCase having priority over all administrative expenses of the kind specified in Sections 503(b) or 507(b) of the Bankruptcy Code, subject to any limitations set forth in the DIP Order; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, the Obligations of the Borrower hereunder and under the other Loan Documents shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (that is subject to the terms on all unencumbered property of the Intercreditor Agreement Borrower (including, without limitation, all After-Acquired Property ) and DIP Order) on all cash maintained in the Letter of Credit Account and any direct investments of the property of such Loan Partiesfunds contained therein, whether now existing or hereafter acquired, 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, the Obligations of the Borrower hereunder and under the Loan Documents shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, the Borrower (other than the property that is subject to valid, perfected and non-voidable existing Liens in existence at that presently secure the time obligations of the commencement Borrower under the Existing Agreements, as to which the Lien in favor of the Cases or Agent and the Lenders will be as described in clause (iv) of this sentence) that is subject to valid and perfected Liens in existence at on the time of the commencement of the Cases that are perfected subsequent Filing Date, junior to such commencement as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debtvalid and perfected Liens, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, the Obligations of the Borrower hereunder and under the Loan Documents shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on all property of the Borrower (including, without limitation, accounts receivable, inventory, equipment, general intangibles, intellectual property of such Loan Parties and vehicles and the proceeds thereof) that is subject to the existing liens which Liens that presently secure the Borrower's pre-petition Indebtedness under the Existing Second Lien Debt (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by Agreements and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases Filing Date to provide adequate protection Liens in respect of any of the Primed LiensExisting Agreements, subject in each case case, only to, in the event of the occurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both, (x) the payment of allowed and unpaid professional fees and disbursements thereafter incurred by the Borrower and any statutory committee appointed in the Case in an aggregate amount not in excess of $3,500,000 and (y) the payment of unpaid fees pursuant to 28 U.S.C. ss.1930 (collectively, the "Carve-Out"); provided, that following the Termination Date amounts in the Letter of Credit Account shall not be subject to the Carve-Out and as set forth in (z) the DIP Order and the Intercreditor Agreement.
prior rights (ai) As to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) or the possession of which is held by any such Loan Party pursuant to leasehold interest, such Loan Parties hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Agent on behalf of the Lenders all of Credit Card Banks under the right, title and interest of such Loan Parties in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge that, pursuant to the DIP Order, the Liens in favor of the Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request of the Agent, in the exercise of its business judgment, such Loan Parties shall enter into separate fee and leasehold mortgages in recordable form GE Credit Program Documents with respect to such properties on terms satisfactory to the Agent certain accounts receivable, returned merchandise and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage general intangibles financed thereunder and (ii) Commerce under the National Flood Insurance Program is not available or evidence of flood insurance Commerce Bank Agreement with respect to such property consistent certain documents, inventory and related collateral. The Lenders agree that so long as no Event of Default or event which with the requirements set forth in Section 5.01(c).
(b) The relative priorities giving of notice or lapse of time or both would constitute an Event of Default shall have occurred, the Liens described in this Section 2.20 with respect to the Collateral Borrower shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. ss. 330 and 11 U.S.C. ss. 331, as set forth in the DIP Order same may be due and payable, and the Intercreditor Agreement. The relative priorities of same shall not reduce the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the AgentCarve-Out.
Appears in 1 contract
Priority and Liens. (a) Subject to Section 2.20(c), The Borrower and each of the Loan Parties Subsidiary Guarantors hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Interim Order (and the Final Order, its obligations as applicable), the Obligations of the Borrower and the Subsidiary Guarantors hereunder and under the Loan Documents: Credit Documents (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesSuper-priority Claims, subject to any limitations set forth in the DIP Order; (ii) 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 Collateral, including, without limitation, all cash maintained in the Collateral Account and any investments of the funds contained therein that is subject to the terms otherwise not encumbered by a valid, perfected and non-avoidable Lien as of the Intercreditor Agreement and DIP Order) on all of the property of such Loan PartiesPetition Date, whether now existing or hereafter acquired, 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, Collateral (other than Collateral that is subject to validexisting Liens that secure the Existing Obligations, perfected and non-voidable Liens as to which the Lien in existence at the time favor of the commencement Administrative Agent and the Lenders will be as described in clause (iv) of the Cases or this sentence) that is subject to valid and perfected Liens in existence at on the time of the commencement of the Cases that are Petition Date or valid Liens perfected subsequent to such commencement as permitted by Section 546(b(but not granted) of the Bankruptcy Code (other than certain property that is subject thereafter to the existing Liens that secure obligations extent such post-Petition Date perfection in respect of a pre-Petition Date claim is expressly permitted under the Existing Second Lien DebtBankruptcy Code, and to other valid and perfected Liens which liens shall be primed by are senior (after giving effect to the liens described in Interim Order (and the following clause Final Order, as applicable)) to the Liens granted to the Administrative Agent and the Lenders pursuant to the Interim Order (iv)); and the Final Order, as applicable) and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, the Obligations shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on all of the property of such Loan Parties that is Lien, subject to valid and perfected Liens in existence on the Petition Date (other than existing liens which Liens that secure the Existing Second Lien Debt Obligations) or valid Liens perfected (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (but not granted) thereafter to the extent set forth such post-Petition Date perfection in respect of a pre-Petition Date claim is expressly permitted under the DIP Order) the perfected first priority senior Liens to be granted to the AgentBankruptcy Code, which senior priming Liens in favor on all Pre-Petition Collateral and any property of the Agent shall also prime any Liens Debtors on which a Lien is granted after the commencement of the Cases Petition Date to provide adequate protection Liens in respect of any of the Primed LiensExisting Obligations, subject and subordinate in each case with respect to subclauses (i) through (iv) above, only to the Carve-Out and (as set forth defined in the DIP Order and the Intercreditor AgreementSection 2.18(d)).
(ab) As to all Collateral, including, without limitation, all real property the title to which is held by a Loan Party (other than the Borrower or any Loan Party that is not a Debtor) Subsidiary Guarantor, or the possession of which is held by the Borrower or any such Loan Party Subsidiary Guarantor pursuant to leasehold interest, such Loan Parties each of the Borrower and the Subsidiary Guarantors hereby assign assigns and convey conveys as security, grant grants a security interest in, hypothecatehypothecates, mortgagemortgages, pledge pledges and set sets over unto the Agent Administrative Agent, on behalf of itself and the Lenders Lenders, all of the right, title and interest of the Borrower and such Loan Parties Subsidiary Guarantor in all of such Collateral, including without limitation, all owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties the Borrower and each Subsidiary Guarantor in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge Each of the Borrower and the Subsidiary Guarantors acknowledges that, pursuant to the DIP OrderOrders, the Liens granted in favor of the Administrative Agent (on behalf of the Lenders Lenders) in all of such real property and leasehold instruments of such Loan Parties the Collateral shall be perfected without the recordation of any Uniform Commercial Code financing statements, notices of Lien or other instruments of mortgage or assignment. Such Loan Parties further agree that, upon the request Each of the Borrower and the Subsidiary Guarantors further agrees that (i) the Administrative Agent shall have rights and remedies set forth in Article VIII in respect of the Collateral and (ii) if requested by the Administrative Agent, in each of the exercise of its business judgment, such Loan Parties Borrower and the Subsidiary Guarantors shall enter into separate security agreements, pledge agreements and fee Revolving Credit Agreement -------------------------- and leasehold mortgages in recordable form with respect to such properties Collateral on terms reasonably satisfactory to the Administrative Agent.
(c) Each of the Borrower and the Subsidiary Guarantors acknowledges and agrees that, as adequate protection for any diminution in value of the Existing Lenders' interests in the Pre-Petition Collateral following the Petition Date resulting from the priming described in Section 2.18(a)(iv), the use, sale, lease or other disposition of Pre-Petition Collateral, and the imposition of the automatic stay pursuant to Section 362(a) of the Bankruptcy Code, the Pre-Petition Administrative Agent and including customary related deliverablesthe Existing Lenders shall, including, without limitation, a Standard Flood Hazard Determination and, pursuant to the extent Interim Order (and the Final Order, as applicable), receive from the Petition Date a notification replacement Lien on the Collateral having a priority immediately junior to the applicable Loan Party that that flood insurance coverage under priming and other Liens granted in favor of the National Flood Insurance Program is not available or evidence of flood insurance with respect Administrative Agent and the Lenders pursuant to such property consistent with the requirements set forth in Section 5.01(cCredit Documents and the Orders (subject and subordinate to the Carve-Out and valid and perfected Liens which are senior (after giving effect to the Interim Order (and the Final Order, as applicable)) to the Liens granted to the Administrative Agent and the Lenders pursuant to the Interim Order (and the Final Order, as applicable).
(bd) The relative priorities Notwithstanding any provision of this Agreement or the Liens described in this Section 2.20 Orders to the contrary, except with respect to the Collateral Account as described below, the liens, security interests and Super-priority Claims granted to the Administrative Agent and the Lenders pursuant to this Agreement and the Orders shall be as set forth subject and subordinate to a carve-out (the "Carve-Out") for:
(i) the payment of allowed professional fees and disbursements incurred by the professionals retained, pursuant to Section 327 or 1103(a) of the Bankruptcy Code, by the Obligors and any statutory committee of unsecured creditors appointed in the DIP Order Cases (and any disbursements of any member of such committee) in an aggregate amount not to exceed $1,500,000 (the "Post-Default Carve-Out Amount") on account of such professional fees and disbursements incurred following the Default Point (as defined below), plus the aggregate amount (the "Pre-Default Carve-Out Amount") of all unpaid professional fees and disbursements incurred, accrued or invoiced from the Petition Date until the Default Point that are allowed by the Bankruptcy Court; and (ii) quarterly fees required to be paid pursuant to 28 U.S.C. Section 1930(a)(6) and any fees payable to the Clerk of the Bankruptcy Court; provided that amounts deposited in the Collateral Account under Section 2.04 shall not be subject to the Carve-Out, the Post-Default Carve-Out Amount and the Intercreditor AgreementPre-Default Carve-Out Amount. The relative priorities Until the Default Point, the Obligors shall be permitted to pay compensation and reimbursement of expenses, allowed and payable under Section 330 and 331 of the First Lien First Out LoansBankruptcy Code, as the First Lien Last OutNew Money Loans same may be payable, and the Junior Loans amounts so paid shall be as set forth in the DIP Order free and Section 6.02. All clear of the Liens described in this Section
(c) Notwithstanding anything liens, security interests and Super-priority Claims granted to the contrary hereinAdministrative Agent and the Lenders pursuant to the Credit Documents and/or the Orders, and the amounts so paid shall not more than 65% reduce the Post-Default Carve-Out Amount. For purposes of this Section 2.18(d), "Default Point" means that date when both (x) an Event of Default shall have occurred and (y) the voting equity interests Lenders have ceased making extensions of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or credit to the AgentBorrower hereunder.
Appears in 1 contract
Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties Borrowers hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Final Order, its obligations the Obligations of the Borrowers hereunder and under the Loan Documents: Documents and in respect of Indebtedness permitted by Section 6.3(v): (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (ii) 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 unencumbered property of the Borrowers and on all cash maintained in the Letter of Credit Account and any direct investments of the funds contained therein, provided that is following the Termination Date, amounts in the Letter of Credit Account shall not be subject to the terms of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, nonCarve-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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests)Out; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, the Borrowers that is subject to valid, valid and perfected and non-voidable Liens in existence at on the time of the commencement of the Cases Filing Date or that is subject to valid Liens in existence at on the time of the commencement of the Cases Filing Date that are perfected subsequent to such commencement the Filing Date as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv))Code; and in addition, (iv) pursuant to Section 364(d)(1) of the Bankruptcy CodeCode and other than as expressly set forth in the Final Order, shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on all of the property of such Loan Parties the Borrowers (including, without limitation, inventory, receivables, rights under license agreements, and property, plant and equipment) that is subject to the existing liens which secure (x) the Existing Second Lien Debt obligations of the Parent Borrower and certain of the Subsidiary Borrowers under or in connection with the Pre-Petition Credit Agreement, and (y) other obligations or indebtedness of the Borrowers pursuant to other agreements in an aggregate amount in excess of $2,500,000 (collectively, the “"Primed Liens”"), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Administrative Agent, which senior priming Liens in favor of the Administrative Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens but shall not prime Liens, if any, to the extent such Liens secure obligations (other than obligations under the Pre-Petition Credit Agreement) in an aggregate amount less than or equal to $2,500,000; subject in each case only to (x) in the event of the occurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both (a "Default"), the payment of allowed and unpaid professional fees and disbursements incurred by the Borrowers and any statutory committees appointed in the Cases in an aggregate amount not in excess of $3,000,000 (plus the amount set forth in the most recent Borrowing Base Certificate delivered by the Borrowers to the Administrative Agent of then unpaid professional fees and expenses incurred prior to the occurrence of a Default or an Event of Default to the extent that such unpaid fees and expenses are subsequently allowed by the Bankruptcy Court), and (y) the payment of fees pursuant to 28 U.S.C. ss. 1930 and to the Clerk of the Bankruptcy Court (collectively, the "Carve-Out"), provided that no portion of the Carve-Out shall be utilized for the payment of professional fees and disbursements incurred in connection with any challenge to the amount, extent, priority, validity, perfection or enforcement of the Indebtedness of the Borrowers owed with respect to the parties primed by the priming Liens or to the collateral securing such Indebtedness or any other action against such parties. Amounts in the Letter of Credit Account shall not be subject to the Carve-Out Out. By execution hereof, the Borrowers hereby consent to the priming Liens referenced in clause (iv) above. Notwithstanding the foregoing, so long as no Default or Event of Default shall have occurred and be continuing, the Borrowers shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. ss.ss. 328, 330 and 331, as the same may be due and payable, and any xxxxxnsation and expenses previously paid, or accrued but unpaid, prior to the occurrence of such Default or Event of Default shall not reduce the Carve-Out.
(b) Subject to the priorities set forth in the DIP Order and the Intercreditor Agreement.
subsection (a) As above and to the Carve-Out, as to all real property the title to which is held by a Loan Party (other than any Loan Party that is not a Debtor) Borrower, or the possession of which is held by any such Loan Party a Borrower pursuant to leasehold interest, such Loan Parties the Parent Borrower and each of the Subsidiary Borrowers hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Administrative Agent on behalf of the Lenders all of the right, title and interest of such Loan Parties the Borrowers, in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties the Borrowers in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties The Parent Borrower and each of the Subsidiary Borrowers acknowledge that, pursuant to the DIP Interim Order (or the Final Order, as applicable), the Liens in favor of the Administrative Agent on behalf of the Lenders in all of such real property and leasehold instruments of such Loan Parties the Borrowers shall be perfected without the recordation of any instruments of mortgage or assignment. Such Loan Parties The Parent Borrower and each of the Subsidiary Borrowers further agree that, upon the request of the Administrative Agent, in the exercise of its business judgment, such Loan Parties the Parent Borrower and each of the Subsidiary Borrowers shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c)Administrative Agent.
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything To the extent any Borrower makes aggregate payments to the contrary herein, not more than 65% Lenders in excess of the voting equity interests aggregate amount of any CFC or a Subsidiary all Loans received by such Borrower from the Lenders after the commencement of a CFC the Cases, then such Borrower, after the payment in full of all obligations of the Borrowers in respect of the Commitment and the termination of the Commitment, shall be pledged entitled to a claim under Section 364(c)
(1) of the Bankruptcy Code against each other Borrower, in favor such amount as may be determined by the Bankruptcy Court taking into account the relative benefits received by each such person, and such claims shall be deemed to be subordinate and junior in all respects to the superpriority claims of any Lender or the AgentLenders and the superpriority claims granted as adequate protection to the Primed Parties.
Appears in 1 contract
Samples: Revolving Credit Agreement (Interstate Bakeries Corp/De/)
Priority and Liens. (a) Subject to Section 2.20(c)The Borrower and the Guarantors hereby covenant, each of the Loan Parties hereby covenants represent and agrees warrant that, upon the entry of the DIP Interim Order and continued upon entry of the Final Order, its obligations the Obligations of the Borrower and the Guarantors hereunder and under the other Loan Documents: , (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesSuper-Priority Claims, subject to any limitations set forth in the DIP Order; (ii) 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 (that is subject to on all Collateral, including without limitation, all cash maintained in the terms Cash Collateral Account and the Health-Care-Insurance Receivables Account and any direct investments of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquiredfunds contained therein, that is otherwise not subject to valid, perfected, non-voidable liens in existence at the time of commencement encumbered by a valid and perfected Lien as of the Cases or to validPetition Date, 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 (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at Collateral (other than the time of the commencement of the Cases or Prepetition Collateral) that is subject to valid and perfected Liens in existence at on the time of the commencement of the Cases that are Petition Date or valid Liens perfected subsequent to such commencement as permitted by Section 546(b(but not granted) of the Bankruptcy Code (other than certain property that is subject thereafter to the existing Liens that secure obligations extent such post-Petition Date perfection in respect of a pre-Petition Date claim is expressly permitted under the Existing Second Lien DebtBankruptcy Code, which liens provided, however, that the Liens granted in favor of the Administrative Agent (for the ratable benefit of the Lenders) shall be primed by senior to any Lien which is expressly stated herein to be junior to the liens described Liens in favor of the following clause Administrative Agent (ivfor the ratable benefit of the Lenders)); , and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on all (1) the Prepetition Collateral and (2) any Property of the property Borrower and the Guarantors on which a Lien is granted after the Petition Date, subject and subordinate in each case with respect to subclauses (i) through (iv) above, only to a carve-out (the "Carve-Out") for (x) following the occurrence and during the continuance of a Default or Event of Default and notice from the Administrative Agent of the triggering of such Loan Parties carve-out to the Borrower, its counsel and counsel to any statutory committee appointed in the Cases, the payment (as the same may be due and payable) of fees and disbursements of professionals retained pursuant to Section 327 or 1103(a), as applicable, by the Debtors and any statutory committees appointed in the Cases, which fees and disbursements have been allowed by order of the Bankruptcy Court (including any compensation previously incurred to the extent subsequently allowed), in an aggregate amount not to exceed $1,000,000, and (y) the payment of unpaid fees pursuant to 28 U.S.C. ss. 1930 and any fees payable to the Clerk of the Bankruptcy Court, provided, further that is following the Termination Date, amounts in the Cash Collateral Account shall not be subject to the existing liens which secure Carve-Out. It is hereby understood that, subject only to the Existing Second Lien Debt (collectivelyCarve-Out, the “Primed Liens”no cost or expense of administration under Sections 105, 364(c)(1), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order503(b), 506(c) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor or 507(b) of the Agent shall also prime any Liens granted after Bankruptcy Code, or otherwise, and those resulting from the commencement of the Cases to provide adequate protection Liens in respect conversion of any of the Primed LiensCases pursuant to Section 1112 of the Bankruptcy Code, subject in each case shall be senior to, or pari passu with, the Super-Priority Claims of the Lenders. Without prejudice to any Lender's right to object to the interim or final allowance of any compensation or reimbursement of expenses, the Lenders agree that so long as no Default or Event of Default shall have occurred and be continuing, the Borrower shall be permitted to pay compensation and reimbursement of expenses allowed and payable under Sections 330 and 331 of the Bankruptcy Code, as the same may be payable, and the amounts so paid shall not reduce the Carve-Out and as set forth in the DIP Order and the Intercreditor AgreementOut.
(ab) As to all Collateral, including without limitation, all real property the title to which is held by either the Borrower or a Loan Party (other than any Loan Party that is not a Debtor) Guarantor or the possession of which is held by any such Loan Party the Borrower or a Guarantor pursuant to leasehold interestinterests, such Loan Parties the Borrower and each of the Guarantors hereby assign assigns and convey conveys as security, grant grants a security interest in, hypothecatehypothecates, mortgagemortgages, pledge pledges and set sets over unto the Administrative Agent on behalf (for the ratable benefit of the Lenders Lenders) all of the its right, title and interest of such Loan Parties in all of such Collateral, including without limitation, all owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of such Loan Parties the Borrower or Guarantor in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. Such Loan Parties acknowledge The Borrower and each Guarantor acknowledges that, pursuant to the DIP OrderOrders, the Liens granted in favor of the Administrative Agent on behalf (for the ratable benefit of the Lenders Lenders) in all of such real property and leasehold instruments of such Loan Parties the Collateral shall be perfected without the recordation of any Uniform Commercial Code financing statements, notices of Lien or other instruments of mortgage or assignment. Such Loan Parties The Borrower and each Guarantor further agree that, upon agrees that if requested by the request of the Administrative Agent, in the exercise of its business judgment, such Loan Parties Borrower and the Guarantors shall enter into separate security agreements, pledge agreements and fee and leasehold mortgages in recordable form with respect to such properties Collateral on terms reasonably satisfactory to the Agent and including customary related deliverables, including, without limitation, a Standard Flood Hazard Determination and, to the extent applicable, a notification to the applicable Loan Party that that flood insurance coverage under the National Flood Insurance Program is not available or evidence of flood insurance with respect to such property consistent with the requirements set forth in Section 5.01(c).
(b) The relative priorities of the Liens described in this Section 2.20 with respect to the Collateral shall be as set forth in the DIP Order and the Intercreditor Agreement. The relative priorities of the First Lien First Out Loans, the First Lien Last OutNew Money Loans and the Junior Loans shall be as set forth in the DIP Order and Section 6.02. All of the Liens described in this Section
(c) Notwithstanding anything to the contrary herein, not more than 65% of the voting equity interests of any CFC or a Subsidiary of a CFC shall be pledged in favor of any Lender or the Administrative Agent.
Appears in 1 contract
Samples: Revolving Credit and Guarantee Agreement (Impath Inc)
