Priority and Liens. Each of the Borrowers hereby covenants and agrees that upon the entry of an Interim DIP Order (and when applicable, the Final DIP Order), and at all times thereafter: (a) Pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, administrative expenses of the kinds specified in or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; and (b) which shall at all times be senior to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law. (b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) of the Bankruptcy Code, be subject and subordinate to the Carve-Out and shall be considered an administrative expense allowed under Section 503(b) of the Bankruptcy Code, shall be against each Borrower on a joint and several basis, and shall be payable from and have recourse to all property of the Debtors’ estates (including, without limitation, all claims and causes of action arising under chapter 5 of the Bankruptcy Code and any the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim. (c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below: (i) pursuant to Section 364(d)(1) of the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases; (ii) pursuant to Section 364(c)(3) of the Bankruptcy Code, subject to the Carve-Out, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and (iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility. (d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases. (e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP Order.
Appears in 2 contracts
Samples: Superpriority Senior Secured Priming Debtor in Possession Credit Agreement (Cloud Peak Energy Inc.), Superpriority Senior Secured Priming Debtor in Possession Credit Agreement (Cloud Peak Energy Inc.)
Priority and Liens. Each of the Borrowers hereby covenants and agrees that upon the entry of an Interim DIP Order (and when applicable, the Final DIP Order), and at all times thereafter:
(a) Pursuant The Debtors hereby covenant, represent and warrant that, upon entry of the Interim Order, the Obligations of the Debtors hereunder and under the Loan Documents, including without limitation, all obligations arising in connection with the cash management services provided by Bank One, N.A. and in respect of overdrafts referred to in Section 6.03(v) hereof, (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, having priority over all administrative expenses of the kinds kind specified in Sections 503(b) or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; and Code (b) which shall at all times be senior to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) of the Bankruptcy Code, be subject and subordinate to the Carve-Out and shall be considered an administrative expense allowed under Section 503(b) of the Bankruptcy Code, shall be against each Borrower on a joint and several basis, and claim shall be payable from and have recourse to all pre- and post-petition property of the Debtors’ estates (Debtors including, without limitation, all claims proceeds, dividends, distributions or other amounts received or realized in respect of (x) the Excluded Stock and causes (y) any amounts that are recovered or otherwise received by any of action arising under chapter 5 the Debtors in respect of the Avoidance Actions); (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a perfected first priority Lien on all unencumbered pre- and post-petition property of the Debtors, other than the Excluded Stock and Avoidance Actions, wherever located, including, without limitation, all such unencumbered property located in Mexico, and on all cash maintained in the Letter of Credit Account and any direct investments of the funds contained therein, (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a perfected junior Lien upon all pre- and post-petition property of the Debtors (other than the property that is subject to the existing Liens in favor of the Pre-Petition Agent and the Pre-Petition Lenders that presently secure the Pre-Petition Obligations) that is subject to (A) valid and perfected Liens in existence on the Filing Date, (B) valid Liens in existence on the Filing Date that are perfected subsequent to the Filing Date as permitted by Section 546(b) of the Bankruptcy Code and any the proceeds thereof). Notwithstanding anything (but only to the contrary, such Superpriority Claim extent that the Agent and the Required Lenders shall be pari passu have agreed with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted the Debtors as to the Collateral Agent (for amount secured by such Liens and the benefit extent of the Secured Partiesproperty encumbered thereby), or (C) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable and perfected liens on all CollateralPermitted Liens, and shall constitute, subject to clause (d) below:
(iiv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid perfected first priority priority, senior priming lien on, other than the Receivables Equity, Lien on all property of the existing and after-acquired personal and Debtors (including without limitation, inventory, accounts receivable, equipment, machinery, intellectual property, general intangibles, real property, leasehold capital stock of all direct or indirect Subsidiaries of the Parent and the Borrower and membership interests in real property, limited liability companies and tangible and intangible personal property the proceeds thereof) that is subject to existing Liens that presently secure the Pre-Petition Obligations (but subject to any Liens in existence on the Filing Date to which the Liens being primed hereby are subject or become subject subsequent to the Filing Date as permitted by Section 546(b) of the Borrowers, including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other thanBankruptcy Code) which senior priming liens shall also prime any Liens granted after the Filing Date to provide adequate protection in respect of the Pre-Petition Agreement; subject, in each case, the A/R Securitization Facility Collateralonly to (x), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles to the extent approved and membership interests, capital stock and Equity Interests owned allowed by the BorrowersCourt, in each case, together the event of the occurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the proceeds thereof giving of notice or lapse of time or both, the payment of accrued and all books unpaid professional fees and records relating disbursements incurred by the Debtors and any statutory committees appointed in the Cases due and owing as of the date of such Event of Default or the date the event occurred that would constitute an Event of Default (whether allowed as of such date or subsequently thereto; provided), that, such priority priming lien shall be subject plus $2,000,000 and (y) the payment of unpaid fees pursuant to 28 U.S.C. Section 1930 and to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(ii) pursuant to Section 364(c)(3) Clerk of the Bankruptcy CodeCourt ((x) and (y) collectively, the "Carve-Out"), provided that following the Termination Date amounts in the Letter of Credit Account shall not be subject to the Carve-Out, a valid perfected second priority lien on (A) and provided, further, that, except as otherwise provided in the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) Orders, no portion of the Bankruptcy CodeCarve-Out shall be utilized for the payment of professional fees and disbursements incurred in connection with any challenge to the amount, subject extent, priority, validity, perfection or enforcement of the indebtedness of the Debtors owing to the Pre-Petition Lenders, to the collateral securing such indebtedness, or to the perfection, priority or validity of the Liens granted in favor of the Pre-Petition Lenders with respect thereto or to any other claims of the Pre-Petition Lenders against any one or more of the Debtors. The Lenders agree that so long as no Event of Default or event which with the giving of notice or lapse of time or both would constitute an Event of Default shall have occurred and be continuing, the Debtors shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. Section 330 and 11 U.S.C. Section 331, as the same may be due and payable, and the same shall not reduce the Carve-Out, upon entry of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(db) The Liens granted As to all real property, if any, the Collateral Agent (for title to which is held by the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, Borrower or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control of which is held by any Agent the Borrower or any Secured Party ofof the other Debtors pursuant to leasehold interest, or overand which secures the obligations under the Pre-Petition Agreement, the Borrower and each of the other Debtors hereby assigns and conveys as security, grants a security interest in, hypothecates, mortgages, pledges and sets over unto the Agent on behalf of the Lenders all of the right, title and interest of the Borrower and such other Debtor in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of the Borrower and such other Debtor in and to all buildings, improvements, and fixtures related thereto, any Collaterallease or sublease thereof, as set forth all general intangibles relating thereto and all proceeds thereof. The Borrower and each other Debtor acknowledges that, pursuant to the Orders, the Liens in favor of the Interim DIP OrderAgent on behalf of the Lenders in all of such real property and leasehold instruments, if any, shall be perfected without the recordation of any instruments of mortgage or assignment. The Borrower and each of the other Debtors further agrees that, upon the request of the Agent, the Borrower and such other Debtor shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms reasonably satisfactory to the Agent.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Thermadyne Holdings Corp /De)
Priority and Liens. (a) Each of the Borrowers Credit Parties hereby covenants covenants, represents and agrees that warrants that, upon the entry of an the Interim DIP Financing Order (and when applicable, the Final DIP Order), and at all times thereafter:
(ai) Pursuant pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its the Revolving Obligations shall at all times constitute an allowed Superpriority Claim administrative expense claims in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), Bankruptcy Cases with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-OutCredit Parties, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time now existing or hereafter arising, of any kind or nature whatsoever, including, without limitation, administrative expenses of the kinds specified in or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 506(c), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision 1114 of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; Code and (bii) which shall at all times be senior pursuant to the rights of the Borrowers Sections 364(c)(2) and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A364(d) of the Bankruptcy Code, the Revolving Obligations shall at all times be secured by a perfected first priority Lien on all property and assets of each member of the TP&S Group, except for the Excluded Assets, subject in the case of both (i) and subordinate (ii) only to (A) Senior Liens and (B) the Carve Out (defined below) in an aggregate amount not in excess of $1,050,000 (the "Carve-Out"). The Carve-Out may be used only to pay the fees and expenses of professionals employed by the Credit Parties, the fees and expenses of professionals employed by any statutory committee appointed by the Bankruptcy Court under Section 1102 of the Bankruptcy Code ("Statutory Committee"), and the expenses of members of any such Statutory Committee, provided that all such fees and expenses are authorized to be paid or approved by the Bankruptcy Court to the extent required under the Bankruptcy Code; provided, however, that the Carve-Out and shall not include, apply to or be considered an administrative expense allowed under Section 503(b) available for any fees or expenses incurred by any party, including the Credit Parties or any Statutory Committee, in connection with the initiation or prosecution of the Bankruptcy Codeany claims, shall be against each Borrower on a joint and several basis, and shall be payable from and have recourse to all property of the Debtors’ estates (including, without limitation, all claims and causes of action arising under chapter 5 of action, adversary proceedings or other litigation against the Bankruptcy Code and any Agents, the proceeds thereof). Notwithstanding anything to Lenders, the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to Pre-Petition Agents or the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, nonPre-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(i) pursuant to Section 364(d)(1) of the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the BorrowersPetition Lenders, including, without limitation, all cash challenging the amount, validity, priority or enforceability of, or asserting any defense, claim, counterclaim or offset to, the Pre-Petition Credit Agreement Obligations or the Revolving Obligations or the Liens of the Collateral Agent and cash equivalentsthe Lenders, all surface land, accounts receivable and other receivables (other thanunder either the Pre-Petition Credit Facility or this Agreement, in each caserespect thereof. The Lenders agree that so long as the Termination Date shall not have occurred or the Agents or the Lenders have not exercised any remedies as a result of an Event of Default, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien Credit Parties shall be subject permitted to pay compensation and reimbursement of expenses accrued and payable under 11 U.S.C. ss. 330 and 11 U.S.C. ss. 331, as the same may be due and payable pursuant to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(ii) pursuant to Section 364(c)(3) order of the Bankruptcy CodeCourt, subject to and the same shall not reduce the amount available under the Carve-Out, . The foregoing shall not be construed as a valid perfected second priority lien on (A) consent to the Receivables Equity allowance of any fees and (B) any collateral subject expenses or bonuses referred to a Prior Permitted Lien (other than above and shall not affect the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) right of the Bankruptcy CodeCredit Parties, subject the Agents or the Lenders to object to the allowance and payment of such amounts. Notwithstanding any other provision of this Agreement to the contrary, the Carve-Out, upon entry of the Final DIP Order and Out may be used to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facilityinvestigate (but not prosecute) prepetition Liens.
(db) The Liens granted As to all real property the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject title to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in which is held by any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Credit Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control of which is held by any of the Credit Parties pursuant to a leasehold interest or otherwise, each of the Credit Parties hereby assigns and conveys as security, grants a security interest in, hypothecates, mortgages, pledges and sets over unto the Collateral Agent on behalf of the Lenders all of the right, title and interest of such Credit Party in all of such owned real property and in all such leasehold interests or any Secured other interests, together in each case with all of the right, title and interest of such Credit Party ofin and to all buildings, or overimprovements, and fixtures related thereto, any Collaterallease or sublease thereof, as all general intangibles relating thereto and all proceeds thereof, such assignment, conveyance and security interest to have the priorities set forth in the Interim DIP OrderSection 9.1(a)(i) and (ii) above.
Appears in 1 contract
Samples: Debtor in Possession Financing Agreement (Railworks Corp)
Priority and Liens. Each (a) Subject to the Orders and the Security and Pledge Agreement, the Borrower and each of the Borrowers Guarantors hereby covenants covenants, represents and agrees that warrants that, upon the entry of an the Interim DIP Order (and when the Final Order, as applicable), the Final DIP Order)Obligations of the Borrower and the Guarantors hereunder and under the Loan Documents and in respect of Indebtedness owing to JPMorgan Chase Bank, N.A., any Lender and at all times thereafter:
any of their banking Affiliates permitted by Section 6.03(vi): (ai) Pursuant pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, having priority over all administrative expenses of the kinds kind specified in Sections 503(b) or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; and (b) which shall at all times be senior to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) of the Bankruptcy Code, be subject and subordinate to the Carve-Out and shall be considered an administrative expense allowed under Section 503(b) of the Bankruptcy Code, shall be against each Borrower on a joint and several basis, and shall be payable from and have recourse to all property of the Debtors’ estates (including, without limitation, all claims and causes of action arising under chapter 5 of the Bankruptcy Code and any the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(i) pursuant to Section 364(d)(1) of the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(ii) pursuant to Section 364(c)(3) of the Bankruptcy Code, subject to the Carve-Out, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved shall at all times be secured by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit all unencumbered property of the Secured Parties) Borrower's and such Superpriority Claimthe Guarantors' respective estates in the Cases, subject to the Carve-Out: (i) shall not be subject to Sections 506including, 510without limitation, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases all present and future accounts receivable (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity)than, (y) prior to any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) repurchase thereof by any intercompany or affiliate liens or claims of the Debtors, such accounts receivable sold to the Receivables Subsidiary prior to the Filing Date pursuant to the Permitted Receivable Purchase Facility), inventory, general intangibles, chattel paper, real property, leaseholds, fixtures, machinery and (iii) shall be valid equipment, deposit accounts, patents, copyrights, trademarks, tradenames, rights under license agreements and enforceable against any trustee or any other estate representative appointed or elected in the Casesintellectual property, upon the conversion capital stock of any Subsidiaries of the Cases to a case Borrower and Guarantors (excluding (x) the Borrower's and the Guarantors' rights in respect of avoidance actions under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP Order.it being
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Guaranty Agreement (Tower Automotive Inc)
Priority and Liens. Each of the Borrowers hereby covenants and agrees that upon the entry of an Interim DIP Order (and when applicable, the Final DIP Order), and a) All Obligations shall at all times thereaftertimes, subject to the Carve-Out:
(ai) Pursuant pursuant to Section section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed be entitled to a Superpriority Claim in the Cases: (a) except as set forth in the Interim DIP Order (Claim, jointly and when applicable, the Final DIP Order)severally against each Obligor, with priority over any and all administrative expense claims and unsecured other claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-OutObligors, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time now existing or hereafter arising, of any kind or nature whatsoever, including, without limitation, including any and all administrative expenses or other claims of the kinds kind specified in or ordered pursuant to Bankruptcy Code Sections arising under sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 507(a506(c), 507(b)507, 546(c), 546(d), 726, 1113 and 1114, and any other provision or 1114 of the Bankruptcy Code, whether or not such expenses or claims may become secured by a judgment lien or other non-consensual lien, levy or attachment, and shall at all times be senior to the rights of each Obligor, each Obligor’s estate and any successor trustee, estate representative or any creditor, in the Cases or any subsequent cases or proceedings under the Bankruptcy Code;
(ii) pursuant to section 364(c)(2) of the Bankruptcy Code, be secured by a perfected first priority lien on all DIP Collateral (including, without limitation, all inventory, accounts receivable, general intangibles, contracts, chattel paper, owned real estate, real property leaseholds, securities, fixtures, machinery, equipment, deposit accounts, patents, copyrights, trademarks, trade names, rights under license agreements and other intellectual property and capital stock of subsidiaries of the Obligors, all other tangible and intangible property of the Obligors’ respective estates), and all products and proceeds thereof, that is not subject to any valid Lien in existence on the Petition Date, that was perfected and non-avoidable on the Petition Date or is subsequently perfected pursuant to section 546(b) of the Bankruptcy Code;
(iii) pursuant to section 364(c)(3) of the Bankruptcy Code, be secured by a perfected second priority lien (the “Second Priority DIP Lien”) in and on (x) all DIP Collateral that is subject to the Prepetition Collateral Agent Liens, the Collateral Agent Adequate Protection Liens, and any other valid Lien in existence on the Petition Date, that was perfected and non-avoidable on the Petition Date or is subsequently perfected pursuant to section 546(b) of the Bankruptcy Code, but senior to any and all other liens presently existing or hereinafter granted on such DIP Collateral, and (y) the Non-Priority Lien Capital Stock (subject only to (A) a Lien granted pursuant to sections 364(c)(2), 364(c)(3) or 364(d)(1) of the Bankruptcy Code in favor of lenders (or their agent) providing any ASA DIP Facility or US BioEnergy DIP Facility and any adequate protection Liens with respect to Prepetition Liens that are primed or cash collateral that is utilized and any Liens permitted under the financing documents relating thereto that are permitted to be senior to any ASA DIP Facility or US BioEnergy DIP Facility and (B) any other valid Lien in existence on the Petition Date that (1) was perfected and non-avoidable on the Petition Date or (2) is subsequently perfected pursuant to section 546(b) of the Bankruptcy Code)) and (C) any Permitted Prior Liens; provided that enforcement of such Second Priority DIP Lien shall be restricted as provided set forth in Section 3.9(b); and
(iv) pursuant to section 364(d)(1) of the Bankruptcy Code, be secured by a perfected first priority, senior priming Lien on all of the DIP Collateral that is not subject to the Prepetition Collateral Agent Liens, the Collateral Agent Adequate Protection Liens (the “Priming DIP Lien” and, together with the Second Priority DIP Lien and the Lien set forth in subparagraph (ii) above, the “DIP Liens”), which Priming DIP Lien shall also prime any Liens granted after the commencement of the Cases to provide adequate protection in respect of any of the 2012 Senior Secured Notes Liens and Collateral Agent Adequate Protection Liens, but shall not prime (A) the Prepetition Collateral Agent Liens or Collateral Agent Adequate Protection Liens, if any, in the UBS Cash Collateral, (B) any other valid Liens on DIP Collateral in existence on the Petition Date that were perfected and non-avoidable on the Petition Date or are subsequently perfected pursuant to section 546(b) of the Bankruptcy Code or (C) any Permitted Prior Liens.
(b) The Final Order shall provide that enforcement actions may be taken by the Administrative Agent in respect of the Second Priority DIP Lien following an Event of Default hereunder only if the Prepetition Collateral Agent is pursuing enforcement action in respect of the Prepetition Collateral Agent Liens and the Collateral Agent Adequate Protection Liens, and then may be taken only to the same extent as the enforcement action being pursued by the Prepetition Collateral Agent. To the extent that pursuant to an enforcement action the Administrative Agent receives proceeds in respect of any DIP Collateral that is subject to a Second Priority DIP Lien while any obligations and all other valid Liens in existence on the Petition Date that are subsequently perfected pursuant to section 546(b) of the Bankruptcy Code remain outstanding under Section the Prepetition Credit Agreement, the Administrative Agent shall turn over such proceeds to the Prepetition Collateral Agent for application to the obligations outstanding under the Prepetition Credit Agreement in accordance with the terms thereof.
(c) The Final Order shall provide that all Non-Obligor Subsidiary Reimbursement Obligations shall at all times, subject to the Carve-Out:
(i) pursuant to section 364(c)(1) of the Bankruptcy Code; , be entitled to a Superpriority Non-Obligor Subsidiary Transfer Claim with priority over any and all other claims (other than (x) other Superpriority Non-Obligor Subsidiary Transfer Claims, (y) claims (if any) granted pursuant to section 364(d)(1) of the Bankruptcy Code in favor of lenders (or their agent) providing an ASA DIP Facility or US BioEnergy DIP Facility and (bz) which superpriority claims granted in connection with adequate protection Liens with respect to Prepetition Liens that are primed or cash collateral that is utilized and any Liens permitted under the financing documents relating thereto that are permitted to be senior to any ASA DIP Facility or US BioEnergy DIP Facility) against the Non-Obligor Subsidiary, now existing or hereafter arising, of any kind whatsoever, including any and all administrative expenses or other claims of the kind specified in or arising under sections 105, 326, 328, 330, 331, 503(b), 506(c), 507, 546(c), 726, 1113 or 1114 of the Bankruptcy Code, whether or not such expenses or claims may become secured by a judgment Lien or other non-consensual Lien, levy or attachment, and shall at all times be senior to the rights of the Borrowers and their estatesNon-Obligor Subsidiary, the Non-Obligor Subsidiary’s estate and any successor trustee or other trustee, estate representative to or any creditor, in the extent permitted by law.Cases or any subsequent cases or proceedings under the Bankruptcy Code;
(bii) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(Apursuant to section 364(c)(2) of the Bankruptcy Code, be secured by a perfected first priority Lien on all Prepetition and Postpetition Non-Obligor Subsidiary Transfer Collateral that is not subject to any valid Lien in existence on the Petition Date, that (A) was perfected and subordinate non-avoidable on the Petition Date or (B) is subsequently perfected pursuant to the Carve-Out and shall be considered an administrative expense allowed under Section 503(bsection 546(b) of the Bankruptcy Code, which Lien shall be against each Borrower on a joint and several basis, and shall be payable from and have recourse junior in priority only to all property of the Debtors’ estates Liens (including, without limitation, all claims and causes of action arising under chapter 5 of the Bankruptcy Code and any the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(cif any) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(i) pursuant to Section sections 364(c)(2), 364(c)(3) or 364(d)(1) of the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, all Code in favor of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables one or more lenders (other than, in each case, the A/R Securitization or their agent) providing an ASA DIP Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens or US BioEnergy DIP Facility and any account holding adequate assurance deposits for protection Liens with respect to Prepetition Liens that are primed or cash collateral that is utilized and any Liens permitted under the benefit of the Borrowers’ utility providers during the pendency of the Casesfinancing documents relating thereto that are permitted to be senior to any ASA DIP Facility or US BioEnergy DIP Facility;
(iiiii) pursuant to Section section 364(c)(3) of the Bankruptcy Code, be secured by a perfected junior Lien (together with the Liens granted pursuant to the preceding subsection 3.9(c)(ii), the “Non-Obligor Subsidiary Transfer Liens”) on all Prepetition and Postpetition Non-Obligor Subsidiary Transfer Collateral that is subject to any valid Lien in existence on the Carve-OutPetition Date, a valid perfected second priority lien on that (A) was perfected and non-avoidable on the Receivables Equity and Petition Date or (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) is subsequently perfected pursuant to Section 364(c)(2section 546(b) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there which Lien shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506Liens (if any) granted pursuant to sections 364(c)(2), 510, 549, 550, 364(c)(3) or 551 364(d)(1) of the Bankruptcy Code in favor of lenders providing an ASA DIP Facility or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, US BioEnergy DIP Facility and any adequate protection Liens with respect to Prepetition Liens that are primed or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien cash collateral that is avoided utilized and preserved for any Liens permitted under the benefit of financing documents relating thereto that are permitted to be senior to any ASA DIP Facility or US BioEnergy DIP Facility; and
(iv) be subject to the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion absolute right of any Obligor that makes a Non-Obligor Subsidiary Transfer to set off the amount of the Cases to a case under chapter 7 of the Bankruptcy Code any Indebtedness, Trade Indebtedness or in any other proceedings related obligation owed to any Non-Obligor Subsidiary against the amount of the foregoing, and/or upon the dismissal of any of the Casesall Non-Obligor Subsidiary Reimbursement Obligations owed to such Obligor by such Non-Obligor Subsidiary.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP Order.
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Verasun Energy Corp)
Priority and Liens. (a) Each Loan Party hereby covenants, represents and warrants that, upon entry of the Borrowers hereby covenants Interim Order and agrees that upon execution of this Agreement and the entry of an Interim DIP Order (Security and when applicablePledge Agreement, the Final DIP Order), and Secured Obligations of such Loan Party under the Loan Documents shall at all times thereafterbe:
(ai) Pursuant subject to the Carve-Out, pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed entitled to Superpriority Claim status in the Cases: Case of such Loan Party;
(aii) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only subject to the Carve-Out, pursuant to Section 364(c)(2) of the Bankruptcy Code, secured by a perfected first priority senior security interest and pari passu Lien on (x) with respect to any Loan Party other than a Holding Company Guarantor, all property of such Loan Party other than Excluded Property that is not subject on or as of the A/R Securitization Facility Superpriority ClaimPetition Date to Existing Non-Primed Liens and any amounts that cash collateralize any Letter of Credit issued for the account of such Loan Party (if any) and (y) with respect to any Loan Party that is a Holding Company Guarantor, all Equity Interests other than Excluded Property of any direct Subsidiary of such Holding Company Guarantor and any unencumbered cash, cash accounts and cash investments (including without limitation Permitted Investments) held by such Holding Company Guarantor (the assets described in this clause (y), at any time existing or arisingcollectively, with respect to each Holding Company Guarantor, the "Holding Company Specified Assets"), in each case that are not subject to Existing Non-Primed Liens (and the property of any kind Loan Party described in clauses (x) or nature whatsoever(y) shall exclude any Loan Party's claims and causes of action under Sections 502(d), 544, 545, 547, 548 and 550 of the Bankruptcy Code, or any other avoidance actions under the Bankruptcy Code, but shall include any proceeds or property recovered, unencumbered or otherwise the subject of any such action that is successful);
(iii) subject to the Carve-Out, pursuant to Section 364(c)(3) of the Bankruptcy Code, secured by a perfected junior Lien on (x) with respect to any Loan Party other than a Holding Company Guarantor, all property of such Loan Party that is subject to valid, perfected and unavoidable liens in existence immediately prior to the Petition Date or to valid and unavoidable Liens in existence immediately prior to the Petition Date that are perfected subsequent to the Petition Date as permitted by Sections 546(b) of the Bankruptcy Code and, to the extent applicable, Section 362(b)(18) of the Bankruptcy Code (other than the property (if any) that is subject to existing Liens that secure obligations of such Loan Party under the Pre-Petition Facility as to which such Loan Party is liable (any such Liens, "Primed Liens"), which Liens shall be primed by the Liens described in clause (iv) below) and (y) with respect to any Loan Party that is a Holding Company Guarantor, its Holding Company Specified Assets that are subject to valid and perfected liens in existence on the Petition Date or to valid Liens in existence on the Petition Date that are perfected subsequent to the Petition Date as permitted by Sections 546(b) and 362(b)(18) of the Bankruptcy Code (other than the property (if any) that is subject to existing Liens that secure obligations (if any) of such Holding Company Guarantor under the Pre-Petition Facility as to which such Holding Company Guarantor is liable, which Liens shall be primed by the Liens described in clause (iv) below); and
(iv) subject to the Carve-Out, pursuant to Section 364(d)(1) of the Bankruptcy Code, secured by a perfected first priority, senior priming security interest and lien on all of the property of such Loan Party that is subject to any of the Primed Liens (including, without limitation, administrative expenses inventory, accounts receivable, property, plant, equipment, patents, copyrights, trademarks, tradenames and other intellectual property and capital stock of subsidiaries), which priming lien shall be senior in all respects to the interests in such property of the kinds specified in or ordered pursuant Pre-Petition Lenders of such Loan Party (including, without limitation, adequate protection liens granted to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(asuch Pre-Petition Lenders), 503(b)but shall not be senior to any Existing Non-Primed Liens on such property. Except for the Carve-Out, 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; and (b) which Superpriority Claims shall at all times be senior to the rights of the Borrowers and their estatesLoan Parties, and any successor trustee or other estate representative chapter 11 Trustee and, subject to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) section 726 of the Bankruptcy Code, be subject and subordinate to the Carve-Out and shall be considered an administrative expense allowed under Section 503(b) of the Bankruptcy Codeany chapter 7 Trustee, shall be against each Borrower on a joint and several basis, and shall be payable from and have recourse to all property of the Debtors’ estates or any other creditor (including, without limitation, all claims post-petition counterparties and causes of action arising other post-petition creditors) in the Cases or any subsequent proceedings under chapter 5 of the Bankruptcy Code and any the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(i) pursuant to Section 364(d)(1) of the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(ii) pursuant to Section 364(c)(3) of the Bankruptcy Code, subject to the Carve-Out, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in chapter 7 cases if any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases Loan Parties' cases are converted to a case cases under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the CasesCode.
(eb) All of As to all real property the Liens described in this Section 2.19 that have been granted title to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings which is held by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of titleLoan Party, or the possession or control of which is held by any Loan Party pursuant to leasehold interest, each Loan Party hereby assigns and conveys as security, grants a security interest in, hypothecates, mortgages, pledges and sets over unto the Collateral Agent or any Secured on behalf of the Agents, the Fronting Banks and the DIP Lenders all of the right, title and interest of such Loan Party ofin all of such owned real property and in all such leasehold interests, or overtogether in each case with all of the right, title and interest of such Loan Party in and to all buildings, improvements, and fixtures related thereto, any Collaterallease or sublease thereof, as all general intangibles relating thereto and all proceeds thereof, with the rank and priority set forth in subsection (a). Each Loan Party acknowledges that, pursuant to the Interim Orders, the Liens in favor of the Collateral Agent on behalf of the Agents, the Fronting Banks and the DIP OrderLenders in all of such real property and leasehold instruments shall be perfected without the recordation of any instruments of mortgage or assignment.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Frontiervision Holdings Capital Corp)
Priority and Liens. Each (a) The Borrower and each of the Borrowers Guarantors hereby covenants covenants, represents and agrees that warrants that, upon the entry of an the Interim DIP Order (and when the Final Order, as applicable), the Final DIP Order)Obligations of the Borrower and of the Guarantors hereunder and under the other Loan Documents, and shall at all times thereafter:
(ai) Pursuant constitute allowed Super-Priority Claims under section 364(c)(1) of the Bankruptcy Code and (ii) be secured by a perfected first priority Lien on all Collateral pursuant to Section 364(c)(1364(d) of the Bankruptcy Code, subject only to (x) the Carve-Out and (y) valid, perfected, enforceable and nonavoidable Liens of record existing immediately prior to the Petition Date, but not subject to the Liens under the Prepetition Loan Documents.
(b) As to all Collateral, including all real property the title to which is held by the Borrower or any Guarantor, or the possession of which is held by the Borrower or any Guarantor under a lease, each of the Borrower and the Guarantors hereby assigns and conveys as security, grants a security interest in, hypothecates, mortgages, pledges and sets over unto the Agent for the benefit of the Lenders all of its the right, title and interest of the Borrower and such Guarantor in all of such Collateral, including all owned real property and in all leasehold interests held under such leases, together in each case with all of the right, title and interest of the Borrower and each Guarantor in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof, to secure all of the Borrower's and such Guarantor's Obligations to the Agent and the Lenders under this Agreement, the Orders and under the Bankruptcy Code. Each of the Borrower and each Guarantor acknowledges that, under the Orders, the Liens granted in favor of the Agent (on behalf of the Lenders) in all of the Collateral shall at be perfected without the recordation of any UCC financing statements, notices of Lien or other instruments of mortgage or assignment. Each of the Borrower and each of the Guarantors further agrees that (i) the Agent shall have all times constitute an allowed Superpriority Claim of the rights and remedies set forth in the Cases: Security Agreement and the Orders in respect of the Collateral and (aii) except if requested by the Agent, each of the Borrower and the Guarantors shall enter into additional security documentation (including, pledge agreements and fee mortgages) with respect to such Collateral on terms reasonably satisfactory to the Agent.
(c) The Borrower and the Guarantors acknowledge and agree that, as adequate protection for the use of the Prepetition Lenders' Cash Collateral, the use, sale or lease of the Prepetition Collateral (other than such Cash Collateral), the diminution in value of the Prepetition Lenders' interests in the Prepetition Collateral and as adequate protection for the priming that is being effected as set forth in Section 2.15(a) and the imposition of the automatic stay pursuant to Section 362(a) of the Bankruptcy Code, the Prepetition Lenders shall, pursuant to the Interim DIP Order (and when applicable, the Final DIP Order, as applicable), with receive (i) a Super-Priority Claim junior only to the Super-Priority Claim granted to the Agent and the Lenders, and (ii) a Lien on the Collateral having a priority over any immediately junior to the priming and all administrative expense claims and unsecured claims against the Borrowers or their estates other Liens granted in any favor of the Cases (but junior Agent and the Lenders hereunder and under the other Loan Documents and the Orders. The Liens provided under this Section 2.15(c) shall be subject and subordinate only to the Carve-Out, to the priming and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, administrative expenses other Liens granted in favor of the kinds specified in or ordered pursuant Agent and the Lenders hereunder and under the other Loan Documents and the Orders and to Bankruptcy Code Sections 105valid, 326perfected, 328, 330, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 enforceable and 1114, and any other provision nonavoidable Liens of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; and (b) which shall at all times be senior record existing immediately prior to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by lawPetition Date.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) of the Bankruptcy Code, be subject and subordinate to the Carve-Out and shall be considered an administrative expense allowed under Section 503(b) of the Bankruptcy Code, shall be against each Borrower on a joint and several basis, and shall be payable from and have recourse to all property of the Debtors’ estates (including, without limitation, all claims and causes of action arising under chapter 5 of the Bankruptcy Code and any the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(i) pursuant to Section 364(d)(1) of the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(ii) pursuant to Section 364(c)(3) of the Bankruptcy Code, subject to the Carve-Out, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP Order.
Appears in 1 contract
Samples: Debtor in Possession Revolving Credit and Guaranty Agreement (BMJ Medical Management Inc)
Priority and Liens. (a) Each of the Borrowers Credit Parties hereby covenants covenants, represents and agrees that warrants that, upon the entry of an the Interim DIP Financing Order (and when applicable, the Final DIP Order), and at all times thereafter:
(ai) Pursuant pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its the Obligations shall at all times constitute an allowed Superpriority Claim administrative expense claims in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), Bankruptcy Cases with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-OutCredit Parties, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time now existing or hereafter arising, of any kind or nature whatsoever, including, without limitation, administrative expenses of the kinds specified in or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 506(c), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision 1114 of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; Code and (bii) which shall at all times be senior pursuant to the rights of the Borrowers Sections 364(c)(2) and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A364(d) of the Bankruptcy Code, the Obligations shall at all times be secured by a perfected first priority Lien on all property and assets of each member of the Transit Group, except for the Excluded Assets, and all assets directly related to the Specified Contracts (other than the equipment set forth on Schedule III) subject only to (A) Senior Liens, (B) the Carve Out (defined below) in an aggregate amount not in excess of $1,450,000 (the "Carve-Out") and subordinate (C) the UST/Clerk Fees. The Carve-Out may be used only to pay the fees and expenses of professionals employed by the Credit Parties, the fees and expenses of professionals employed by any statutory committee appointed by the Bankruptcy Court under Section 1102 of the Bankruptcy Code ("Statutory Committee"), and the expenses of members of any such Statutory Committee; provided that all such fees and expenses are authorized to be paid or approved by the Bankruptcy Court to the extent required under the Bankruptcy Code; provided, however, that the Carve-Out and shall not include, apply to or be considered an administrative expense allowed under Section 503(bavailable for any fees or expenses incurred by any party, including the Credit Parties or any Statutory Committee, in connection with the initiation or prosecution (but not investigation) of the Bankruptcy Codeany claims, shall be against each Borrower on a joint and several basis, and shall be payable from and have recourse to all property of the Debtors’ estates (including, without limitation, all claims and causes of action arising under chapter 5 of action, adversary proceedings or other litigation against the Bankruptcy Code and any Administrative Agent or the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(i) pursuant to Section 364(d)(1) of the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the BorrowersLenders, including, without limitation, all cash and cash equivalentschallenging the amount, all surface landvalidity, accounts receivable and other receivables (other thanpriority or enforceability of, in each caseor asserting any defense, claim, counterclaim or offset to, the A/R Securitization Facility Collateral)Obligations or the Liens of the Administrative Agent and the Lenders under this Agreement in respect thereof. The Lenders agree that so long as the Maturity Date shall not have occurred or the Administrative Agent or the Lenders have not exercised any remedies as a result of an Event of Default, inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien Credit Parties shall be subject permitted to pay compensation and reimbursement of expenses accrued and payable under 11 U.S.C.ss. 330 and 11 U.S.C.ss. 331, as the Prior Permitted Liens same may be due and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(ii) pursuant to Section 364(c)(3) of the Bankruptcy Code, subject to the Carve-Out, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved payable xx xxxxxrized by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there and the same shall be no Lien on amounts held in trust by a Specified Borrower for not reduce the A/R Securitization Seller or the secured parties amount available under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) . The foregoing shall not be subject construed as a consent to Sections 506, 510, 549, 550, the allowance of any fees and expenses or 551 bonuses referred to above and shall not affect the right of the Bankruptcy Code Credit Parties, the Administrative Agent or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases Lenders to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted object to the Collateral Agent (for the benefit allowance and payment of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP Ordersuch amounts.
Appears in 1 contract
Samples: Debt Agreement (Railworks Corp)
Priority and Liens. Each (a) Subject to the Approval Order and the Security and Pledge Agreement, the Borrower and each of the Borrowers Guarantors hereby covenants covenants, represents and agrees that warrants that, upon the entry of an Interim DIP Order (and when applicablethe Approval Order, the Final DIP OrderObligations and the other Secured Obligations (including the obligations of the Borrower and the Guarantors in respect of any hedging obligations permitted hereunder and Indebtedness permitted by Section 6.03(viii), in each case owing to JPMCB, any other Lender or any of their respective banking Affiliates) and at all times thereaftersubject, in each of clauses (i) through (iv) below, to the Carve-Out:
(ai) Pursuant pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim claims in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with Cases having priority over any and all administrative expense expenses, diminution claims (including the Replacement Liens and unsecured Junior Adequate Protection Liens) and all other claims against the Borrowers or their estates in any of Borrower and the Cases (but junior only to the Carve-OutGuarantors, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time now existing or hereafter arising, of any kind or nature whatsoever, including, without limitation, including all administrative expenses of the kinds kind specified in Sections 503(b) or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; provided, however, that such claims granted under the Approval Order in respect of Obligations under the Tranche A Facility and (b) which the Tranche B Loan shall at all times be senior in priority to such claims granted under the rights Approval Order in respect of Obligations under the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.Tranche C Loan;
(bii) Such Superpriority Claim shall, for purposes of pursuant to Section 1129(a)(9)(A364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable and fully-perfected first priority senior security interest in and Lien on all tangible and intangible property of the Borrower’s and the Guarantors’ respective estates in the Cases that is not subject to valid, perfected, non-avoidable and enforceable Liens in existence on the Closing Date, including all present and future accounts receivable, inventory, general intangibles, chattel paper, real property, leaseholds, fixtures, machinery and equipment, deposit accounts, patents, copyrights, trademarks, tradenames, rights under license agreements and other intellectual property, capital stock of any Subsidiaries of the Borrower and Guarantors and on all cash and investments maintained in the Letter of Credit Account (but excluding (x) the Borrower’s and the Guarantors’ rights in respect of avoidance actions under the Bankruptcy Code and (y) joint venture interests with respect to which a valid prohibition on pledging such interests or granting Liens thereon exists, it being understood that, notwithstanding such exclusion of such interests, the proceeds of such interests shall be subject and subordinate to the Carve-Out and shall be considered an administrative expense allowed such liens under Section 503(b364(c)(2) of the Bankruptcy Code and available to satisfy the Obligations and the other Secured Obligations);
(iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be against each Borrower on a joint and several basis, and shall be payable from and have recourse to all property of the Debtors’ estates (including, without limitation, all claims and causes of action arising under chapter 5 of the Bankruptcy Code and any the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, secured by valid, binding, enforceablecontinuing, enforceable and fully-perfected security interests in and Liens upon all tangible and intangible property of the Borrower and the Guarantors (other than property described in clauses (ii) and (iv), as to which the liens and security interests in favor of the Administrative Agent and the Lenders will be as described in such clauses) that is subject to valid, perfected and non-avoidable liens in existence on the Closing Date, which security interests and liens in favor of the Administrative Agent and the Lenders are junior to such valid, perfected liens on all Collateral, and shall constitute, subject to clause (d) below:unavoidable liens;
(iiv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid valid, binding, continuing, enforceable and fully-perfected first priority senior priming lien on, other than the Receivables Equity, security interest in and senior priming Lien on all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the BorrowersBorrower and the Guarantors that is subject to existing Liens that pursuant to the terms of the Existing DIP Order are subject and subordinate to the Existing DIP Liens, includingwhich existing liens, without limitationrights and interests (the “Primed Liens”) shall be primed by and made subject and subordinate to the liens granted to the Administrative Agent and the Lenders, all cash which senior priming liens in favor of the Administrative Agent and cash equivalents, all surface land, accounts receivable and other receivables (other than, the Lenders shall also prime any liens granted under the Approval Order or thereafter to provide adequate protection in each case, respect of the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating theretoPrimed Liens; provided, thathowever, that such priority priming lien security interests and liens granted to the Administrative Agent and the Lenders shall be subject and subordinate to (x) the Carve-Out, (y) any valid, perfected and unavoidable interests of other parties arising out of liens existing on the Closing Date, if any, on such property that pursuant to the Prior Permitted terms of the Existing DIP Order are senior in priority to the Existing DIP Liens and (z) statutory liens or security interests arising after the Closing Date and permitted under this Agreement that by operation of law would have priority over a previously perfected security interest; provided, further, that any account holding adequate assurance deposits for valid, perfected and non-voidable liens or security interests that remain in existence after the benefit Closing Date and that were senior to or pari passu with the liens securing obligations under the Existing Pre-Petition Agreement prior to the Closing Date shall maintain such priority or pari passu position relative to the liens securing the Tranche C Loan; provided, however, that (w) all liens granted under the Approval Order to the Administrative Agent and the Lenders to secure Obligations under the Tranche A Facility and the Tranche B Loan shall be senior in priority to all liens granted under the Approval Order to the Administrative Agent and the Lenders to secure Obligations under the Tranche C Loan; (x) the Borrower and the Guarantors shall not be required to pledge to the Administrative Agent in excess of 65% of the Borrowers’ utility providers during the pendency voting capital stock of its direct Foreign Subsidiaries or any of the Cases;
capital stock or interests of its indirect Foreign Subsidiaries (ii) pursuant to Section 364(c)(3) if, in the good faith judgment of the Bankruptcy CodeBorrower, adverse tax consequences would result to the Borrower); (y) no portion of the Carve- Out may be utilized to fund prosecution or assertion of any claims against the Administrative Agent, the Lenders or the Issuing Lenders and (z) following the Termination Date, amounts in the Letter of Credit Account shall not be subject to the Carve-Out. The Lenders agree that so long as no Event of Default shall have occurred and be continuing, a valid perfected second priority lien on (A) the Receivables Equity Borrower and (B) any collateral subject the Guarantors shall be permitted to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) pay compensation and reimbursement of expenses allowed and payable under Sections 330 and 331 of title 11 of the Bankruptcy United States Code, subject to as the same may be due and payable, and the same shall not reduce the Carve-Out, upon entry of .
(b) Subject to the Final DIP Order priorities set forth in subsection (a) above and to the extent approved Carve- Out, as to all real property the title to which is held by the Bankruptcy Court, a valid perfected first priority lien on any property Borrower or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of titleGuarantors, or the possession or control of which is held by any Agent the Borrower or any Secured Party ofof the Guarantors pursuant to leasehold interests and which secured the Existing Pre-Petition Indebtedness prior to the refinancing thereof on the Closing Date, or overthe Borrower and each Guarantor hereby assigns and conveys as security, grants a security interest in, hypothecates, mortgages, pledges and sets over unto the Administrative Agent on behalf of the Lenders all of the right, title and interest of the Borrower and such Guarantor in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of the Borrower and such Guarantor in and to all buildings, improvements, and fixtures related thereto, any Collaterallease or sublease thereof, as set forth all general intangibles relating thereto and all proceeds thereof. The Borrower and each Guarantor acknowledges that, pursuant to the Approval Order, the Liens in favor of the Interim DIP OrderAdministrative Agent on behalf of the Lenders in all of such real property and leasehold instruments shall be perfected without the recordation of any instruments of mortgage or assignment. The Borrower and each Guarantor further agrees that, upon the request of the Administrative Agent following the occurrence of an Event of Default (regardless of whether such Event of Default is continuing), the Borrower and such Guarantor shall enter into separate fee or leasehold mortgages in recordable form with respect to such properties on terms reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Priority and Liens. Each Debtor hereby covenants, represents and warrants that, upon entry of the Borrowers hereby covenants Interim Order, such Debtor shall provide, as security for the Debtors' repayment of the Post-Petition Obligations xxxxxxxxx and agrees that upon under the entry of an Interim DIP Order (and when applicableother Post-Petition Financing Documents, the Final DIP Order), and at all times thereafterfollowing:
(a) Pursuant pursuant to Section 364(c)(1364(c)(l) of the Bankruptcy Code, all of its Obligations shall at all times constitute Bankptcy Code an allowed Superpriority Claim in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), administrative expense claim with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, administrative expenses of the kinds kind specified in or ordered pursuant to Bankruptcy Code Sections 105, 5516/54415-004 CurrenV11617188v10 Case 08-12180-BLS Doc 12-2 Filed 09/24/08 Entered 09/24/08 07:50:23 Desc Exhibit B-1 Page 18 of 58 326, 328, 330, 331, 364, 503(a364(c)(1), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 ) and 1114, and any other provision 762 of the Bankruptcy CodeBankptcy Code or otherwise, as provided under Section 364(c)(1) of the Bankruptcy Code; and (b) which shall at all times be senior but without recourse to the rights proceeds of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.Avoidance Action;
(b) Such Superpriority Claim shall, for purposes of pursuant to Section 1129(a)(9)(A364(c)(2) of the Bankruptcy Banptcy Code, be subject and subordinate to the CarvePost-Out and shall be considered an administrative expense allowed under Section 503(b) of the Bankruptcy Code, shall be against each Borrower on Petition Lender is granted a joint and several basis, and shall be payable from and have recourse to perfected first priority Lien upon all property of the Debtors’ estates (including, without limitation, all claims and causes of action arising under chapter 5 of the Bankruptcy Code and any the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.Unencumbered Collateral;
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(i) pursuant to Section 364(d)(1) of the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(ii) pursuant to Section 364(c)(3) of the Bankruptcy Bankptcy Code, subject a perfected junior Lien upon all Encumbered Collateral, solely to the Carveextent that the Liens on Encumbered Collateral secure Allowed Claims and, to the extent the Liens on Encumbered Collateral secure claims that are not Allowed Claims, the Post-Out, Petition Lender is granted a valid perfected second first priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility upon all such Encumbered Collateral); and
(iiiA) pursuant to Section 364(c)(2) property or assets in which granting of a lien is prohibited under applicable Law or under the Bankruptcy Code, subject to the Carve-Out, upon entry terms of the Final DIP Order and any license or other agreement applicable thereto (but solely to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on that any property or proceeds recovered from any Avoidance Actionssuch restriction is enforceable under applicable Law); provided, thathowever, there that notwithstanding the foregoing, the Post-Petition Lender's Liens shall in all cases and circumstances extend to the proceeds, products, rents, cash and profits of any such property or assets; provided, further, however, the Post-Petition Lender's Liens shall extend to any such property or assets in which granting of a Lien is prohibited, automatically upon the expiration of such prohibition, whereupon such property or assets shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the deemed Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the CarvePost-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the DebtorsPetition Lender, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP Order.B)
Appears in 1 contract
Priority and Liens. Each of the Borrowers hereby covenants and agrees that upon the entry of an Interim DIP Order (and when applicable, the Final DIP Order), and at all times thereafter:
(a) Pursuant The Borrower and each of the Guarantors hereby covenants, represents and warrants that, upon entry of the Final Order, the Obligations of the Borrower and the Guarantors hereunder and under the Loan Documents and in respect of Indebtedness permitted by Section 6.03(vi): (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, having priority over all administrative expenses of the kinds kind specified in Sections 503(b) or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; and (b) which shall at all times be senior to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) of the Bankruptcy Code, be subject and subordinate to the Carve-Out and which shall be considered an administrative expense allowed under Section 503(b) of the Bankruptcy Code, shall be against each Borrower on a joint and several basis, and shall be payable from and have recourse to all property of the Debtors’ estates (including, without limitation, all claims and causes of action arising under chapter 5 of the Bankruptcy Code and any the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim shall be rank pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(i) pursuant to Section 364(d)(1) of the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(ii) pursuant to Section 364(c)(3) of the Bankruptcy Code, subject to the Carve-Out, a valid perfected second priority lien on (A) with the Receivables Equity Superpriority Claims in respect of the obligations under the Working Capital Facility and (B) any collateral subject with respect to a Prior Permitted Lien Copperweld, the Superpriority Claims granted to certain creditors of Copperweld pursuant to the adequate protection stipulation heretofore entered in the Cases on or about February 20, 2001 (other than as the A/R Securitization Facility Collateralsame may be amended, modified or extended from time to time by an order of the Bankruptcy Court, the "COPPERWELD STIPULATION"); and
(iiiii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved shall at all times be secured by the Bankruptcy Court, a valid perfected first priority lien Lien on (x) all present and future Inventory and Receivables of LTV Steel and Georgia Tubing and all present and future Receivables of Copperweld (including, without limitation, the Existing Receivables Portfolio and the Existing Inventory Portfolio) and the proceeds and products thereof, whether now owned or hereafter acquired, (y) the Hennepin Works to secure a portion of the Obligations equal to $28,500,000, and (z) all cash maintained in the Letter of Credit Account and any property or proceeds recovered from any Avoidance Actionsdirect investments of the funds contained therein; provided(iii) subject to paragraph (b) below, thatpursuant to Section 364(c)(3) of the Bankruptcy Code, there shall be no Lien on amounts held in trust secured by a Specified perfected Lien upon (x) all property of the Borrower for and the A/R Securitization Seller Guarantors that is subject to valid and perfected Liens in existence on the Filing Date or to valid Liens in existence on the secured parties under the A/R Securitization Facility.
(d) The Liens granted Filing Date that are perfected subsequent to the Collateral Agent (for the benefit of the Secured PartiesFiling Date as permitted by Section 546(b) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim to Permitted Liens and the liens on the Receivables Equity), (y) any lien that is avoided substantially all assets of VP Buildings and preserved for all other unencumbered (prior to the benefit granting of Liens to secure the Working Capital Facility) assets of the Borrowers Borrower and their estates under Section 551 the Guarantors, junior only to such valid and perfected Liens; subject only to (x) in the event of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims occurrence and during the continuance of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion an Event of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP Order.Default
Appears in 1 contract
Priority and Liens. (a) Each of the Borrowers Credit Parties hereby covenants covenants, represents and agrees that warrants that, upon the entry of an the Interim DIP Financing Order and the Amendment Order (and when applicable, the Final DIP Order), and at all times thereafter:
(ai) Pursuant pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its the Obligations shall at all times constitute an allowed Superpriority Claim administrative expense claims in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), Bankruptcy Cases with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-OutCredit Parties, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time now existing or hereafter arising, of any kind or nature whatsoever, including, without limitation, administrative expenses of the kinds specified in or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 506(c), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision 1114 of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; Code and (bii) which shall at all times be senior pursuant to the rights of the Borrowers Sections 364(c)(2) and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A364(d) of the Bankruptcy Code, the Obligations shall at all times be secured by a perfected first priority Lien on all property and assets of each member of the Transit Group, except for the Excluded Assets, and all assets directly related to the Specified Contracts (other than the equipment set forth on Schedule III) subject only to (A) Senior Liens, (B) the Carve Out (defined below) in an aggregate amount not in excess of $1,450,000 (the "Carve-Out") and subordinate (C) the UST/Clerk Fees. The Carve-Out may be used only to pay the fees and expenses of professionals employed by the Credit Parties, the fees and expenses of professionals employed by any statutory committee appointed by the Bankruptcy Court under Section 1102 of the Bankruptcy Code ("Statutory Committee"), and the expenses of members of any such Statutory Committee; provided that all such fees and expenses are authorized to be paid or approved by the Bankruptcy Court to the extent required under the Bankruptcy Code; provided, however, that the Carve-Out and shall not include, apply to or be considered an administrative expense allowed under Section 503(bavailable for any fees or expenses incurred by any party, including the Credit Parties or any Statutory Committee, in connection with the initiation or prosecution (but not investigation) of the Bankruptcy Codeany claims, shall be against each Borrower on a joint and several basis, and shall be payable from and have recourse to all property of the Debtors’ estates (including, without limitation, all claims and causes of action arising under chapter 5 of action, adversary proceedings or other litigation against the Bankruptcy Code and any Administrative Agent or the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(i) pursuant to Section 364(d)(1) of the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the BorrowersLenders, including, without limitation, all cash and cash equivalentschallenging the amount, all surface landvalidity, accounts receivable and other receivables (other thanpriority or enforceability of, in each caseor asserting any defense, claim, counterclaim or offset to, the A/R Securitization Facility Collateral)Obligations or the Liens of the Administrative Agent, inventorythe Lenders and the Issuer under this Agreement in respect thereof. The Lenders agree that so long as the Tranche B Maturity Date shall not have occurred or the Administrative Agent or the Lenders have not exercised any remedies as a result of an Event of Default, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien Credit Parties shall be subject permitted to pay compensation and reimbursement of expenses accrued and payable under 11 U.S.C. [sec] 330 and 11 U.S.C. [sec] 331, as the Prior Permitted Liens same may be due and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(ii) pursuant to Section 364(c)(3) of the Bankruptcy Code, subject to the Carve-Out, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved payable as authorized by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there and the same shall be no Lien on amounts held in trust by a Specified Borrower for not reduce the A/R Securitization Seller or the secured parties amount available under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) . The foregoing shall not be subject construed as a consent to Sections 506, 510, 549, 550, the allowance of any fees and expenses or 551 bonuses referred to above and shall not affect the right of the Bankruptcy Code Credit Parties, the Administrative Agent or the “equities Lenders to object to the allowance and payment of such amounts.
(b) As to all real property the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in title to which is held by any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Credit Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control of which is held by any of the Credit Parties pursuant to a leasehold interest or otherwise, each of the Credit Parties hereby assigns and conveys as security, grants a security interest in, hypothecates, mortgages, pledges and sets over unto the Administrative Agent on behalf of the Lenders and the Issuer all of the right, title and interest of such Credit Party in all of such owned real property and in all such leasehold interests or any Secured other interests, together in each case with all of the right, title and interest of such Credit Party ofin and to all buildings, or overimprovements, and fixtures related thereto, any Collaterallease or sublease thereof, as all general intangibles relating thereto and all proceeds thereof, such assignment, conveyance and security interest to have the priorities set forth in Section 9.01(a)(i) and (ii) above.
(c) Each of the Interim Credit Parties acknowledges that, pursuant to the DIP OrderFinancing Orders, the Liens in favor of the Administrative Agent on behalf of the Lenders and the Issuer in all of such real property and leasehold interests, and all of the other Collateral, shall be perfected without the taking of any further action, including any recordation of any instruments of mortgage or assignment, or the recording or filing of any financing statements, notices of lien or other similar instruments.
Appears in 1 contract
Samples: Debt Agreement (Railworks Corp)
Priority and Liens. Each The Borrower and each of the Borrowers Guarantors hereby covenants covenants, represents and agrees that warrants that, upon the entry of an Interim DIP Order (and when applicable, the Final DIP Order), and at all times thereafter:
(a) Pursuant to Section 364(c)(1) of the Bankruptcy Code, all the Obligations of its Obligations the Borrower and the Guarantors hereunder and under the Loan Documents shall at all times constitute an allowed Superpriority Claim in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, having priority over all administrative expenses of the kinds kind specified in or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1364(c) of the Bankruptcy Code; and (b) which shall at all times be senior to Code in the rights of the Borrowers and their estates, Cases and any successor trustee or other estate representative to the extent permitted by law.future Chapter 7 Case; and
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) of the Bankruptcy Code, be subject and subordinate to the Carve-Out and shall be considered an administrative expense allowed under Section 503(b) of the Bankruptcy Code, shall be against each Borrower on a joint and several basis, and shall be payable from and have recourse to all property of the Debtors’ estates (including, without limitation, all claims and causes of action arising under chapter 5 of the Bankruptcy Code and any the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(i) pursuant to Section 364(d)(1) of the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(ii) pursuant to Section 364(c)(3) of the Bankruptcy Code, subject to the Carve-Out, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant Pursuant to Section 364(c)(2) of the Bankruptcy Code, the Obligations of the Borrower and the Guarantors hereunder and under the Loan Documents shall at all times be secured by a first priority Lien in all cash and cash equivalents maintained in the Cash Collateral Account and any direct investments of the funds contained therein; subject only in the event of the occurrence and during the continuance of an Event of Default, to the payment of (x)allowed and unpaid fees and disbursements and any future fees and disbursements incurred after the Event of Default by the professionals retained in the Cases pursuant to Section 327 of the Bankruptcy Code, any statutory committee appointed in the Cases and any trustee or examiner appointed or elected in the Cases (including, without limitation, in a superseding chapter 7 case) in an amount not in excess of $5,000,000 in the aggregate and (y)fees pursuant to 28 U.S.C. Section 1930 ((x) and (y) collectively, the "CARVE-OUT"), PROVIDED that following the Termination Date, the cash and cash equivalents in the Cash Collateral Account and any direct investments of the funds contained therein shall not be subject to the Carve-Out. Notwithstanding the foregoing, upon entry so long as a Default or Event of Default shall not have occurred, (i)the Borrower and the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there Guarantors shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties permitted to pay compensation and reimbursement of expenses allowed and payable under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) Sections 330 and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 331 of the Bankruptcy Code, as the same may be due and payable, and (i) ii)such payments shall not be subordinate to, or pari passu with, (w) applied against the Carve-Out. The foregoing shall not be construed as a consent to the allowance of any lien, security interest or claim heretofore or hereinafter granted in any fees and expenses and shall not affect the rights of the Cases Lenders to object to the allowance and payment of any such amounts. No Loans, including the Carve-Out, shall apply to or be available for any Successor Cases (fees or expenses incurred by the Borrower or the Guarantors in connection with the initiation or prosecution of any claims, causes of action, adversary proceeding or other than litigation against the A/R Securitization Facility Superpriority Claim and Lenders, the liens on Issuing Bank, the Receivables Equity)Agent, (y) any lien that is avoided and preserved the Co-Agents or the Administrative Agent for the benefit purpose of challenging the Borrowers and their estates under Section 551 of the Bankruptcy Code amount, validity, priority or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party enforceability of, or overasserting any defense, any Collateralcounterclaim or offset to, as set forth in the Interim DIP OrderObligations or the security interests and liens of the Lenders, the Issuing Bank, the Agent, the Co-Agents or the Administrative Agent.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Bradlees Inc)
Priority and Liens. Each Borrower covenants, represents and warrants that, upon entry of the Borrowers hereby covenants and agrees that upon the entry of an Interim DIP Order (and when applicableFinal Order, the Final DIP Order), and at all times thereafter:
Obligations (ai) Pursuant pursuant to Section section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, having priority over all administrative expenses of the kinds kind specified in or ordered pursuant to Bankruptcy Code Sections sections 105, 326, 328, 330, 331, 364, 503(a503(b), 503(b506(c), 507(a), 507(b), 546(c), 546(d), 726, 1113 ) and 1114, and any other provision 726 of the Bankruptcy Code, as provided under Section 364(c)(1(ii) of the Bankruptcy Code; and (b) which shall at all times be senior pursuant to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(Asection 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a perfected Lien on all unencumbered pre-petition and post-petition property of the Borrowers (other than the portion of the capital stock of each Foreign Subsidiary that is not subject to a Lien securing the Existing Agreements) and subordinate on all cash maintained in the Cash Collateral Account, the Concentration Account and each Depository Account and any direct investments of the funds contained therein, (iii) pursuant to the Carve-Out and shall be considered an administrative expense allowed under Section 503(bsection 364(c)(3) of the Bankruptcy Code, shall be against each Borrower on secured by a joint perfected Lien upon all pre-petition and several basis, and shall be payable from and have recourse to all post-petition property of the Debtors’ estates Borrowers (includingother than the property that is subject to existing Liens that presently secure the obligations of the Borrowers and their respective Subsidiaries under the Existing Agreements, without limitation, all claims as to which the Lien in favor of the Junior Lenders will be as described in clause (iv) below) that is subject to valid and causes of action arising under chapter 5 perfected Liens in existence on the Petition Date or to valid Liens in existence on the Petition Date that are perfected subsequent to the Petition Date as permitted by section 546(b) of the Bankruptcy Code and any the proceeds thereof). Notwithstanding anything or to the contraryPermitted Liens, junior to such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable valid and perfected liens on all Collateral, Liens and shall constitute, subject to clause (d) below:
(iiv) pursuant to Section section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid perfected first priority priming lien on, other than the Receivables Equity, Lien on all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including without limitation, Accounts, instruments, contract rights, chattel paper, general intangibles (including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateralcauses of action), inventoryInventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patentsdocuments of title, trade namesintellectual property, trademarksrights under license agreements, copyrightsreal estate (whether owned or leased) and all proceeds thereof, other general intangibles upon which a Lien has been granted (a) under the Existing Agreements to secure the Borrowers' and membership intereststheir respective Subsidiaries' prepetition Indebtedness under the Existing Agreements and (b) in connection with Adequate Protection Obligations, capital stock and Equity Interests owned in all cases subject only to (1) the Carve-Out, (2) any Liens in existence on the Petition Date to which the Liens being primed by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be Loan Documents are subject or become subject subsequent to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(ii) pursuant to Section 364(c)(3Petition Date as permitted by section 546(b) of the Bankruptcy Code, (3) Liens incurred pursuant to the Senior Subsequent DIP Agreement and (4) the Existing Lender Claim. The Junior Lenders agree that so long as no Default or Event of Default shall have occurred, the Borrowers shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. section 330 and 11 U.S.C. section 331, as the same may be due and payable, and such payments shall not reduce the Carve-Out; provided that following the Termination Date amounts in the Cash Collateral Account shall not be subject to the Carve-Out, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP Order.
Appears in 1 contract
Samples: Junior Subsequent Debtor in Possession Credit Agreement (Nutramax Products Inc /De/)
Priority and Liens. Each (a) Subject to the Orders, the Credit Parties hereby covenant, represent and warrant that, upon entry of the Borrowers hereby covenants and agrees that upon the entry of an Interim DIP Order (and the Final Order, when applicable) by the Bankruptcy Court, the Final DIP Order)Obligations of the Credit Parties, and shall at all times thereaftertimes, pursuant to:
(ai) Pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an joint and several allowed Superpriority Claim superpriority administrative expense claims in the Cases: (aCases having priority over all administrative expenses of the kind specified in Sections 503(b) except as set forth in or 507(b) of the Interim DIP Order (Bankruptcy Code, and when applicable, the Final DIP Order), with priority over any and all administrative expense expenses or other claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, administrative expenses of the kinds specified in or ordered pursuant to Bankruptcy Code Sections arising under sections 105, 326, 328, 330, 331, 364, 503(a503(b), 503(b506(c), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision or 1114 of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; and (b) which shall at all times be senior to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.;
(bii) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A364(c)(2) of the Bankruptcy Code, be secured by a perfected first priority Lien on all pre- and post-petition property of the Credit Parties and their respective estates that as of the Filing Date was not subject to valid, perfected and subordinate to the Carvenon-Out and shall be considered an administrative expense allowed under Section 503(bavoidable Liens as set forth in paragraph 8(a) of the Bankruptcy Code, shall be against each Borrower on a joint Interim Order and several basis, and shall be payable from and have recourse to all property the analogous section of the Debtors’ estates (includingFinal Order, without limitation, all claims and causes with such Lien extending to any proceeds of action arising under chapter 5 of the Bankruptcy Code and any the proceeds thereof). Notwithstanding anything avoidance actions to the contrary, extent set forth in such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.paragraphs in the Orders;
(ciii) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(i) pursuant to Section 364(d)(1) of the Bankruptcy Code, be secured by a valid perfected first priority senior priming lien on, other than the Receivables Equity, Lien on all of the existing pre- and afterpost-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal petition property of the Borrowers, including, without limitation, Credit Parties and their respective estates that as of the Filing Date was subject to existing Liens securing the Credit Parties’ Indebtedness under the Existing Facilities and any secured obligations to any Specified Guilds (the “Primed Liens”). Such priming Lien shall be senior to (A) all cash and cash equivalents, all surface land, accounts receivable and other receivables Primed Liens (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien but shall be subject to and not senior to any valid, perfected and unavoidable interests of other Persons arising out of Liens, if any, on such property in existence as of the Prior Permitted Filing Date to the extent such Persons’ Liens were senior to the Primed Liens and unavoidable under applicable non bankruptcy law) and (B) any account holding Liens granted after the Filing Date to provide adequate assurance deposits for the benefit protection in respect of the Borrowers’ utility providers during Existing Facilities or the pendency of the CasesGuild Liens;
(iiiv) pursuant to Section 364(c)(3) of the Bankruptcy Code, subject to be secured by a perfected junior Lien upon all pre- and post-petition property of the Carve-Out, a valid perfected second priority lien on (A) the Receivables Equity Credit Parties and (B) any collateral subject to a Prior Permitted Lien their respective estates (other than the A/R Securitization Facility Collateral); and
property described in clauses (iiiii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) of this Section 2.16 as to which the liens in favor of the Administrative Agent with respect to such property shall be valid as described in such clauses) that is subject to valid, perfected and enforceable against any trustee or any other estate representative appointed or elected unavoidable Liens in existence on the CasesFiling Date, upon the conversion of any of the Cases junior to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoingsuch valid, and/or upon the dismissal of any of the Cases.
(e) All perfected and non-avoidable Liens; Each of the Liens described granted in this Section 2.19 that have been granted favor of the Administrative Agent pursuant to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP Order.preceding clauses
Appears in 1 contract
Priority and Liens. Each (a) Subject to the Orders and the Security and Pledge Agreement, the Borrower and each of the Borrowers Guarantors hereby covenants covenants, represents and agrees that warrants that, upon the entry of an the Interim DIP Order (and when the Final Order, as applicable), the Final DIP OrderObligations and the other Secured Obligations (including the obligations of the Borrower and the Guarantors in respect of any hedging obligations permitted hereunder and Indebtedness permitted by Section 6.03(viii), in each case owing to JPMCB, any other Lender or any of their respective banking Affiliates) and at all times thereaftersubject, in each of clauses (i) through (iv) below, to the Carve-Out:
(ai) Pursuant pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim claims in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with Cases having priority over any and all administrative expense expenses, diminution claims (including the Superpriority Claims granted to the Existing Lenders) and unsecured all other claims against the Borrowers or their estates in any of Borrower and the Cases (but junior only to the Carve-OutGuarantors, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time now existing or hereafter arising, of any kind or nature whatsoever, including, without limitation, including all administrative expenses of the kinds kind specified in Sections 503(b) or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; and (b) which shall at all times be senior to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.;
(bii) Such Superpriority Claim shall, for purposes of pursuant to Section 1129(a)(9)(A364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable and fully-perfected first priority senior security interest in and Lien on all tangible and intangible property of the Borrower’s and the Guarantors’ respective estates in the Cases that is not subject to valid, perfected, non-avoidable and enforceable Liens in existence as of the Filing Date or valid Liens in existence on the Filing Date that are perfected subsequent to such date to the extent permitted by Section 546(b) of the Bankruptcy Code, including all present and future accounts receivable, inventory, general intangibles, chattel paper, real property, leaseholds, fixtures, machinery and equipment, deposit accounts, patents, copyrights, trademarks, tradenames, rights under license agreements and other intellectual property, capital stock of any Subsidiaries of the Borrower and Guarantors and on all cash and investments maintained in the Letter of Credit Account (but excluding (x) the Borrower’s and the Guarantors’ rights in respect of avoidance actions under the Bankruptcy Code and (y) joint venture interests with respect to which a valid prohibition on pledging such interests or granting Liens thereon exists, it being understood that, notwithstanding such exclusion of such interests, the proceeds of such interests shall be subject and subordinate to the Carve-Out and shall be considered an administrative expense allowed such liens under Section 503(b364(c)(2) of the Bankruptcy Code and available to satisfy the Obligations and the other Secured Obligations);
(iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be against each Borrower on a joint secured by valid, binding, continuing, enforceable and several basis, fully-perfected security interests in and shall be payable from Liens upon all tangible and have recourse to all intangible property of the Debtors’ estates Borrower and the Guarantors (includingprovided that as set forth in clause (iv) of this sentence, without limitationthe existing Liens that presently secure the obligations of the Borrower and the Existing Guarantors under the Existing Agreement will be primed by the Lien in favor of the Administrative Agent and the Lenders as described in clause (iv) of this sentence) that is subject to valid, all claims perfected and causes of action arising under chapter 5 non-avoidable Liens in existence on the Filing Date or that is subject to valid Liens in existence on the Filing Date that are perfected subsequent to the Filing Date as permitted by Section 546(b) of the Bankruptcy Code and any (other than the proceeds thereof). Notwithstanding anything property referred to in clause (iv) below that is subject to the contraryexisting Liens described in clause (iv) below, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted as to which the Collateral Agent (for the benefit Lien in favor of the Secured PartiesAdministrative Agent and the Lenders will be as described in clause (iv) securing the Obligations are continuingbelow), junior to such valid, binding, enforceable, perfected and non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:Liens; and
(iiv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid valid, binding, continuing, enforceable and fully-perfected first priority senior priming lien on, other than the Receivables Equity, security interest in and senior priming Lien on all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, without limitation, all cash Borrower and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be Guarantors that is subject to existing Liens that presently secure Borrower’s and the Prior Permitted Existing Guarantors’ pre-petition Indebtedness under the Existing Agreement (but subject and subordinate to (A) the Carve-Out and (B) any Liens and any account holding adequate assurance deposits for in existence on the benefit of Filing Date to which the Borrowers’ utility providers during Liens being primed hereby are subject or become subject subsequent to the pendency of the Cases;
(ii) pursuant to Filing Date as permitted by Section 364(c)(3546(b) of the Bankruptcy Code), senior to all of such Liens; provided, however, that (w) the Borrower and the Guarantors shall not be required to pledge to the Administrative Agent in excess of 65% of the voting capital stock of its direct Foreign Subsidiaries or any of the capital stock or interests of its indirect Foreign Subsidiaries (if, in the good faith judgment of the Borrower, adverse tax consequences would result to the Borrower), (x) no portion of the Carve-Out may be utilized to fund prosecution or assertion of any claims against the Administrative Agent, the Lenders or the Issuing Lenders, (y) following the Termination Date, amounts in the Letter of Credit Account shall not be subject to the Carve-Out and (z) except as otherwise provided in the Orders, no portion of the Carve-Out shall be utilized for the payment of professional fees and disbursements incurred in connection with any challenge to the amount, extent, priority, validity, perfection or enforcement of the indebtedness of the Borrower and the Guarantors owing to the Existing Lenders or to the collateral securing such indebtedness. The Lenders agree that so long as no Event of Default shall have occurred and be continuing, the Borrower and the Guarantors shall be permitted to pay compensation and reimbursement of expenses allowed and payable under Sections 330 and 331 of title 11 of the United States Code, as the same may be due and payable, and the same shall not reduce the Carve-Out.
(b) Subject to the priorities set forth in subsection (a) above and to the Carve-Out, a valid perfected second priority lien on (A) as to all real property the Receivables Equity and (B) any collateral subject title to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved which is held by the Bankruptcy Court, a valid perfected first priority lien on any property Borrower or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of titleGuarantors, or the possession or control of which is held by any Agent the Borrower or any Secured Party ofof the Guarantors pursuant to leasehold interests and which secures the Existing Indebtedness, or overthe Borrower and each Guarantor hereby assigns and conveys as security, grants a security interest in, hypothecates, mortgages, pledges and sets over unto the Administrative Agent on behalf of the Lenders all of the right, title and interest of the Borrower and such Guarantor in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of the Borrower and such Guarantor in and to all buildings, improvements, and fixtures related thereto, any Collaterallease or sublease thereof, as set forth all general intangibles relating thereto and all proceeds thereof. The Borrower and each Guarantor acknowledges that, pursuant to the Orders, the Liens in favor of the Interim DIP OrderAdministrative Agent on behalf of the Lenders in all of such real property and leasehold instruments shall be perfected without the recordation of any instruments of mortgage or assignment. The Borrower and each Guarantor further agrees that, upon the request of the Administrative Agent following the occurrence of an Event of Default (regardless of whether such Event of Default is continuing), the Borrower and such Guarantor shall enter into separate fee or leasehold mortgages in recordable form with respect to such properties on terms reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Guaranty Agreement (Delphi Corp)
Priority and Liens. Each Borrower covenants, represents and warrants that, upon entry of the Borrowers hereby covenants and agrees that upon the entry of an Interim DIP Order (and when applicableFinal Order, the Final DIP Order), and at all times thereafter:
Obligations (ai) Pursuant pursuant to Section section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, having priority over all administrative expenses of the kinds kind specified in or ordered pursuant to Bankruptcy Code Sections sections 105, 326, 328, 330, 331, 364, 503(a503(b), 503(b506(c), 507(a), 507(b), 546(c), 546(d), 726, 1113 ) and 1114, and any other provision 726 of the Bankruptcy Code, as provided under Section 364(c)(1(ii) of the Bankruptcy Code; and (b) which shall at all times be senior pursuant to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(Asection 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a perfected first priority Lien on all unencumbered prepetition and postpetition property of the Borrowers (other than the portion of the capital stock of each Foreign Subsidiary that is not subject to a Lien securing the Existing Agreements) and subordinate on all cash maintained in the Cash Collateral Account, the Concentration Account and each Depository Account and any direct investments of the funds contained therein, (iii) pursuant to the Carve-Out and shall be considered an administrative expense allowed under Section 503(bsection 364(c)(3) of the Bankruptcy Code, shall be against each Borrower on secured by a joint perfected Lien upon all prepetition and several basis, and shall be payable from and have recourse to all postpetition property of the Debtors’ estates Borrowers (includingother than the property that is subject to existing Liens that presently secure the obligations of the Borrowers and their respective Subsidiaries under the Existing Agreements, without limitation, all claims as to which the Lien in favor of the Agent and causes of action arising under chapter 5 the Lenders will be as described in clause (iv) below) that is subject to valid and perfected Liens in existence on the Petition Date or to valid Liens in existence on the Petition Date that are perfected subsequent to the Petition Date as permitted by section 546(b) of the Bankruptcy Code and any the proceeds thereof). Notwithstanding anything or to the contraryPermitted Liens, junior to such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable valid and perfected liens on all Collateral, Liens and shall constitute, subject to clause (d) below:
(iiv) pursuant to Section section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid perfected first priority priority, senior priming lien on, other than the Receivables Equity, Lien on all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including without limitation, Accounts, instruments, contract rights, chattel paper, general intangibles (including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateralcauses of action), inventoryInventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patentsdocuments of title, trade namesintellectual property, trademarksrights under license agreements, copyrightsreal estate (whether owned or leased) and all proceeds thereof, other general intangibles and membership interests, capital stock and Equity Interests owned by upon which a Lien has been granted (a) under the Existing Agreements to secure the Borrowers' and their respective Subsidiaries' prepetition Indebtedness under the Existing Agreements and (b) in connection with Adequate Protection Obligations, in each case, together with all cases subject only to (1) the proceeds thereof Carve-Out and all books (2) any Liens in existence on the Petition Date to which the Liens described in clauses (a) and records relating thereto; provided, that, such priority priming lien shall be (b) above are subject or become subject subsequent to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(ii) pursuant to Section 364(c)(3Petition Date as permitted by section 546(b) of the Bankruptcy Code. The Lenders agree that so long as no Default or Event of Default shall have occurred, the Borrowers shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. ss. 330 and 11 U.S.C. ss. 331, as the same may be due and payable, and such payments shall not reduce the Carve-Out; provided that following the Termination Date amounts in the Cash Collateral Account shall not be subject to the Carve-Out, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP Order.
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Nutramax Products Inc /De/)
Priority and Liens. Each (a) Subject to the Orders and the Security and Pledge Agreement, the Borrower and each of the Borrowers Guarantors hereby covenants covenants, represents and agrees that warrants that, upon the entry of an the Interim DIP Order (and when the Final Order, as applicable), the Final DIP OrderObligations and the other Secured Obligations (including the obligations of the Borrower and the Guarantors in respect of any hedging obligations permitted hereunder and Indebtedness permitted by Section 6.03(viii), in each case owing to JPMCB, any other Lender or any of their respective banking Affiliates) and at all times thereaftersubject, in each of clauses (i) through (iv) below, to the Carve-Out:
(ai) Pursuant pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim claims in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with Cases having priority over any and all administrative expense expenses, diminution claims (including the Superpriority Claims granted to the Existing Lenders) and unsecured all other claims against the Borrowers or their estates in any of Borrower and the Cases (but junior only to the Carve-OutGuarantors, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time now existing or hereafter arising, of any kind or nature whatsoever, including, without limitation, including all administrative expenses of the kinds kind specified in Sections 503(b) or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; and (b) which shall at all times be senior to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.;
(bii) Such Superpriority Claim shall, for purposes of pursuant to Section 1129(a)(9)(A364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable and fully-perfected first priority senior security interest in and Lien on all tangible and intangible property of the Borrower's and the Guarantors' respective estates in the Cases that is not subject to valid, perfected, non-avoidable and enforceable Liens in existence as of the Filing Date or valid Liens in existence on the Filing Date that are perfected subsequent to such date to the extent permitted by Section 546(b) of the Bankruptcy Code, including all present and future accounts receivable, inventory, general intangibles, chattel paper, real property, leaseholds, fixtures, machinery and equipment, deposit accounts, patents, copyrights, trademarks, tradenames, rights under license agreements and other intellectual property, capital stock of any Subsidiaries of the Borrower and Guarantors and on all cash and investments maintained in the Letter of Credit Account (but excluding (x) the Borrower's and the Guarantors' rights in respect of avoidance actions under the Bankruptcy Code and (y) joint venture interests with respect to which a valid prohibition on pledging such interests or granting Liens thereon exists, it being understood that, notwithstanding such exclusion of such interests, the proceeds of such interests shall be subject and subordinate to the Carve-Out and shall be considered an administrative expense allowed such liens under Section 503(b364(c)(2) of the Bankruptcy Code and available to satisfy the Obligations and the other Secured Obligations);
(iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be against each Borrower on a joint secured by valid, binding, continuing, enforceable and several basis, fully-perfected security interests in and shall be payable from Liens upon all tangible and have recourse to all intangible property of the Debtors’ estates Borrower and the Guarantors (includingprovided that as set forth in clause (iv) of this sentence, without limitationthe existing Liens that presently secure the obligations of the Borrower and the Existing Guarantors under the Existing Agreement will be primed by the Lien in favor of the Administrative Agent and the Lenders as described in clause (iv) of this sentence) that is subject to valid, all claims perfected and causes of action arising under chapter 5 non-avoidable Liens in existence on the Filing Date or that is subject to valid Liens in existence on the Filing Date that are perfected subsequent to the Filing Date as permitted by Section 546(b) of the Bankruptcy Code and any (other than the proceeds thereof). Notwithstanding anything property referred to in clause (iv) below that is subject to the contraryexisting Liens described in clause (iv) below, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted as to which the Collateral Agent (for the benefit Lien in favor of the Secured PartiesAdministrative Agent and the Lenders will be as described in clause (iv) securing the Obligations are continuingbelow), junior to such valid, binding, enforceable, perfected and non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:Liens; and
(iiv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid valid, binding, continuing, enforceable and fully-perfected first priority senior priming lien on, other than the Receivables Equity, security interest in and senior priming Lien on all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, without limitation, all cash Borrower and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be Guarantors that is subject to existing Liens that presently secure Borrower's and the Prior Permitted Existing Guarantors' pre-petition Indebtedness under the Existing Agreement (but subject and subordinate to (A) the Carve-Out and (B) any Liens and any account holding adequate assurance deposits for in existence on the benefit of Filing Date to which the Borrowers’ utility providers during Liens being primed hereby are subject or become subject subsequent to the pendency of the Cases;
(ii) pursuant to Filing Date as permitted by Section 364(c)(3546(b) of the Bankruptcy Code), senior to all of such Liens; provided, however, that (w) the Borrower and the Guarantors shall not be required to pledge to the Administrative Agent in excess of 65% of the voting capital stock of its direct Foreign Subsidiaries or any of the capital stock or interests of its indirect Foreign Subsidiaries (if, in the good faith judgment of the Borrower, adverse tax consequences would result to the Borrower), (x) no portion of the Carve-Out may be utilized to fund prosecution or assertion of any claims against the Administrative Agent, the Lenders or the Issuing Lenders, (y) following the Termination Date, amounts in the Letter of Credit Account shall not be subject to the Carve-Out and (z) except as otherwise provided in the Orders, no portion of the Carve-Out shall be utilized for the payment of professional fees and disbursements incurred in connection with any challenge to the amount, extent, priority, validity, perfection or enforcement of the indebtedness of the Borrower and the Guarantors owing to the Existing Lenders or to the collateral securing such indebtedness. The Lenders agree that so long as no Event of Default shall have occurred and be continuing, the Borrower and the Guarantors shall be permitted to pay compensation and reimbursement of expenses allowed and payable under Sections 330 and 331 of title 11 of the United States Code, as the same may be due and payable, and the same shall not reduce the Carve-Out.
(b) Subject to the priorities set forth in subsection (a) above and to the Carve-Out, a valid perfected second priority lien on (A) as to all real property the Receivables Equity and (B) any collateral subject title to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved which is held by the Bankruptcy Court, a valid perfected first priority lien on any property Borrower or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of titleGuarantors, or the possession or control of which is held by any Agent the Borrower or any Secured Party ofof the Guarantors pursuant to leasehold interests and which secures the Existing Indebtedness, or overthe Borrower and each Guarantor hereby assigns and conveys as security, grants a security interest in, hypothecates, mortgages, pledges and sets over unto the Administrative Agent on behalf of the Lenders all of the right, title and interest of the Borrower and such Guarantor in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of the Borrower and such Guarantor in and to all buildings, improvements, and fixtures related thereto, any Collaterallease or sublease thereof, as set forth all general intangibles relating thereto and all proceeds thereof. The Borrower and each Guarantor acknowledges that, pursuant to the Orders, the Liens in favor of the Interim DIP OrderAdministrative Agent on behalf of the Lenders in all of such real property and leasehold instruments shall be perfected without the recordation of any instruments of mortgage or assignment. The Borrower and each Guarantor further agrees that, upon the request of the Administrative Agent following the occurrence of an Event of Default (regardless of whether such Event of Default is continuing), the Borrower and such Guarantor shall enter into separate fee or leasehold mortgages in recordable form with respect to such properties on terms reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Guaranty Agreement (Delphi Corp)
Priority and Liens. Each of the Borrowers hereby covenants and agrees that upon the entry of an Interim DIP Order (and when applicable, the Final DIP Order), and at all times thereafter:
(a) Pursuant The Borrower hereby covenants, represents and warrants that, upon entry of the Interim Order and the Final Order (when entered), the Obligations of the Borrower hereunder and under the other Loan Documents: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against in the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, Case having priority over all administrative expenses of the kinds kind specified in Sections 503(b) or ordered pursuant to 507(b) of the Bankruptcy Code and any and all expenses and claims of the Borrower, whether heretofore or hereafter incurred, including but not limited to the kind specified in Sections 105, 326, 328, 330, 331, 364, 503(a503(b), 503(b506(c), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) 1112 or 1114 of the Bankruptcy Code; and (bii) which shall at all times be senior pursuant to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) of the Bankruptcy Code, be subject and subordinate to the Carve-Out and shall be considered an administrative expense allowed under Section 503(b364(c)(2) of the Bankruptcy Code, shall at all times be against each Borrower secured by a perfected first priority Lien on a joint and several basis, and shall be payable from and have recourse to all unencumbered property of the Debtors’ estates Borrower (including, without limitation, all claims excluding the Borrower’s rights in respect of avoidance actions and causes of action arising under chapter 5 of the Bankruptcy Code and any the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(i) pursuant to Section 364(d)(1) of thereof under the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, ) and on all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, without limitation, all Borrower’s cash and cash equivalents, all surface land, accounts receivable and other receivables ; (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(iiiii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a perfected Lien upon all property of the Borrower that is subject to valid and perfected Liens in existence on the Petition Date or to valid Liens in existence on the Petition Date that are perfected subsequent to the Petition Date as permitted by Section 546(b) of the Bankruptcy Code or to Permitted Liens, junior to such valid and perfected Liens; and (iv) without limiting the scope of the Liens described in clauses (ii) and (iii) above, pursuant to Section 364(d)(1) of the Bankruptcy Code, the obligations of the Borrower to repay the Obligations shall be secured by a perfected Lien, pursuant to Section 364(d)(1) of the Bankruptcy Code, upon all property of the Borrower that secures (x) the Montana Collateral and (y) the South Dakota Collateral, which Lien shall have the same priority vis a vis each other Lien on the same collateral as the Lien which secured the Montana Bonds and the South Dakota Bonds, respectively, immediately prior to the repayment in full of the CSFB Loans on the Term Loan Commitment Effective Date and to any Liens granted after the Petition Date to provide adequate protection in respect thereof; provided that (i) the proceeds of the Montana Collateral shall only be available to the Secured Parties in respect of Obligations not to exceed the Montana Maximum Amount and (ii) the proceeds of the South Dakota Collateral shall only be available to the Secured Parties in respect of Obligations not to exceed the South Dakota Maximum Amount (the limitation contained in the foregoing proviso will only apply to the proceeds of the collateral secured by the Liens described in this clause(iv) and not to any other Liens in favor of the Secured Parties), subject in each of clauses (i), (ii), (iii) and (iv) only to the Carve-Out. Notwithstanding anything in any Loan Document, no portion of the Carve-Out shall be utilized for the payment of professional fees and disbursements incurred in connection with any challenge to the amount, extent, priority, validity, perfection or enforcement of the indebtedness of the Loan Parties owing to the Agent, the LC Issuer or the Lenders or to the Collateral. The Agent, the LC Issuer and the Lenders agree that (a) so long as no Default or Unmatured Default shall have occurred, the Borrower shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. § 330 and 11 U.S.C. § 331, as the same may be due and payable, and the same shall not reduce the Carve-Out and (b) the amount of any retainers received by any professionals retained in the Case shall not reduce the Carve-Out. In addition, each Loan Party acknowledges and agrees that each Guarantor is granting Liens to the Agent for the benefit of the Secured Parties pursuant to the Security Agreement and the Mortgages (if any) to which such Guarantor is or may become a party.
(b) Subject to the priorities set forth in Section 2.25(a) and to the Carve-Out, a valid perfected second priority lien on (A) as to all real property the Receivables Equity and (B) any collateral subject title to a Prior Permitted Lien (other than which is held by the A/R Securitization Facility Collateral); and
(iii) Borrower, or the possession of which is held by the Borrower pursuant to Section 364(c)(2) leasehold interest, the Borrower hereby assigns and conveys as security, grants a security interest in, hypothecates, mortgages, pledges and sets over unto the Agent on behalf of the Bankruptcy CodeSecured Parties all of the right, subject title and interest of the Borrower in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of the Borrower in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. The Borrower acknowledges that, pursuant to the Carve-OutInterim Order and the Final Order (when entered), upon entry the Liens in favor of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) Parties in all of such real property and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) leasehold instruments shall be valid and enforceable against perfected without the recordation of any trustee instruments of mortgage or any other estate representative appointed or elected in the Casesassignment. The Borrower further agrees that, upon the conversion of any request of the Cases Agent, the Borrower shall enter into separate fee and leasehold mortgages in recordable form with respect to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted such properties on terms reasonably satisfactory to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP OrderAgent.
Appears in 1 contract
Priority and Liens. Each (a) The Borrowers hereby covenant, represent and warrant that the Obligations of the Borrowers hereby covenants hereunder and agrees that upon under the entry Loan Documents and in respect of an Interim DIP Order Indebtedness permitted by Section 6.3(v): (and when applicable, the Final DIP Order), and at all times thereafter:
(ai) Pursuant pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim in the Cases: Claim; (aii) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, administrative expenses of the kinds specified in or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; and (b) which shall at all times be senior to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) of the Bankruptcy Code, be subject and subordinate to the Carve-Out and shall be considered an administrative expense allowed under Section 503(b364(c)(2) of the Bankruptcy Code, shall at all times be against each Borrower secured by a perfected first priority Lien on a joint and several basis, and shall be payable from and have recourse to all unencumbered property of the Debtors’ estates (including, without limitation, Borrowers and on all claims cash maintained in the Letter of Credit Account and causes of action arising under chapter 5 any direct investments of the Bankruptcy Code and any funds contained therein, provided that amounts in the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim Letter of Credit Account shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(i) pursuant to Section 364(d)(1) of the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall not be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
Carve-Out; (iiiii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a perfected Lien upon all property of the Borrowers that is subject to valid and perfected Liens in existence on the Filing Date (including the perfected liens on the stock of certain Subsidiaries of the Parent (“Stock Liens”) in favor of (x) the trustee for the holders of Indebtedness of the Parent under the Indentures, and (y) the holders of obligations under the Prepetition Credit Agreement and the Surety Bonds) or that is subject to valid Liens in existence on the Filing Date that are perfected subsequent to the Filing Date as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations under the Prepetition Agreements, which liens shall be primed by the liens to be granted to the Administrative Agent described in the following clause (iv); and in addition, (iv) pursuant to Section 364(d)(l) of the Bankruptcy Code, be secured by a perfected first priority, senior priming Lien on all of the property of the Borrowers (including, without limitation, inventory, receivables, rights under license agreements, property, plant and equipment and interests in leaseholds) that is subject to the existing liens (the “Primed Liens”, it being understood that the Stock Liens shall not be primed or constitute part of the Primed Liens) which secure (x) on a pari passu basis, the obligations of the Borrowers to the lenders party to the Prepetition Credit Agreement and the obligations of the Borrowers in connection with the Surety Bonds, and (y) other obligations or Indebtedness of the Borrowers pursuant to the other Prepetition Agreements, all of which Primed Liens shall be primed by and made subject and subordinate to the perfected first priority senior Liens to be granted to the Administrative Agent, which senior priming Liens in favor of the Administrative Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens but shall not prime Liens, if any, to the extent such Liens secure obligations (other than obligations under the Prepetition Agreements) in an aggregate amount less than or equal to $20,000,000, subject in each case only to (x) in the event of the occurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both, the payment of allowed and unpaid professional fees and disbursements incurred by the Borrowers and any statutory committees appointed in the Cases in an aggregate amount not in excess of $5,000,000 and (y) the payment of fees pursuant to 28 U.S.C. § 1930 and to the Clerk of the Bankruptcy Court (collectively, the “Carve-Out”), provided that no portion of the Carve-Out shall be utilized for the payment of professional fees and disbursements incurred in connection with any challenge to the amount, extent, priority, validity, perfection or enforcement of the Indebtedness of the Borrowers owed with respect to the parties primed by the priming Liens or to the collateral securing such Indebtedness or any other action against such parties. Amounts in the Letter of Credit Account shall not be subject to the Carve-Out. By execution hereof, a valid perfected second priority lien on the Borrowers hereby consent to the priming Liens referenced in clause (Aiv) above. Amounts in the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) Letter of the Bankruptcy Code, Credit Account shall not be subject to the Carve-Out. Notwithstanding the foregoing, upon entry so long as no Event of Default or event which with the Final DIP Order giving of notice or lapse of time or both would constitute an Event of Default shall have occurred and be continuing, the Borrowers shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. § 330 and 11 U.S.C. § 331, as the same may be due and payable, and any compensation and expenses previously paid, or accrued but unpaid, prior to the occurrence of such Event of Default shall not reduce the Carve-Out.
(b) To the extent approved by the Bankruptcy Court, a valid perfected first priority prepetition creditor has a lien on any property or proceeds recovered from prepetition intercompany unsecured claims between and among the Borrowers and no liens on any Avoidance Actions; other assets of the Borrowers other than the stock of Restricted Subsidiaries (as defined in the Indentures), such liens shall not be primed, provided, however, that no payments may be made on account of such prepetition claims and the liens of the prepetition creditors shall not extend to the collateral securing the Indebtedness created by this Agreement.
(c) As to all real property the title to which is held by a Borrower or the possession of which is held by a Borrower pursuant to leasehold interest, the Borrowers hereby assign and convey as security, grant a security interest in, hypothecate, mortgage, pledge and set over unto the Administrative Agent on behalf of the Lenders all of the right, title and interest of the Borrowers in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of the Borrowers in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. The Borrowers acknowledge that, there pursuant to the Final Order (as amended by the Amendment Order), the Liens in favor of the Administrative Agent on behalf of the Lenders in all of such real property and leasehold instruments of the Borrowers shall be no Lien perfected without the recordation of any instruments of mortgage or assignment. The Borrowers further agree that, upon the request of the Administrative Agent, in the exercise of its business judgment, the Borrowers shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on amounts held in trust by a Specified Borrower for terms satisfactory to the A/R Securitization Seller or the secured parties under the A/R Securitization FacilityAdministrative Agent.
(d) The Liens granted To the extent any Borrower makes aggregate payments to the Collateral Agent (for the benefit Lenders in excess of the Secured Partiesaggregate amount of all Loans received by such Borrower from the Lenders after the commencement of the Cases, then such Borrower, after the payment in full of all obligations of the Borrowers in respect of the Commitment and the termination of the Commitment, shall be entitled to a claim under Section 364(c)(1) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of against each other Borrower, in such amount as may be determined by the Bankruptcy CodeCourt taking into account the relative benefits received by each such person, (i) and such claims shall not be deemed to be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted and junior in any of all respects to the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or superpriority claims of the Debtors, Lenders and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been superpriority claims granted as adequate protection to the Collateral Agent (for the benefit of the Secured Primed Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP Order.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Guaranty Agreement (Federal Mogul Corp)
Priority and Liens. Each of the Borrowers Borrower and each Guarantor hereby covenants covenants, represents and agrees that warrants that, upon the entry of an the Interim DIP Order (and when applicableOrder, the Final DIP Order), Obligations of the Borrower and at all times thereafter:
such Guarantor hereunder and under the Loan Documents: (ai) Pursuant pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim Claim; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a perfected first priority Lien on all unencumbered real, personal and mixed property of the Borrower and such Guarantor and on all cash maintained in the Cases: (a) except as set forth in the Interim DIP Order (L/C Cash Collateral Account and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any investments of the Cases funds contained therein (excluding any avoidance actions under the Bankruptcy Code (but including the proceeds therefrom)); and (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a perfected Lien upon all real, personal and mixed property of the Borrower and such Guarantor that is subject to valid and perfected liens in existence on the Petition Date, junior to such valid and perfected Liens, subject and subordinated in each case with respect to clauses (i) through (iii) above, only to the Carve-Out. Except for the Carve-Out having priority over the Obligations, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, administrative expenses of the kinds specified in or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; and (b) which Claims shall at all times be senior to the rights of the Borrowers and their estatesBorrower, and each Guarantor, any successor chapter 11 trustee or other estate representative and, subject to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) section 726 of the Bankruptcy Code, be subject and subordinate to the Carve-Out and shall be considered an administrative expense allowed under Section 503(b) of the Bankruptcy Codeany chapter 7 trustee, shall be against each Borrower on a joint and several basis, and shall be payable from and have recourse to all property of the Debtors’ estates or any other creditor (including, without limitation, all claims post-petition counterparties and causes of action arising other post-petition creditors) in the Cases or any subsequent proceedings under chapter 5 of the Bankruptcy Code and any the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(i) pursuant to Section 364(d)(1) of the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(ii) pursuant to Section 364(c)(3) of the Bankruptcy Code, subject to the Carve-Out, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP Order.any
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (Worldcom Inc)
Priority and Liens. Each (1) The Borrower hereby covenants, represents and warrants that, upon entry of the Borrowers hereby covenants and agrees that upon the entry of an Interim DIP Order (and when the Final Order, as applicable), the Final DIP Order)obligations of the Borrower hereunder and under the other Credit Documents, and at all times thereafter:
(ai) Pursuant pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall shall, to the maximum extent permitted by law, at all times constitute an allowed Superpriority Claim in the Cases: Super-priority Claims, (aii) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, administrative expenses of the kinds specified in or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1364(c)(2) of the Bankruptcy Code; and (b) which shall at all times be senior to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) of the Bankruptcy Code, be subject and subordinate to the Carve-Out and shall be considered an administrative expense allowed under Section 503(b3) of the Bankruptcy Code, shall at all times be against each Borrower on secured by a joint and several basisperfected lien on, and security interest in, all present and after acquired property of the Borrower (excluding however, capital stock of any Foreign Subsidiary, which Foreign Subsidiary constitutes a "Controlled Foreign Corporation" within the meaning of Section 951 of the Internal Revenue Code, constituting 35% of the combined voting power of all classes of capital stock of such Foreign Subsidiary entitled to vote), which perfected lien shall be payable from and have recourse a first priority lien with respect to all property of the Debtors’ estates (including, without limitation, all claims and causes of action arising under chapter 5 of the Bankruptcy Code and Borrower that is not subject to any the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable valid and perfected liens on all Collateral, as of the Filing Date and shall constitutebe junior in priority to valid and perfected liens, subject to if any, as of the Filing Date (other than those described in clause (diii) below:
); and (iiii) pursuant to ------------ Section 364(d)(1) of the Bankruptcy Code, shall at all times be secured by a valid perfected first priority priority, senior priming lien on, other than the Receivables Equity, on all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the BorrowersBorrower that secures the Prepetition Revolving Credit Obligations and the Prepetition Note Purchase Obligations, including, without limitation, all cash subject and cash equivalents, all surface land, accounts receivable and other receivables (other than, subordinate in each casecase with respect to subclauses (i) through (iii) above, only to (x) following the -------------- ----- occurrence and during the continuance of a Default or an Event of Default, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles payment (as the same may be due and membership interests, capital stock payable) of professional fees and Equity Interests owned disbursements allowed by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(ii) pursuant to Section 364(c)(3) order of the Bankruptcy CodeCourt and incurred by the Borrower and not to exceed $1,000,000 (plus any unpaid professional fees and disbursements previously incurred, subject accrued or invoiced prior to the Carve-Outsuch Default or Event of Default, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equitysubsequently awarded), (y) the payment of unpaid fees pursuant to 28 U.S.C. Section 1930 and any lien that is avoided and preserved for fees payable to the benefit Clerk of the Borrowers Bankruptcy Court, and their estates (z) up to $650,000 for payment of trust fund taxes (collectively, the "Carve-Out"); provided that --------- -------- the Borrower makes no representation as to the perfection of any Lien on any Proprietary Rights Collateral to the extent such Proprietary Rights Collateral is registered, or for which registration has been applied, in a jurisdiction outside of the United States and such jurisdiction requires a filing or similar process to perfect such security interest. The Lenders agree that so long as no Default or Event of Default shall have occurred and be continuing, the Borrower shall be permitted to pay compensation and reimbursement of expenses allowed and payable under Section 551 Sections 330 and 331 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 orders of the Bankruptcy Code or in any other proceedings related to any of Court, as the foregoingsame may be payable, and/or upon and the dismissal of any of amounts so paid shall not reduce the CasesCarve-Out.
(e2) All of As to all Collateral, including without limitation, all real property the Liens described in this Section 2.19 that have been granted title to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings which is held by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of titleBorrower, or the possession or control of which is held by any the Borrower pursuant to leasehold interest, the Borrower hereby assigns and conveys as security, grants a security interest in, hypothecates, mortgages, pledges and sets over unto the Agent or any Secured Party ofall of the right, or overtitle and interest of the Borrower in all of such Collateral, including without limitation, all owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of the Borrower in and to all buildings, improvements and fixtures related thereto, any Collaterallease or sublease thereof, as all general intangibles relating thereto and all proceeds thereof. The Borrower acknowledges that, pursuant to the Orders, the Liens granted in favor of the Agent (on behalf of the Lenders) in all of the Collateral shall be perfected without the recordation of any Code financing statements, notices of Liens or other instruments of mortgage or assignment. The Borrower further agrees that (i) the Agent shall have the rights and remedies set forth in Articles IX and X in respect of the Interim DIP OrderCollateral and (ii) if ----------- - requested by the Agent, the Borrower shall enter into separate security agreements, pledge agreements and fee mortgages with respect to such Collateral on terms reasonably satisfactory to the Agent.
Appears in 1 contract
Priority and Liens. (a) The Obligations shall be secured by Liens under Sections 364(c)(2) and (d)(1) of the Bankruptcy Code, senior to all other Liens (subject to subsection 2.5(d)), regardless of when the Liens were obtained and regardless of their previous priority, in all of the Collateral. The Obligations shall be senior to the DIP Obligations to the Lenders (as defined in the Interim Order) in connection with the Deemed DIP Loans.
(b) As to all Collateral, each of the Borrowers, subject to the Carve-Out, hereby assigns and conveys as security, grants a security interest in, hypothecates, mortgages, pledges and sets over unto the Agent, for the benefit of the Agent and the Lenders, all of the right, title and interest of such Borrower in all of such Collateral. Each of the Borrowers hereby covenants acknowledges that, pursuant to the Orders, the Liens granted in favor of the Agent, for the benefit of the Agent and the Lenders, in all of the Collateral shall be perfected without the recordation of any Uniform Commercial Code financing statements, notices of Lien, Mortgages, or other instruments of mortgage or assignment. Each Borrower further agrees that upon if requested by the entry of an Interim DIP Order (and when applicableAgent, or required by the Loan Documents, the Final DIP Order)Borrowers shall enter into separate security agreements, pledge agreements and at all times thereafter:fee and leasehold mortgages with respect to such Collateral on terms satisfactory to the Agent.
(ac) Pursuant to The Obligations shall have the status in the Bankruptcy Cases of superpriority administrative expenses under Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only . Subject to the Carve-Out, such administrative claims shall have priority over all other claims, costs and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, administrative expenses of the kinds specified in in, or ordered pursuant to Bankruptcy Code to, Sections 105, 326, 328, 330, 331, 364, 503(a503(b), 503(b506(c), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and 726 or 1112 or any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; Code and (b) which shall at all times be senior to the rights of the Borrowers and their estatesany Borrower, any Borrower's estate, and any successor trustee or other estate representative to in the extent permitted by lawBankruptcy Cases or any subsequent proceeding or case under the Bankruptcy Code.
(bd) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(AThe Liens on the Collateral under Sections 364(c)(2) and (d)(1) of the Bankruptcy Code, for the benefit of Agent and Lenders, and the superpriority administrative claim under Section 364(c)(1) of the Bankruptcy Code afforded the Obligations, shall be subject to the following: (i)
(A) the unpaid fees due and subordinate payable to the Clerk of the Court and the U.S. Trustee pursuant to 28 X.X.X.xx. 1930, and (B) allowed, unpaid claims for fees and expenses incurred by professionals retained pursuant to an order of the Bankruptcy Court prior to the occurrence of an Event of Default (as defined in the Commitment Letter) not to exceed $1,000,000 in the aggregate (the "Carve-Out"), other than fees and expenses incurred, directly or indirectly, in respect of, relating to or arising from the investigation, initiation or prosecution of any action for preferences, fraudulent conveyances, subordination or claims or causes of action against the Agent (as defined in the Interim Order) or Lenders (as defined in the Interim Order) with respect to the Prepetition Indebtedness or the DIP Obligations, and (ii) existing validly perfected liens that were Permitted Liens (as defined in the Existing Credit Agreement but not including Permitted Liens under subsection 9.3(h) thereof) under the Existing Credit Agreement; provided, that any payments actually made to such professionals under Sections 330, 331 and 503 of the Bankruptcy Code in respect of fees and expenses incurred or accrued (x) prior to the occurrence of an Event of Default, shall not reduce the Carve-Out and (y) from and after the occurrence of an Event of Default, shall reduce Dollar-for-Dollar the Carve-Out; provided, further, that in no event shall any of the Carve-Out (A) be utilized to prosecute or cause to be prosecuted any such claims, causes of action, actions or proceedings against any Agent or Lender, (B) be paid from amounts on deposit in the Collateral Account or (C) include any fees or expenses arising after the conversion of a Bankruptcy Case under Chapter 11 of the Bankruptcy Code to a case under Chapter 7 of the Bankruptcy Code.
(e) Notwithstanding the foregoing, the Borrowers shall be considered an permitted to pay, as the same may become due and payable (i) administrative expense allowed under expenses of the kind specified in Section 503(b) of the Bankruptcy CodeCode incurred in the ordinary course of their businesses, shall be against each Borrower on a joint and several basis(ii) subject to the provisions of the Interim Order, the Final Order, and shall be payable from this subsection 2.5 and have recourse provided that no Event of Default has occurred and is continuing, compensation and reimbursement of expenses to all property of the Debtors’ estates (including, without limitation, all claims and causes of action arising under chapter 5 of professionals allowed by the Bankruptcy Code Court and any the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable payable under Sections 330 and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(i) pursuant to Section 364(d)(1) 331 of the Bankruptcy Code, a valid perfected first priority priming lien on, and (iii) any other than the Receivables Equity, all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property Prepetition or Postpetition expenses of the Borrowers, includingincluding adequate protection payments, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(ii) pursuant to Section 364(c)(3) of the Bankruptcy Code, subject to the Carve-Out, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust Court and not otherwise prohibited by a Specified Borrower for the A/R Securitization Seller terms of this Agreement or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (other Loan Documents. Except for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) , no costs or expenses of administration shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code imposed against Agent and Lenders or the “equities of the case” exception of Section Collateral under Sections 105, 506(c) or 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Casesotherwise.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP Order.
Appears in 1 contract
Samples: Postpetition Credit Agreement (Special Metals Corp)
Priority and Liens. Each (a) Subject to the Orders and the Security and Pledge Agreement, the Borrower and each of the Borrowers Guarantors hereby covenants covenants, represents and agrees that warrants that, upon the entry of an the Interim DIP Order (and when the Final Order, as applicable), the Final DIP Order)Obligations of the Borrower and the Guarantors hereunder and under the Loan Documents and in respect of Indebtedness owing to JPMorgan Chase Bank, N.A., any Lender and at all times thereafter:
any of their banking Affiliates permitted by Section 6.03(vi): (ai) Pursuant pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim administrative expense claims in the Cases having priority over all administrative expenses of the kind specified in Sections 503(b) or 507(b) of the Bankruptcy Code; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a perfected first priority Lien on all unencumbered property of the Borrower's and the Guarantors' respective estates in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, administrative expenses all present and future accounts receivable (other than, prior to any repurchase thereof by any of the kinds specified in or ordered Debtors, such accounts receivable sold to the Receivables Subsidiary prior to the Filing Date pursuant to the Permitted Receivable Purchase Facility), inventory, general intangibles, chattel paper, real property, leaseholds, fixtures, machinery and equipment, deposit accounts, patents, copyrights, trademarks, tradenames, rights under license agreements and other intellectual property, capital stock of any Subsidiaries of the Borrower and Guarantors (excluding (x) the Borrower's and the Guarantors' rights in respect of avoidance actions under the Bankruptcy Code Sections 105(it being understood that, 326notwithstanding such exclusion of avoidance actions, 328the proceeds of such actions (including, 330without limitation, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, assets as provided to which liens are avoided) shall be subject to such liens under Section 364(c)(1364(c)(2) of the Bankruptcy Code; Code and available to repay the Obligations) and (by) Joint Venture Interests and Specified LLC Interests and related assets as to which shall at all times (I) Liens thereon are not permitted to be senior to the rights granted or (II) as a result of the Borrowers granting of such Lien, the value of such interests and their estatesrelated assets would be materially adversely compromised (it being understood that, notwithstanding such exclusion of such interests and any successor trustee or other estate representative assets, the proceeds of such interests and assets shall be subject to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of such liens under Section 1129(a)(9)(A364(c)(2) of the Bankruptcy Code, be subject Code and subordinate available to repay the Carve-Out Obligations) and shall be considered an administrative expense allowed under on all cash maintained in the Letter of Credit Account and any direct investments of the funds contained therein; (iii) pursuant to Section 503(b364(c)(3) of the Bankruptcy Code, shall be against each Borrower on secured by a joint and several basis, and shall be payable from and have recourse to perfected Lien upon all property of the Debtors’ estates Borrower and the Guarantors (includingother than the property that is subject to existing Liens that presently secure the obligations of the Borrower and the Guarantors under the Existing Agreement and Liens that are junior to such existing Liens, without limitationas to which the Lien in favor of the Agent and the Lenders will be as described in clause (iv) of this sentence) that is subject to valid, all claims perfected and causes of action arising under chapter 5 non-avoidable Liens in existence on the Filing Date or to valid Liens in existence on the Filing Date that are perfected subsequent to the Filing Date as permitted by Section 546(b) of the Bankruptcy Code and any the proceeds thereof). Notwithstanding anything or to the contraryPermitted Liens, junior to such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, perfected and non-avoidable Liens; and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(iiv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid perfected first priority priority, senior priming lien on, other than the Receivables Equity, Lien on all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, Borrower and the Guarantors (including without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit property of the Borrowers’ utility providers during Borrower and the pendency of the Cases;
Guarantors listed in clause (ii) pursuant of this sentence and the proceeds thereof) that is subject to existing Liens that presently secure the Borrower's and the Guarantors' pre-petition Indebtedness under the Existing Agreement (including without limitation, the Liens in favor of the Existing First Lien Lenders until such time as the conditions set forth in Section 364(c)(34.02(e) shall have been satisfied, and the Tranche B Lenders shall have advanced the Tranche B Loan) and Liens that are junior to such existing Liens (but subject to any Liens in existence on the Filing Date to which the Liens being primed hereby are subject or become subject subsequent to the Filing Date as permitted by Section 546(b) of the Bankruptcy Code) and any Liens granted after the Filing Date to provide adequate protection in respect of the Existing Agreement, senior to all of such Liens; provided, however, the Borrower and the Guarantors shall not be required to pledge to the Agent in excess of 65% of the capital stock of its direct Foreign Subsidiaries or any of the capital stock or interests of its indirect Foreign Subsidiaries (if adverse tax consequences would result to the Borrower) or Joint Venture Interests and Specified LLC Interests (if such pledge would result in the value of such Joint Venture Interests and Specified LLC Interests being materially adversely compromised); subject only to (x) in the event of the occurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both, the payment of allowed and unpaid professional fees and disbursements incurred by the Borrower, the Guarantors and any statutory committees appointed in the Cases in an aggregate amount not in excess of $7,000,000 (plus all unpaid professional fees and disbursements incurred prior to the occurrence of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both to the extent allowed by the Bankruptcy Court at any time) and (y) the payment of unpaid fees pursuant to 28 U.S.C. ss. 1930 and to the Clerk of the Bankruptcy Court ((x) and (y), collectively, the "Carve-Out"), provided that no portion of the Carve-Out may be utilized to fund prosecution or assertion of any claims against the Agent, the Lenders or the Issuing Lenders (it being understood that, in the event of the liquidation of the Borrower's and the Guarantors' estates, the amount of the Carve-Out shall be funded into a segregated account prior to the making of distributions).
(b) The Lenders agree that so long as no Event of Default or event which with the giving of notice or lapse of time or both would constitute an Event of Default shall have occurred, the Borrower and the Guarantors shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. xx.xx. 328, 330 and 331, as the same may be due and payable, and the same shall not reduce the Carve-Out.
(c) Subject to the priorities set forth in subsection (a) above and to the Carve-Out, a valid perfected second priority lien on (A) as to all real property the Receivables Equity and (B) any collateral subject title to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved which is held by the Bankruptcy Court, a valid perfected first priority lien on any property Borrower or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of titleGuarantors, or the possession or control of which is held by any Agent the Borrower or any Secured Party ofof the Guarantors pursuant to leasehold interests and which secures the obligations under the Existing Agreement, or overthe Borrower and each Guarantor hereby assigns and conveys as security, grants a security interest in, hypothecates, mortgages, pledges and sets over unto the Agent on behalf of the Lenders all of the right, title and interest of the Borrower and such Guarantor in all of such owned real property and in all such leasehold interests, together in each case with all of the right, title and interest of the Borrower and such Guarantor in and to all buildings, improvements, and fixtures related thereto, any Collaterallease or sublease thereof, as set forth all general intangibles relating thereto and all proceeds thereof. The Borrower and each Guarantor acknowledges that, pursuant to the Orders, the Liens in favor of the Interim DIP OrderAgent on behalf of the Lenders in all of such real property and leasehold instruments shall be perfected without the recordation of any instruments of mortgage or assignment. The Borrower and each Guarantor further agree that, upon the request of the Agent, the Borrower and such Guarantor shall enter into separate fee and leasehold mortgages in recordable form with respect to such properties on terms reasonably satisfactory to the Agent.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Guaranty Agreement (Tower Automotive Inc)
Priority and Liens. (a) Each of the Borrowers Loan Parties hereby covenants and agrees that upon the entry of an of, and subject to, the Interim DIP Order (and and, when applicableentered, the Final DIP Order)) and subject to the Carve Out in all respects, and at all times thereafterthe Obligations:
(ai) Pursuant pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim super-priority administrative expense claim in the Cases: Cases (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order“Superpriority Claim”), with subject only to the Carve Out and having priority over any and all other administrative expense expenses, diminution claims and unsecured all other priority claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-OutDebtors, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time now existing or hereafter arising, of any kind or nature whatsoever, including, without limitation, all other administrative expenses of the kinds kind specified in sections 503(b) and 507(b) of the Bankruptcy Code, and over any and all other administrative expenses or ordered pursuant to Bankruptcy Code Sections other claims arising under sections 105, 326, 327, 328, 330, 331, 364365, 503(a503(b), 503(b506(c), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision or 1114 of the Bankruptcy Code, as provided under Section 364(c)(1) which super-priority claims in respect of the Bankruptcy Code; and (b) which Facilities shall at all times be senior to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.rank pari passu with each other;
(bii) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) of the Bankruptcy Code, be subject and subordinate pursuant to the Carve-Out and shall be considered an administrative expense allowed under Section 503(bsection 364(c)(2) of the Bankruptcy Code, shall be against each Borrower secured by a valid, binding, continuing, enforceable, fully perfected first priority Lien on a joint all Collateral that is not subject to valid, perfected and several basis, and unavoidable Liens; it being agreed that such Collateral shall be payable from and have recourse to all property of the Debtors’ estates (including, without limitation, all exclude claims and causes of action arising under chapter 5 sections 502(d), 544, 545, 547, 548, 550 and 553 of the Bankruptcy Code and any (collectively “Avoidance Actions”) but include, subject to the entry of the Final DIP Order by the Bankruptcy Court, the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.and
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(iiii) pursuant to Section 364(d)(1364(d)(l) of the Bankruptcy Code, shall be secured by a valid valid, binding, continuing, enforceable, fully perfected first priority senior priming lien onLien on all Collateral, other than which Liens shall be senior to the Receivables EquityLiens (the “Primed Liens”) securing the Prepetition Credit Facilities and any Liens to which the Primed Liens are senior or rank pari passu, all and which shall also prime any Liens granted after the commencement of the existing and after-acquired personal and real property, leasehold interests Cases to provide Adequate Protection Liens to the extent of any diminution in real property, and tangible and intangible personal property the value of the Borrowerscollateral of the Primed Liens as provided in the DIP Orders in respect of any of the Primed Liens, including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, subject in each casecase only to (1) Non-Primed Excepted Liens, (2) the A/R Securitization Facility CollateralCarve Out and (3) and as otherwise set forth in the DIP Orders (the “Priming Liens”), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;and
(iiiv) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable fully perfected Lien on all Collateral that is subject to the Carve-Out, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Customary Permitted Lien (other than the A/R Securitization Facility Collateral); andLiens;
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(db) The Priming Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject and junior to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy CodeCarve Out in all respects, (iii) shall not be subordinate to, or pari passu with, junior to Liens that are senior to the Primed Liens (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equityunless such Liens are themselves Primed Liens), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against senior to any trustee Liens to which the Primed Liens are senior or any rank pari passu, (iv) shall be senior in all respects to the interests in such property of the holders of the obligations in respect of the Primed Liens (other estate representative appointed or elected than the Prepetition Cash Collateralized LC Liens, as defined in the CasesInterim DIP Order), upon and (v) shall also be senior to any Liens granted after the conversion of any Petition Date to provide adequate protection in respect of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the CasesPrimed Liens.
(ec) All The relative priorities of the Liens described in this Section 2.19 that have been granted 2.24 with respect to the Collateral Agent (for shall be as set forth in the benefit DIP Orders and the Collateral Documents. In accordance with the DIP Orders, all of the Secured Parties) Liens described in this Section 2.24 shall be effective and perfected upon entry of the Interim DIP OrderOrders, without the necessity of the execution, recordation of or filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any the Collateral Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP OrderOrders.
Appears in 1 contract
Samples: Superpriority Senior Secured Debtor in Possession Credit Agreement (McDermott International Inc)
Priority and Liens. (a) Each of the Borrowers Credit Parties hereby covenants covenants, represents and agrees that warrants that, upon the entry of an Interim the Supplemental DIP Financing Order (and when applicable, the Final DIP Order), and at all times thereafter:
(ai) Pursuant pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its the Revolving Obligations shall at all times constitute an allowed Superpriority Claim administrative expense claims in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), Bankruptcy Cases with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-OutCredit Parties, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time now existing or hereafter arising, of any kind or nature whatsoever, including, without limitation, administrative expenses of the kinds specified in or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 506(c), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision 1114 of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; Code and (bii) which shall at all times be senior pursuant to the rights of the Borrowers Sections 364(c)(2) and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A364(d) of the Bankruptcy Code, the Revolving Obligations shall at all times be secured by a perfected first priority Lien on all property and assets of each member of the TP&S Group, except for the Excluded Assets, subject in the case of both (i) and subordinate (ii) only to (A) Senior Liens and (B) the Carve Out (defined below) in an aggregate amount not in excess of $1,050,000 (the "Carve-Out"). The Carve-Out may be used only to pay the fees and expenses of professionals employed by the Credit Parties, the fees and expenses of professionals employed by any statutory committee appointed by the Bankruptcy Court under Section 1102 of the Bankruptcy Code ("Statutory Committee"), and the expenses of members of any such Statutory Committee, provided that all such fees and expenses are authorized to be paid or approved by the Bankruptcy Court to the extent required under the Bankruptcy Code; provided, however, that the Carve-Out and shall not include, apply to or be considered an administrative expense allowed under Section 503(b) available for any fees or expenses incurred by any party, including the Credit Parties or any Statutory Committee, in connection with the initiation or prosecution of the Bankruptcy Codeany claims, shall be against each Borrower on a joint and several basis, and shall be payable from and have recourse to all property of the Debtors’ estates (including, without limitation, all claims and causes of action arising under chapter 5 of action, adversary proceedings or other litigation against the Bankruptcy Code and any Agents, the proceeds thereof). Notwithstanding anything to Lenders, the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to Pre-Petition Agents or the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, nonPre-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(i) pursuant to Section 364(d)(1) of the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the BorrowersPetition Lenders, including, without limitation, all cash and cash equivalentschallenging the amount, all surface landvalidity, accounts receivable and other receivables (other thanpriority or enforceability of, in each caseor asserting any defense, claim, counterclaim or offset to, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(ii) pursuant to Section 364(c)(3) of the Bankruptcy Code, subject to the CarvePre-Out, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller Petition Credit Agreement Obligations or the secured parties under Revolving Obligations or the A/R Securitization Facility.
(d) The Liens granted to of the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on Lenders, under either the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code Pre-Petition Credit Facility or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP Order.this
Appears in 1 contract
Samples: Debtor in Possession Financing Agreement (Railworks Corp)
Priority and Liens. Each of the Borrowers hereby covenants and agrees that upon the entry of an Interim DIP Order (and when applicable, the Final DIP Order), and at all times thereafter:
(a) Pursuant The Borrower and each of the Guarantors hereby covenants, represents and warrants that, upon entry of the Interim Order, the Obligations of the Borrower and the Guarantors hereunder and under the Loan Documents and in respect of Indebtedness arising after the Filing Date owed to any Bank (or any of their respective Bank Affiliates) permitted by Section 6.03(vii): (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, having priority over all administrative expenses of the kinds kind specified in Sections 503(b) or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; and (bii) which shall at all times be senior pursuant to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) of the Bankruptcy Code, be subject and subordinate to the Carve-Out and shall be considered an administrative expense allowed under Section 503(b364(c)(2) of the Bankruptcy Code, shall at all times be against each Borrower secured by a perfected first priority Lien on a joint and several basis, and shall be payable from and have recourse to all property of the Debtors’ estates Borrower and the Guarantors (includinglimited, without limitationin the case of leasehold interests, all claims and causes of action arising under chapter 5 of the Bankruptcy Code and any to the proceeds received upon any sale, disposition or termination thereof). Notwithstanding anything ) that is not subject to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, perfected and non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(i) pursuant to Section 364(d)(1) as of the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the BorrowersFiling Date, including, without limitation, substantially all Inventory of the Borrower and the Guarantors (excluding the Borrower’s and the Guarantors’ rights in respect of avoidance actions under the Bankruptcy Code, it being understood that, notwithstanding such exclusion of avoidance actions, the proceeds of such actions shall be available to repay the Obligations), and on all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, maintained in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens Letter of Credit Account and any account holding adequate assurance deposits for the benefit direct investments of the Borrowers’ utility providers during the pendency of the Cases;
funds contained therein; (iiiii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a perfected Lien upon all property of the Borrower and the Guarantors (limited, in the case of leasehold interests, to the proceeds received upon any sale, disposition or termination thereof) that is subject to valid, perfected and non-avoidable Liens in existence on the Filing Date or to valid Liens in existence on the Filing Date that are perfected subsequent to the Filing Date as permitted by Section 546(b) of the Bankruptcy Code or to Permitted Liens, junior to such valid and perfected Liens, subject only to (x) in the event of the occurrence and during the continuance of an Event of Default, the payment of allowed and unpaid professional fees and disbursements incurred or accrued by the Borrower, the Guarantors and any statutory committees appointed in the Cases in an aggregate amount not in excess of $5,000,000 (plus all unpaid professional fees and disbursements accrued or incurred prior to the occurrence of an Event of Default to the extent allowed by the Bankruptcy Court at any time) and (y) the payment of unpaid fees pursuant to 28 U.S.C. § 1930 and to the Clerk of the Bankruptcy Court (collectively, the “Carve-Out”), provided, that, no portion of the Carve-Out shall be utilized to fund litigation against the Agent or the Banks. The Banks agree that so long as no Event of Default shall have occurred and be continuing, the Borrower and the Guarantors shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. § 330 and 11 U.S.C. § 331, as the same may be due and payable, and the same shall not reduce the Carve-Out. Notwithstanding anything to the contrary set forth herein, but subject to the “provided” clause of this sentence during the period described in such clause, the claims and Liens referred to above in favor of the Banks (or their respective Bank Affiliates) in respect of the obligations of the Borrower permitted by Section 6.03(vii) arising after the Filing Date shall be (A) pari passu with the Superpriority Claims and Liens in respect of the other Obligations hereunder and under the other Loan Documents to the extent of $200,000,000 and (B) junior to the Superpriority Claims and Liens in respect of the other Obligations hereunder and under the other Loan Documents to the extent the obligations of the Borrower owed to Banks (or their respective Bank Affiliates) that are permitted by Section 6.03(vii) arising after the Filing Date exceed $200,000,000, provided that during the period ending upon the entry of the Final Order, Bank One and its banking Affiliates (or another cash management institution satisfactory to the Borrower and the BanksCo-Collateral Monitors) shall be entitled to the benefit of the pari passu claims and Liens to the extent of $190,000,000 and Banks (and their respective Bank Affiliates) shall be entitled to the benefit of the pari passu claims and Liens to the extent of $10,000,000, in each case as referred to in clause (A) of this sentence in respect of overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing house transfers of funds permitted by Section 6.03(vii), in each case to the extent arising after the Filing Date.
(b) Subject to the priorities set forth in subsection (a) above and to the Carve-Out, a valid perfected second priority lien on (A) as to all real property the Receivables Equity and (B) any collateral subject title to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved which is held by the Bankruptcy Court, a valid perfected first priority lien on any property Borrower or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of titleGuarantors, or the possession or control of which is held by any Agent the Borrower or any Secured Party ofof the Guarantors pursuant to leasehold interest, the Borrower and each Guarantor hereby assigns and conveys as security, grants a security interest in, hypothecates, mortgages, pledges and sets over unto the Agent on behalf of the Banks all of the right, title and interest of the Borrower and such Guarantor in all of such owned real property and in all such leasehold interests (limited, in the case of leasehold interests, to the proceeds received upon any sale, disposition or overtermination thereof), together in each case with all of the right, title and interest of the Borrower and such Guarantor in and to all buildings, improvements, and fixtures related thereto, any Collaterallease or sublease thereof, as set forth all general intangibles relating thereto and all proceeds thereof. The Borrower and each Guarantor acknowledges that, pursuant to the Orders, the Liens in favor of the Agent on behalf of the Banks in all of such real property and leasehold instruments (limited, in the Interim DIP Ordercase of leasehold interests, to the proceeds received upon any sale, disposition or termination thereof) shall be perfected without the recordation of any instruments of mortgage or assignment. The Borrower and each Guarantor further agrees that, upon the request of the Agent, the Borrower and such Guarantor shall enter into separate fee mortgages in recordable form with respect to such properties on terms reasonably satisfactory to the Agent.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Kmart Corp)
Priority and Liens. (a) Each of the Borrowers Credit Parties hereby covenants covenants, represents and agrees that warrants that, upon the entry of an the Interim DIP Financing Order (and when applicable, the Final DIP Order), and at all times thereafter:
(ai) Pursuant pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its the Obligations shall at all times constitute an allowed Superpriority Claim administrative expense claims in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), Bankruptcy Cases with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-OutCredit Parties, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time now existing or hereafter arising, of any kind or nature whatsoever, including, without limitation, administrative expenses of the kinds specified in or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 506(c), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision 1114 of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; Code and (bii) which shall at all times be senior pursuant to the rights of the Borrowers Sections 364(c)(2) and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A364(d) of the Bankruptcy Code, the Obligations shall at all times be secured by a perfected first priority Lien on all property and assets of each member of the Transit Group, except for the Excluded Assets, and all assets directly related to the Specified Contracts (other than the equipment set forth on Schedule III) subject only to (A) Senior Liens, (B) the Carve Out (defined below) in an aggregate amount not in excess of $1,450,000 (the "Carve-Out") and subordinate (C) the UST/Clerk Fees. The Carve-Out may be used only to pay the fees and expenses of professionals employed by the Credit Parties, the fees and expenses of professionals employed by any statutory committee appointed by the Bankruptcy Court under Section 1102 of the Bankruptcy Code ("Statutory Committee"), and the expenses of members of any such Statutory Committee; provided that all such fees and expenses are authorized to be paid or approved by the Bankruptcy Court to the extent required under the Bankruptcy Code; provided, however, that the Carve-Out and shall not include, apply to or be considered an administrative expense allowed under Section 503(bavailable for any fees or expenses incurred by any party, including the Credit Parties or any Statutory Committee, in connection with the initiation or prosecution (but not investigation) of the Bankruptcy Codeany claims, shall be against each Borrower on a joint and several basis, and shall be payable from and have recourse to all property of the Debtors’ estates (including, without limitation, all claims and causes of action arising under chapter 5 of action, adversary proceedings or other litigation against the Bankruptcy Code and any Administrative Agent, the proceeds thereof). Notwithstanding anything to Issuer or the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(i) pursuant to Section 364(d)(1) of the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the BorrowersLenders, including, without limitation, all cash and cash equivalentschallenging the amount, all surface landvalidity, accounts receivable and other receivables (other thanpriority or enforceability of, in each caseor asserting any defense, claim, counterclaim or offset to, the A/R Securitization Facility Collateral)Obligations or the Liens of the Administrative Agent, inventorythe Issuer and the Lenders under this Agreement in respect thereof. The Lenders and the Issuer agree that so long as the Maturity Date shall not have occurred or the Administrative Agent or the Lenders have not exercised any remedies as a result of an Event of Default, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien Credit Parties shall be subject permitted to pay compensation and reimbursement of expenses accrued and payable under 11 U.S.C.ss. 330 and 11 U.S.C.ss. 331, as the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(ii) pursuant to Section 364(c)(3) of the Bankruptcy Code, subject to the Carve-Out, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved same may bx xxx xxd payable as authorized by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there and the same shall be no Lien on amounts held in trust by a Specified Borrower for not reduce the A/R Securitization Seller or the secured parties amount available under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) . The foregoing shall not be subject construed as a consent to Sections 506, 510, 549, 550, the allowance of any fees and expenses or 551 bonuses referred to above and shall not affect the right of the Bankruptcy Code Credit Parties, the Administrative Agent, the Issuer or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases Lenders to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted object to the Collateral Agent (for the benefit allowance and payment of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP Ordersuch amounts.
Appears in 1 contract
Priority and Liens. (a) Each of the Borrowers Loan Parties hereby covenants covenants, represents and agrees that warrants that, upon the entry of an Interim the applicable DIP Order (noted below and when applicablethe delivery and execution of this Agreement, the Final DIP Order), and Obligations of the Loan Parties under the Loan Documents shall at all times thereaftertimes:
(ai) Pursuant Upon entry of the Interim Order, pursuant to Section section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an allowed Superpriority Claim in the Cases: (a) except as set forth in the Interim DIP Order (be entitled to joint and when applicable, the Final DIP Order), with several super-priority over any and all administrative expense claims and unsecured claims against status in the Borrowers or their estates in any of the Cases (but junior Bankruptcy Cases, subject only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, administrative expenses of the kinds specified in or ordered ;
(ii) pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1sections 364(d)(i) of the Bankruptcy Code; and (b) which shall at all times be senior to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(Ac)(2) of the Bankruptcy Code, be secured by (x) upon entry of the Final Order, to the extent, and only to the extent of, Obligations not to exceed $70,000,000, a perfected first priority “priming” liens on the Prepetition Collateral (other than Permitted Priority Liens), subject in all respects to Section 12 of the Seventh Amendment to the Existing First Lien Credit Agreement, dated as of November 30, 2015 and subordinate to repayment in full of the Obligations, as defined and under, the Existing First Lien Credit Agreement and (y) upon entry of the Interim Order, a perfected first priority Lien on all Collateral that is not subject to valid, perfected, and non-avoidable liens as of the Petition Date (including, subject to entry of the Final Order, Equity Interests in EHH owned by any Loan Party, to the extent that necessary consents are obtained for the pledge of such Equity Interests, and all proceeds thereof), in each case, subject to the Carve-Out; and
(iii) upon entry of the Interim Order, pursuant to section 364(c)(3) of the Bankruptcy Code and except as provided in Section 2.23(a)(ii)(x), be secured by a perfected Lien on all Prepetition Collateral, subject to the Carve-Out and shall be considered an administrative expense allowed subject to (w) Liens on Prepetition Collateral securing obligations under Section 503(bthe Existing Second Lien Credit Agreement and Existing Other Secured Debt, (x) valid Liens in existence on the Petition Date with respect to each Debtor, or (y) valid Liens that are perfected subsequent to the Petition Date as permitted by section 546(b) of the Bankruptcy Code, shall be against each Borrower on a joint and several basis, and shall be payable from and have recourse to all property . In the case of the Debtors’ estates (including, without limitation, all claims and causes of action arising under chapter 5 of the Bankruptcy Code and any the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
clauses (i) pursuant to Section 364(d)(1) of the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(ii) pursuant and (iii) above, such Liens shall be senior to Section 364(c)(3all administrative expenses of the kind specified in sections 503(b) and 507(b) of the Bankruptcy Code, subject only to the Carve-Out, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facilityout.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(eb) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) 2.23 shall be effective and perfected upon entry of the Interim DIP Order or Final Order, as applicable, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of titledocuments or notices, or the possession possession, control or control other acts by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim Order or Final Order, as applicable. The Lenders, or the Collateral Agent on behalf of the Lenders, shall be permitted, but not required, to make any filings, deliver any notices or take any other acts as may be desirable under state law in order to reflect the perfection and priority of the Lenders’ claims described herein
(c) Subject in all respects to the priorities set forth in Section 2.23(a) above, the Loan Parties hereby grant to the Collateral Agent on behalf of the Secured Parties a security interest in, and mortgage on, all of the right, title and interest of the Loan Parties in all real Property owned or leased by the Loan Parties, 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. The Loan Parties hereby acknowledge that, pursuant to the DIP Order, the Liens in favor of the Collateral Agent on behalf of the Secured Parties in all of such real Property owned or leased by the Loan Parties shall be perfected without the recordation of any instruments of mortgage or assignment and the Collateral Agent and the other Secured Parties shall have the benefits of the DIP Orders.
Appears in 1 contract
Priority and Liens. Each The Borrower, FCI and Holdings each hereby covenants, represents and warrants that, upon entry of the Borrowers hereby covenants and agrees that upon the entry of an Interim DIP Order (and when applicable, the Final DIP Order), and at all times thereafter:
(ai) Pursuant pursuant to Section 364(c)(1) of the Bankruptcy Code, all the Obligations of its Obligations the Borrower, FCI and Holdings hereunder and under the Loan Documents and in respect of Indebtedness permitted by Sections 6.3(vi) and Section 6.3(vii) shall at all times constitute an allowed Superpriority Claim in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, having priority over all administrative expenses of the kinds kind specified in Sections 503(b) or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 503(a), 503(b), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; and (b) which shall at all times be senior to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) of the Bankruptcy Code, be subject and subordinate (ii) pursuant to the Carve-Out and shall be considered an administrative expense allowed under Section 503(b364(c)(2) of the Bankruptcy Code, the Obligations of the Borrower, FCI and Holdings hereunder and under the Loan Documents and in respect of Indebtedness permitted by Sections 6.3(vi) and Section 6.3(vii) shall at all times be against each Borrower secured by a perfected first priority Lien on a joint and several basis, and shall be payable from and have recourse to all unencumbered property of the Debtors’ estates Borrower, FCI and Holdings (including, without limitationbut not limited to, all claims and causes of action arising under chapter 5 property that secured the obligations of the Bankruptcy Code Borrower under the Existing Agreements prior to the Filing Date) and all cash maintained in the Letter of Credit Account and any the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.
(c) The Liens granted to the Collateral Agent (for the benefit direct investments of the Secured Parties) securing the Obligations are continuing, valid, binding, enforceable, non-avoidable funds contained therein and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
(i) pursuant to Section 364(d)(1) of the Bankruptcy Code, a valid perfected first priority priming lien on, other than the Receivables Equity, all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(iiiii) pursuant to Section 364(c)(3) of the Bankruptcy Code, subject to the Carve-Out, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) Obligations of the Bankruptcy CodeBorrower, subject to the Carve-Out, upon entry of the Final DIP Order FCI and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties Holdings hereunder and under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit Loan Documents and in respect of the Secured PartiesIndebtedness permitted by Sections 6.3(vi) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP Order.Section
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Flagstar Companies Inc)
Priority and Liens. Each All of the Borrowers hereby covenants and agrees that upon the entry of an Interim DIP Order (and when applicable, the Final DIP Order), and Obligations shall at all times thereafterfrom and after the Petition Date:
(a) Pursuant pursuant to Section 364(c)(1) of the Bankruptcy Code, all constitute allowed superpriority administrative expense claims against the Loan Parties in each of its Obligations shall at all times constitute an allowed Superpriority Claim in the Cases: Cases and any Successor Case, on a joint and several basis (a) except as set forth in without the Interim DIP Order (and when applicable, the Final DIP Orderneed to file any proof of claim), with priority in payment over any and all other administrative expense claims, secured claims, unsecured claims and unsecured all other claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-OutLoan Parties, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time now existing or hereafter arising, of any kind or nature whatsoeverwhatsoever (the “DIP Superpriority Claim”), including, without limitation, all administrative expenses of the kinds kind specified in or ordered pursuant to Bankruptcy Code Sections 105, 326, 328, 330, 331, 364, 365, 503(a), 503(b), 506(c), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114or 1114 of the Bankruptcy Code, and any other provision of the Bankruptcy CodeCode or applicable non-bankruptcy law, as provided under Section 364(c)(1) of the Bankruptcy Code; and (b) which claims shall at all times be senior to the rights of the Borrowers and their estates, and any successor trustee or other estate representative to the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) of the Bankruptcy Code, be subject and subordinate to the Carve-Out and shall Code be considered an administrative expense expenses allowed under Section 503(b) of the Bankruptcy Code, shall be against each Borrower on a joint and several basis, and which DIP Superpriority Claims shall be payable from and have recourse to all pre- and postpetition property of the Debtors’ estates Loan Parties and all proceeds thereof, including all Collateral (including, without limitationfrom and after the Final Order Entry Date, subject to the approval of the Bankruptcy Court in the Final Order, all proceeds of claims and or causes of action arising under chapter 5 Sections 544, 545, 547, 548, 549, 550 and 553 of the Bankruptcy Code and any the proceeds thereof(collectively, “Avoidance Actions”). Notwithstanding anything ), subject only to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority Claim.Carve-Out;
(cb) The Liens granted pursuant to the Collateral Agent (for the benefit Section 364(c)(2) of the Secured Parties) securing the Obligations are continuingBankruptcy Code, be secured by a valid, bindingfully and automatically perfected, continuing, enforceable, non-avoidable first priority security interest and perfected liens Lien on all Collateralthe Collateral of each Loan Party, and shall constitute, to the extent such Collateral is not subject to clause (dx) below:
a valid, perfected and non-avoidable Lien in favor of a third party that was in existence on the Petition Date or (iy) pursuant a valid and non-avoidable Lien in favor of a third party that was in existence on the Petition Date and was perfected subsequent to the Petition Date solely to the extent permitted by Section 364(d)(1546(b) of the Bankruptcy Code, a valid perfected first priority priming lien on, other than Code (the Receivables Equity, all of the existing and after-acquired personal and real property, leasehold interests in real property, and tangible and intangible personal property of the Borrowers, including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other than, in each case, the A/R Securitization Facility Collateral“Permitted Prior Liens”), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject only to the Prior Senior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;Carve-Out; and
(iic) pursuant to Section 364(c)(3) of the Bankruptcy Code, be secured by a valid, fully and automatically perfected, continuing, enforceable, non-avoidable junior security interest and Lien on the Collateral of each Loan Party to the extent subject to Permitted Prior Liens, subject to (i) such Permitted Prior Liens, (ii) the Senior Permitted Liens and (iii) the Carve-Out, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related to any of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, or over, any Collateral, as set forth in the Interim DIP Order.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (PACIFIC GAS & ELECTRIC Co)
Priority and Liens. Each of the Borrowers hereby covenants and agrees that upon the entry of an Interim DIP Order (and when applicable, the Final DIP Order), and at all times thereafter:
(a) Pursuant The Lender Group’s Liens shall, pursuant to Sections 364(c)(2) and 364(d)(1) of the Bankruptcy Code, be senior, priming Liens senior to all other Liens, administrative expenses, claims and interests of the kinds specified in, or ordered pursuant to, Section 105, 326, 330, 331, 361, 363, 364, 503(b), 506(c), 507(a), 507(b), 726 or any other provision of the Bankruptcy Code, other than the Senior Claims and the Carve-Out Expenses, all as more fully set forth in the Final Financing Order.
(b) All Obligations shall, pursuant to Section 364(c)(1) of the Bankruptcy Code, all of its Obligations shall at all times constitute an be allowed Superpriority Claim in the Cases: (a) except as set forth in the Interim DIP Order (and when applicable, the Final DIP Order), with priority over any and all administrative expense claims and unsecured claims against the Borrowers or their estates in any of the Cases (but junior only to the Carve-Out, and pari passu with the A/R Securitization Facility Superpriority Claim), at any time existing or arising, of any kind or nature whatsoever, including, without limitation, administrative expenses of the Borrowers in the Chapter 11 Cases with super priority status senior to all other administrative expenses, claims and interests of the kinds specified in in, or ordered pursuant to Bankruptcy Code Sections to, Section 105, 326, 328, 330, 331, 363, 364, 503(a503(b), 503(b506(c), 507(a), 507(b), 546(c), 546(d), 726, 1113 and 1114, and 726 or any other provision of the Bankruptcy Code, as provided under Section 364(c)(1) of the Bankruptcy Code; and (b) which shall at all times be senior to the rights of the Borrowers and their estatesBorrowers, the Estates, the Committee, and any successor trustee or other estate Estate representative to in the extent permitted by law.
(b) Such Superpriority Claim shall, for purposes of Section 1129(a)(9)(A) of Chapter 11 Cases or any subsequent proceeding or case under the Bankruptcy Code, be subject and subordinate only to the Carve-Out and shall be considered an administrative expense allowed under Section 503(b) of the Bankruptcy Code, shall be against each Borrower on a joint and several basis, and shall be payable from and have recourse to all property of the Debtors’ estates (including, without limitationExpenses, all claims and causes of action arising under chapter 5 of as more fully set forth in the Bankruptcy Code and any the proceeds thereof). Notwithstanding anything to the contrary, such Superpriority Claim shall be pari passu with any A/R Securitization Facility Superpriority ClaimFinal Financing Order.
(c) The Lender Group’s Liens granted to and the Collateral Agent (for the benefit Lenders’ Post-Petition Super Priority shall also have priority over any claims or administrative expenses arising under Section 506(c) of the Secured Parties) securing Bankruptcy Code subject and subordinate only to, in the Obligations are continuingcase of the Lender Group’s Liens only, validthe Senior Claims and, bindingin the case of both the Lender Group’s Liens and the Lenders’ Post-Petition Super Priority, enforceable, nonthe Carve-avoidable Out Expenses. So long as no Carve-Out Event shall have occurred and perfected liens on all Collateral, and shall constitute, subject to clause (d) below:
be continuing (i) pursuant the Borrowers shall be permitted to Section 364(d)(1) pay administrative expenses allowed and payable under Sections 330 and 331 of the Bankruptcy Code, a valid perfected first priority priming lien on, other than as the Receivables Equity, all of the existing same may become due and after-acquired personal and real property, leasehold interests in real propertypayable, and tangible and intangible personal property of (ii) such payments shall not be applied to reduce the Borrowers, including, without limitation, all cash and cash equivalents, all surface land, accounts receivable and other receivables (other thanCarve-Out Expenses, in each case, the A/R Securitization Facility Collateral), inventory, equipment, machinery, parts, supplies, rolling stock, fixtures, patents, trade names, trademarks, copyrights, other general intangibles and membership interests, capital stock and Equity Interests owned by the Borrowers, in each case, together with the proceeds thereof and all books and records relating thereto; provided, that, such priority priming lien shall be subject to the Prior Permitted Liens and any account holding adequate assurance deposits for the benefit of the Borrowers’ utility providers during the pendency of the Cases;
(ii) pursuant to Section 364(c)(3) of the Bankruptcy Code, subject to the Carve-Out, a valid perfected second priority lien on (A) the Receivables Equity and (B) any collateral subject to a Prior Permitted Lien (other than the A/R Securitization Facility Collateral); and
(iii) pursuant to Section 364(c)(2) of the Bankruptcy Code, subject to the Carve-Out, upon entry of the Final DIP Order and to the extent approved by the Bankruptcy Court, a valid perfected first priority lien on any property or proceeds recovered from any Avoidance Actions; provided, that, there shall be no Lien on amounts held in trust by a Specified Borrower for the A/R Securitization Seller or the secured parties under the A/R Securitization Facility.
(d) The Liens granted to the Collateral Agent (for the benefit of the Secured Parties) and such Superpriority Claim, subject to the Carve-Out: (i) shall not be subject to Sections 506, 510, 549, 550, or 551 of the Bankruptcy Code or the “equities of the case” exception of Section 552 of the Bankruptcy Code, (i) shall not be subordinate to, or pari passu with, (w) any lien, security interest or claim heretofore or hereinafter granted in any of the Cases or any Successor Cases (other than the A/R Securitization Facility Superpriority Claim and the liens on the Receivables Equity), (y) any lien that is avoided and preserved for the benefit of the Borrowers and their estates under Section 551 of the Bankruptcy Code or otherwise or (y) any intercompany or affiliate liens or claims of the Debtors, and (iii) shall be valid and enforceable against any trustee or any other estate representative appointed or elected in the Cases, upon the conversion of any of the Cases to a case under chapter 7 of the Bankruptcy Code or in any other proceedings related instance without prejudice to any the right of the foregoing, and/or upon the dismissal of any of the Cases.
(e) All of the Liens described in this Section 2.19 that have been granted to the Collateral Agent (for the benefit of the Secured Parties) shall be effective and perfected upon entry of the Interim DIP Order, without the necessity of the execution, recordation of filings by the Debtors of mortgages, intellectual property security agreements, security agreements, control agreements, pledge agreements, financing statements or other similar documents, lien notation on any certificates of title, or the possession or control by any Agent or any Secured Party of, Lender to object to the interim or over, final allowance of any Collateral, compensation or reimbursement of expenses. Except as set forth herein or in the Interim DIP Final Financing Order, no other administrative expense having a priority superior to or pari passu with that granted to the Lenders by the Final Financing Order shall be granted or approved while any Obligations under this Agreement remain outstanding.
Appears in 1 contract
