Common use of Security and Priorities Clause in Contracts

Security and Priorities. All of the Obligations shall, subject to the Carve-Out, at all times: (a) Pursuant to Section 364(c)(1) of the Bankruptcy Code, constitute allowed superpriority administrative expense claims against the Debtors (without the need to file any proof of claim) with priority over any and all claims against the Debtors, now existing or hereafter arising, of any kind whatsoever, including, without limitation, all administrative expenses of the kind specified in Sections 503(b) and 507(b) of the Bankruptcy Code and any and all administrative expenses or other claims arising under Sections 105, 326, 328, 330, 331, 364, 365, 503(b), 506(c), 507(a), 507(b), 726, 1113 or 1114 of the Bankruptcy Code (including any adequate protection obligations), whether or not such expenses or claims may become secured by a judgment lien or other non-consensual lien, levy or attachment, which allowed claims (the “DIP Superpriority Claims”) shall for purposes of Section 1129(a)(9)(A) of the Bankruptcy Code be considered administrative expenses allowed under section 503(b) of the Bankruptcy Code, and which DIP Superpriority Claims shall be payable from and have recourse to all pre- and post-petition property of the Debtors and all proceeds thereof (excluding Avoidance Actions but including, effective upon entry of the Final Financing Order, Avoidance Proceeds), subject only to the Liens thereon and the Carve-Out. The DIP Superpriority Claims shall be entitled to the full protection of Section 364(e) of the Bankruptcy Code in the event that the Interim Financing Order (or, after entry thereof, the Final Financing Order) or any provision thereof is vacated, reversed, amended or otherwise modified, on appeal or otherwise. (b) Pursuant to Section 364(c)(2) of the Bankruptcy Code, be secured by (i) a valid, perfected, continuing, enforceable, non-avoidable first priority security interest and lien on the Collateral of each Debtor, (x) to the extent such Collateral is not subject to valid, perfected and non-avoidable liens permitted under the Prepetition First Lien Credit Agreement as of the Petition Date and (y) including claims and causes of action under Sections 502(d), 544, 545, 547, 548 and 550 of the Bankruptcy Code (collectively “Avoidance Actions”) (it being understood that such lien on Avoidance Actions shall attach upon entry of the Final Financing Order). (c) Pursuant to Section 364(c)(3) of the Bankruptcy Code, be secured by a valid, perfected, continuing, enforceable, non-avoidable security interest and lien on the Collateral of each Debtor, to the extent that such Collateral, as applicable, is subject to (x) valid, perfected and unavoidable liens in favor of third parties that were in existence and permitted under the Prepetition First Lien Credit Agreement immediately prior to the Petition Date, or (y) valid and unavoidable liens in favor of third parties that were in existence and permitted under the Prepetition First Lien Credit Agreement immediately prior to the Petition Date that were perfected subsequent to the Petition Date as permitted by Section 546(b) of the Bankruptcy Code, subject as to priority to Prepetition Prior Liens; provided that this clause (c) shall not apply to the Primed Liens, which existing liens will be primed by the liens described in clause (d) below, as applicable. (d) Pursuant to Section 364(d)(1) of the Bankruptcy Code, be secured by a perfected first priority priming security interest and lien on the Collateral of each Debtor (the “Priming Liens”) to the extent that such Collateral is subject to the Primed Liens, which Priming Liens pursuant to this clause (d) shall, for the avoidance of doubt, be senior to (x) any current and future liens granted on such property of (i) the Prepetition First Lien Lenders under the Prepetition First Lien Credit Agreement and the other “secured parties” referred to therein (the “Prepetition First Lien Credit Agreement Primed Parties”), (ii) the holders of Second Lien Notes and the other “secured parties” under the Second Lien Notes Indenture and related security agreements (the “Second Lien Notes Primed Parties”), and (iii) the lenders under the Receivables Facility and the other “secured parties” under the Receivables Facility and related security agreements (the “Receivables Facility Primed Parties”), and (y) any liens granted to provide adequate protection in respect of any of the Primed Liens; provided that the liens pursuant to this clause (d) shall be subject as to priority only to (x) the Carve-Out and (y) Permitted Liens on cash collateral securing Cash Management Agreements with a Cash Management Bank. (e) Notwithstanding anything to the contrary in this Section 2.17, with respect to any Collateral consisting of the proceeds of any sale, transfer or other disposition of Collateral, the relative priorities of the liens securing NM Term Loan Obligations and Roll-Up Loan Obligations shall be preserved in all respects, and (a) the liens securing Roll-Up Loan Obligations shall be entitled to the priorities otherwise applicable to the liens securing NM Term Loan Obligations and (b) the liens securing NM Term Loan Obligations shall be entitled to the priorities otherwise applicable to the liens securing Roll-Up Loan Obligations, if any.

Security and Priorities. All of the Obligations shall, subject to the Carve-Out, at all times: (a) Pursuant to Section section 364(c)(1) of the Bankruptcy Code, constitute allowed superpriority administrative expense claims against the Debtors Loan Parties (without the need to file any proof of claim) with priority over any and all claims against the DebtorsLoan Parties, now existing or hereafter arising, of any kind whatsoever, including, without limitation, all administrative expenses of the kind specified in Sections sections 503(b) and 507(b) of the Bankruptcy Code and any and all administrative expenses or other claims arising under Sections sections 105, 326, 328, 330, 331, 364, 365, 503(b), 506(c), 507(a), 507(b), 726, 1113 or 1114 of the Bankruptcy Code (including any adequate protection obligationsobligations and any Superpriority Claims pursuant to the SSA Order), whether or not such expenses or claims may become secured by a judgment lien or other non-consensual lien, levy or attachment, which allowed claims (the “DIP Superpriority Claims”) shall for purposes of Section section 1129(a)(9)(A) of the Bankruptcy Code be considered administrative expenses allowed under section 503(b) of the Bankruptcy Code, and which DIP Superpriority Claims shall be payable from and have recourse to all pre- and post-petition postpetition property of the Debtors Loan Parties and all proceeds thereof (excluding Avoidance Actions but including, effective upon entry of the Final Financing Order, Avoidance Proceeds), subject only to the Liens thereon and the Carve-Out. The DIP Superpriority Claims shall be entitled to the full protection of Section section 364(e) of the Bankruptcy Code in the event that the Interim Financing Order (or, after entry thereof, the Final Financing Order) or any provision thereof is vacated, reversed, amended or otherwise modified, on appeal or otherwise. The DIP Superpriority Claims in respect of the Obligations and the DIP Superpriority Claims (as defined in the Interim Financing Order or, after entry thereof, the Final Financing Order) in respect of the DIP Term Obligations shall rank equal and pari passu with one another. (b) Pursuant to Section 364(c)(2) of the Bankruptcy Code, be secured by (i) a valid, perfected, continuing, enforceable, non-avoidable first priority security interest and lien on the ABL Priority Collateral of each DebtorLoan Party and (ii) a valid, perfected, continuing, enforceable, non-avoidable junior security interest and lien on the Non-ABL Priority Collateral of each Loan Party subject as to priority only to (A) the senior security interest and lien on the Non-ABL Priority Collateral of each Loan Party securing the DIP Term Obligations and (B) the SSA Lien; in each case of this clause (b), (x) to the extent such ABL Priority Collateral or Non-ABL Priority Collateral, as applicable, is not subject to valid, perfected and non-avoidable liens permitted under the Prepetition First Lien Credit Agreement as of the Petition Date or becomes unencumbered by any such liens in effect as of the Petition Date as a result of the repayment of Prepetition Debt with the proceeds of any extensions of credit hereunder and/or under the DIP Term Loan Agreement and (y) including excluding claims and causes of action under Sections sections 502(d), 544, 545, 547, 548 and 550 of the Bankruptcy Code (collectively “Avoidance Actions”) (it being understood that notwithstanding such lien on exclusion of Avoidance Actions shall attach Actions, upon entry of the Final Financing Order, to the extent approved by the Bankruptcy Court, such lien shall attach to any Avoidance Proceeds). (c) Pursuant to Section 364(c)(3) of the Bankruptcy Code, be secured by (i) a valid, perfected, continuing, enforceable, non-avoidable security interest and lien on the ABL Priority Collateral of each DebtorLoan Party, senior in priority to the SSA Lien and the security interests and liens on the ABL Priority Collateral of each Loan Party securing the DIP Term Obligations or any Prepetition Debt and (ii) a valid, perfected, continuing, enforceable, non-avoidable security interest and lien on the Non-ABL Priority Collateral of each Loan Party subject as to priority to (A) the senior security interest and lien on the Non-ABL Priority Collateral of each Loan Party securing the DIP Term Obligations, (B) the SSA Lien, (C) existing liens securing the Prepetition Term Debt and (D) any liens granted on the Non-ABL Priority Collateral pursuant to the Financing Orders to provide adequate protection to the Prepetition Term Secured Parties, in each case of this clause (c), to the extent that such ABL Priority Collateral or Non-ABL Priority Collateral, as applicable, is subject to (x) valid, perfected and unavoidable liens in favor of third parties that were in existence and permitted under the Prepetition First Lien Credit Agreement immediately prior to the Petition Date, or (y) valid and unavoidable liens in favor of third parties that were in existence and permitted under the Prepetition First Lien Credit Agreement immediately prior to the Petition Date that were perfected subsequent to the Petition Date as permitted by Section 546(b) of the Bankruptcy Code, subject as to priority to Prepetition Permitted Prior Liens; provided that this clause (c) shall not apply to the Primed Liensexisting liens (x) on any Collateral that secures any Prepetition ABL Debt or (y) on any ABL Priority Collateral that secures any Prepetition Term Debt, which existing liens will be primed by the liens described in clause (d) or clause (e) below, as applicable. (d) Pursuant to Section 364(d)(1) of the Bankruptcy Code, be secured by a perfected valid, perfected, continuing, enforceable, non-avoidable first priority priming security interest and lien on the ABL Priority Collateral of each Debtor (the “Priming Liens”) Loan Party senior to the extent SSA Lien and existing liens that such Collateral is subject to the Primed Lienssecure (i) any Prepetition ABL Debt or (ii) any Prepetition Term Debt, which Priming Liens priming liens pursuant to this clause (d) shall, for the avoidance of doubt, be senior to (x) any current and future liens granted on such property the ABL Priority Collateral to or for the benefit of any Prepetition Secured Parties (i) the Prepetition First Lien Lenders under the Prepetition First Lien Credit Agreement and the other “secured parties” referred to therein (the “Prepetition First Lien Credit Agreement Primed Parties”)including, (ii) the holders of Second Lien Notes and the other “secured parties” under the Second Lien Notes Indenture and related security agreements (the “Second Lien Notes Primed Parties”)without limitation, and (iii) the lenders under the Receivables Facility and the other “secured parties” under the Receivables Facility and related security agreements (the “Receivables Facility Primed Parties”), and (y) any liens granted to provide adequate protection in respect of any of the Primed Liensprotection); provided that the liens pursuant to this clause (d) shall be subject as to priority only to (xw) the Carve-Out Out, (x) Liens on the ABL Priority Collateral that are valid, binding, enforceable, properly perfected, nonavoidable and senior in priority to the Prepetition ABL Liens (as defined in the Financing Orders) as of the Petition Date (other than those referred to in the foregoing clauses (i) and (ii)), (y) Liens permitted under Sections 6.02(c), (d), (i), (l), (n), (p), (r), (s), (u) and (v) that are not junior or subordinated to the Liens securing the Obligations (pursuant to any express agreement or applicable law), and (z) Permitted Liens on cash collateral securing Cash Management Agreements with a Cash Management Bank. (e) Pursuant to Section 364(d)(1) of the Bankruptcy Code, be secured by a valid, perfected, continuing, enforceable, non-avoidable junior priority priming security interest and lien on the Non-ABL Priority Collateral of each Loan Party, senior to existing liens that secure any Prepetition ABL Debt; provided that the liens pursuant to this clause (e) shall be (i) subject as to priority only to (t) the Carve-Out, (u) the SSA Lien, (v) the priming security interest and lien on the Non-ABL Priority Collateral securing the DIP Term Obligations, (w) the existing liens and, to the extent granted pursuant to the Financing Orders, any liens granted on the Non-ABL Priority Collateral pursuant to the Financing Orders to provide adequate protection to the Prepetition Term Secured Parties, (x) Liens on the Non-ABL Priority Collateral that are valid, binding, enforceable, properly perfected, nonavoidable and senior in priority to the Prepetition ABL Liens (as defined in the Financing Orders) as of the Petition Date (other than those referred to in the following clause (ii)), (y) Liens permitted under Xxxxxxxx 0.00(x), (x), (x), (x), (x), (x), (x), (x), (x), (x), (x) and (x) that are not junior or subordinated to the Liens securing the Obligations (pursuant to any express agreement or applicable law), and (z) Permitted Liens on cash collateral securing Cash Management Agreements with a Cash Management Bank, and (ii) senior to any current and future liens granted on the Non-ABL Priority Collateral to or for the benefit of any Prepetition ABL Secured Parties (including, without limitation, to provide adequate protection). Notwithstanding anything to the contrary in this Section 2.172.23, with respect to any Collateral consisting of the proceeds of any sale, transfer or other disposition of Collateral, (i) the relative priorities of the liens Liens securing NM Term Loan the Obligations and Roll-Up Loan the Liens securing the DIP Term Obligations shall be preserved subject in all respects, respects to the terms of the DIP Intercreditor Agreement and (aii) any provisions in this Section 2.23 relating to Permitted Prior Liens shall not limit the liens securing Roll-Up rights and remedies of the Secured Parties under the Loan Obligations shall be entitled Documents to the priorities otherwise applicable to the liens securing NM Term Loan Obligations and (b) the liens securing NM Term Loan Obligations shall be entitled to the priorities otherwise applicable to the liens securing Roll-Up Loan Obligations, if anyextent such Liens are not permitted by Section 6.02.

Security and Priorities. All of the Obligations shall, subject to the Carve-Out, at all times: (a) Pursuant to Section section 364(c)(1) of the Bankruptcy Code, constitute allowed superpriority administrative expense claims against the Debtors Loan Parties (without the need to file any proof of claim) with priority over any and all claims against the DebtorsLoan Parties, now existing or hereafter arising, of any kind whatsoever, including, without limitation, all administrative expenses of the kind specified in Sections sections 503(b) and 507(b) of the Bankruptcy Code and any and all administrative expenses or other claims arising under Sections sections 105, 326, 328, 330, 331, 364, 365, 503(b), 506(c), 507(a), 507(b), 726, 1113 or 1114 of the Bankruptcy Code (including any adequate protection obligationsobligations and, with respect to the NM Term Loan Obligations, senior to any Superpriority Claims pursuant to the SSA Order and, with respect to the Roll-Up Loan Obligations, junior to any Superpriority Claims pursuant to the SSA Order), whether or not such expenses or claims may become secured by a judgment lien or other non-consensual lien, levy or attachment, which allowed claims (the “DIP Superpriority Claims”) shall for purposes of Section section 1129(a)(9)(A) of the Bankruptcy Code be considered administrative expenses allowed under section 503(b) of the Bankruptcy Code, and which DIP Superpriority Claims shall be payable from and have recourse to all pre- and post-petition postpetition property of the Debtors Loan Parties and all proceeds thereof (excluding Avoidance Actions but including, effective upon entry of the Final Financing Order, Avoidance Proceeds), subject only to the Liens thereon and the Carve-Out. The DIP Superpriority Claims shall be entitled to the full protection of Section section 364(e) of the Bankruptcy Code in the event that the Interim Financing Order (or, after entry thereof, the Final Financing Order) or any provision thereof is vacated, reversed, amended or otherwise modified, on appeal or otherwise. The DIP Superpriority Claims in respect of the Obligations and the DIP Superpriority Claims (as defined in the Interim Financing Order or, after entry thereof, the Final Financing Order) in respect of the DIP ABL Obligations shall rank equal and pari passu with one another. (b) Pursuant to Section 364(c)(2) of the Bankruptcy Code, be secured by (i) a valid, perfected, continuing, enforceable, non-avoidable first priority security interest and lien on the Non-ABL Priority Collateral of each DebtorLoan Party and (ii) a valid, perfected, continuing, enforceable, non-avoidable junior priority security interest and lien on the ABL Priority Collateral of each Loan Party subject as to priority only to (A) the senior security interest and lien on the ABL Priority Collateral of each Loan Party securing the DIP ABL Obligations and (B) to the extent provided for in the Financing Orders, the SSA Lien; in each case of this clause (b), (x) to the extent such Non-ABL Priority Collateral or ABL Priority Collateral, as applicable, is not subject to valid, perfected and non-avoidable liens permitted under the Prepetition First Lien Credit Agreement as of the Petition Date or becomes unencumbered by any such liens in effect as of the Petition Date as a result of the repayment of Prepetition Debt with the proceeds of any extensions of credit hereunder and/or under the DIP ABL Credit Agreement and (y) including excluding claims and causes of action under Sections sections 502(d), 544, 545, 547, 548 and 550 of the Bankruptcy Code (collectively “Avoidance Actions”) (it being understood that notwithstanding such lien on exclusion of Avoidance Actions shall attach Actions, upon entry of the Final Financing Order, to the extent approved by the Bankruptcy Court, such lien shall attach to any Avoidance Proceeds). (c) Pursuant to Section 364(c)(3) of the Bankruptcy Code, be secured by (i) a valid, perfected, continuing, enforceable, non-avoidable security interest and lien on the Non-ABL Priority Collateral of each DebtorLoan Party, senior in priority to the security interests and liens on the Non-ABL Priority Collateral of each Loan Party securing the DIP ABL Obligations or any Prepetition Debt and (ii) a valid, perfected, continuing, enforceable, non-avoidable security interest and lien on the ABL Priority Collateral of each Loan Party subject as to priority to (A) the senior security interest and lien on the ABL Priority Collateral of each Loan Party securing the DIP ABL Obligations and (B) with respect to the Roll-Up Loan Obligations, the SSA Lien, (C) Liens securing Prepetition ABL Debt (if any), (D) any Liens granted on the ABL Priority Collateral pursuant to the Financing Order to provide adequate protection to the Prepetition ABL Secured Parties, in each case of this clause (c), to the extent that such Non-ABL Priority Collateral or ABL Priority Collateral, as applicable, is subject to (x) valid, perfected and unavoidable liens in favor of third parties that were in existence and permitted under the Prepetition First Lien Credit Agreement immediately prior to the Petition Date, or (y) valid and unavoidable liens in favor of third parties that were in existence and permitted under the Prepetition First Lien Credit Agreement immediately prior to the Petition Date that were perfected subsequent to the Petition Date as permitted by Section 546(b) of the Bankruptcy Code, subject as to priority to Prepetition Permitted Prior Liens; provided that this clause (c) shall not apply to the Primed Liensexisting liens (x) on any Collateral that secures any Prepetition Term Debt or (y) on any Non-ABL Priority Collateral that secures any Prepetition ABL Debt, which existing liens will be primed by the liens described in clause (d) or clause (e) below, as applicable. (d) Pursuant to Section 364(d)(1) of the Bankruptcy Code, be secured by a perfected first valid, perfected, continuing, enforceable, non-avoidable junior priority priming security interest and lien on the ABL Priority Collateral of each Debtor (the “Priming Liens”) to the extent that such Collateral is subject to the Primed LiensLoan Party, which Priming Liens pursuant to this clause (d) shall, for the avoidance of doubt, be senior to (x) existing liens that secure any current and future liens granted on such property of (i) the Prepetition First Lien Lenders under the Prepetition First Lien Credit Agreement and the other “secured parties” referred to therein (the “Prepetition First Lien Credit Agreement Primed Parties”), (ii) the holders of Second Lien Notes and the other “secured parties” under the Second Lien Notes Indenture and related security agreements (the “Second Lien Notes Primed Parties”), and (iii) the lenders under the Receivables Facility and the other “secured parties” under the Receivables Facility and related security agreements (the “Receivables Facility Primed Parties”), and (y) any liens granted to provide adequate protection in respect of any of the Primed LiensTerm Debt; provided that the liens pursuant to this clause (d) shall be (i) subject as to priority only to (xt) the Carve-Out Out, (u) the first priority priming security interest and lien on the ABL Priority Collateral securing the DIP ABL Obligations, (v) the existing liens and, to the extent granted pursuant to the Financing Orders, any liens granted on the ABL Priority Collateral pursuant to the Financing Orders to provide adequate protection to the Prepetition ABL Secured Parties, (w) Liens (as defined in the Prepetition Term Loan Agreement) on the ABL Priority Collateral that are valid, binding, enforceable, properly perfected, nonavoidable and senior in priority to the Prepetition Term Lender Liens (as defined in the Financing Orders) as of the Petition Date (other than those referred to in the following clause (ii)), (x) Liens permitted under Sections 6.02(c), (d), (i), (l), (n), (p), (r), (s), (u), and (v) that are not junior or subordinated to the Liens securing the Obligations (pursuant to any express agreement or applicable law or otherwise) and, with respect to any liens granted to provide adequate protection to the Prepetition ABL Secured Parties, Section 6.02(x), (y) Permitted Liens on cash collateral securing Cash Management Agreements with a Cash Management Bank and (z) with respect to the Roll-Up Loan Obligations, the SSA Lien, and (ii) senior to, with respect to the NM Term Loan Obligations, the SSA Lien and any current and future liens granted on the ABL Priority Collateral to or for the benefit of any Prepetition Term Secured Parties (including, without limitation, to provide adequate protection). (e) Pursuant to Section 364(d)(1) of the Bankruptcy Code, be secured by a valid, perfected, continuing, enforceable, non-avoidable first priority priming security interest and lien on the Non-ABL Priority Collateral of each Loan Party senior to (i) with respect to the NM Term Loan Obligations, the SSA Lien, (ii) existing liens that secure any Prepetition Term Debt and (iii) existing liens that secure any Prepetition ABL Debt, which priming liens pursuant to this clause (e) shall, for the avoidance of doubt, be senior to any current and future liens granted on the Non-ABL Priority Collateral to or for the benefit of any Prepetition Secured Parties (including, without limitation, to provide adequate protection); provided that the liens pursuant to this clause (e) shall be subject as to priority only to (v) the Carve-Out, (w) with respect to the Roll-Up Loan Obligations, the SSA Lien, (x) Liens (as defined in the Prepetition Term Loan Agreement) on the Non-ABL Priority Collateral that are valid, binding, enforceable, properly perfected, nonavoidable and senior in priority to the Prepetition Term Lender Liens (as defined in the Financing Orders) as of the Petition Date (other than those referred to in the foregoing clauses (ii) and (iii)), (y) Liens permitted under Xxxxxxxx 0.00(x), (x), (x), (x), (x), (x), (x), (x), (x), (x) and (v) that are not junior or subordinated to the Liens securing the Obligations (pursuant to any express agreement or applicable law), and (z) Permitted Liens on cash collateral securing Cash Management Agreements with a Cash Management Bank. (ef) Notwithstanding anything to the contrary in this Section 2.172.20, with respect to any Collateral consisting of the proceeds of any sale, transfer or other disposition of Collateral, the relative priorities of the liens securing NM Term Loan Obligations and Roll-Up Loan Obligations shall be preserved reversed in all respects, and (a) the liens securing Roll-Up Loan Obligations shall be entitled to the priorities otherwise applicable to the liens securing NM Term Loan Obligations and Obligations, (b) the liens securing NM Term Loan Obligations shall be entitled to the priorities otherwise applicable to the liens securing Roll-Up Loan Obligations, if any, and (c) the priorities of all other liens set forth in Section 2.20 shall be preserved and not be modified or affected in any way by the provisions of this Section 2.20(f). Notwithstanding anything to the contrary in this Section 2.20, (i) the relative priorities of the Liens securing the Obligations and the Liens securing the DIP ABL Obligations, solely as between them, shall be subject in all respects to the terms of the DIP Intercreditor Agreement and (ii) any provisions in this Section 2.20 relating to Permitted Prior Liens shall not limit the rights and remedies of the Secured Parties under the Loan Documents to the extent such Liens are not permitted by Section 6.02.