Superpriority Claims and Collateral Security. (a) Each of the Borrowers hereby represents, warrants and covenants that, except as otherwise expressly provided in this paragraph, the Obligations, upon the entry of the Interim Order or the Final Order, whichever first occurs:
(i) shall at all times constitute a Superpriority Claim in the Case of the Borrowers having priority, pursuant to Sections 364(c)(1) and 507(b) of the Bankruptcy Code (subject only to the Carve Out), over the other Superpriority Claim granted as adequate protection in respect of the Prepetition Lenders and any other claims of any entity, including without limitation any claims under Sections 105, 326, 328, 330, 331, 503(a), 503(b), 506(c), 507(a), 507(b), 546(c), 546(d), 726 (to the extent permitted by law) 1113 and 1114 of the Bankruptcy Code, and shall at all times be senior to the rights of the Borrowers, any successor trustee to the extent permitted by law, or any other creditor in the Case;
(ii) pursuant to Sections 364(c)(2) and 364(d) of the Bankruptcy Code and the Security Documents, shall at all times be secured by (A) a first priority perfected Lien on (1) all presently owned and hereafter acquired assets of the Borrowers and their estates, and any proceeds and products thereof, including without limitation, accounts, deposit accounts, investments, instruments, documents, inventory, contract rights, franchise agreements, general intangibles, intellectual property, real property, fixtures, goods, equipment and other fixed assets and proceeds and products of all of the foregoing (including insurance proceeds), (2) proceeds of any avoidance power claims of the Borrower under Section 549 of the Bankruptcy Code, pursuant to the terms of the Security Documents and the Orders, (3) proceeds of avoidance actions under Chapter 5 of the Bankruptcy Code, (4) any rights under Section 506(c) of the Bankruptcy Code and the proceeds thereof, and (5) any unencumbered assets of the Borrowers, and (B) a Lien on all assets of the Borrowers securing other Indebtedness (including without limitation a Lien on the cash collateral established at restricted account no. 910 000 1569 with Bank of America, N.A.), junior only to Prior Permitted Liens.
(b) Such Superpriority Claim referred to in §6.1(a) shall not include Avoidance Actions but shall be subject to the Carve Out. Such Lien shall not extend to Avoidance Actions and shall be subject to the Carve Out, but otherwise shall be senior in priority to the adequate protection Liens securing the Pre...
Superpriority Claims and Collateral Security. The Borrowers hereby represent, warrant and covenant that, except as otherwise expressly provided in this Section 5.01, upon the entry of the Final Order:
(a) subject to the Carve Out, the Tranche A Loans shall be:
(i) secured by first priority liens on and security interests pursuant to Section 364(c)(2) of the Bankruptcy Code in all of the outstanding capital stock of the Debtors' Subsidiaries in the United Kingdom and Canada;
(ii) pursuant to Section 364(c)(3) of the Bankruptcy Code, secured by liens and security interests that are junior to the liens and security interests of the Prepetition Lender under the Prepetition Financing Documents, on all of the assets of the Borrowers and their Domestic Subsidiaries, including without limitation, all goods (including without limitation, equipment and inventory), deposit accounts, investment property, accounts, chattel paper, instruments, documents, letter-of-credit rights, commercial tort claims, insurance claims, supporting obligations and liens, real estate interests and general intangibles of the Borrowers and their Domestic Subsidiaries of any nature, whether now owned or hereafter acquired, but excluding Avoidance Claims; and
(iii) entitled to Superpriority Claim status pursuant to Section 364(c)(1) of the Bankruptcy Code senior to any other claims of any entity, including, without limitation, any claims under Sections 503, 507, 1113 and 1114 of the Bankruptcy Code, except that any Superpriority Claim status accorded to the Tranche A Loans shall have equal priority, pari passu, with any Superpriority Claim held by the Prepetition Lender pursuant to Section 507(b) of the Bankruptcy Code. The liens described in Subsections (a)(i) and (a)(ii) above are referred to as the "TRANCHE A LIENS".
(b) subject to the Carve Out, the Tranche B Loans and the Tranche C Loans shall be:
(i) secured pursuant to Section 364(d)(1) of the Bankruptcy Code by first priority security interests in and liens on (A) all of the assets of the Borrowers and their Domestic Subsidiaries, including, without limitation, all goods (including without limitation, equipment and inventory), deposit accounts, investment property, accounts, chattel paper, instruments, documents, letter-of-credit rights, commercial tort claims, insurance claims, supporting obligations and liens, real estate interests, Avoidance Claims and general intangibles of the Borrowers and their Domestic Subsidiaries of any nature, whether now owned or hereafter acquired an...
Superpriority Claims and Collateral Security. (i) Each of the Credit Parties hereby represents, warrants and covenants that, except as otherwise expressly provided in this paragraph, the Obligations, upon the entry of the Final Order:
(1) shall at all times constitute a Superpriority Claim in the Case of the Credit Parties having priority, pursuant to Sections 364(c)(1) and 507(b) of the Bankruptcy Code (subject only to the Carve Out), over the other Superpriority Claim granted as adequate protection in respect of the Prepetition Lenders and any other claims of any entity, including without limitation any claims under Sections 105, 326, 328, 330, 331, 365, 503(a), 503(b), 506(c), 507(a), 507(b), 546(c), 546(d), 726 (to the extent permitted by law) 1113 and 1114 of the Bankruptcy Code, and shall at all times be senior to the rights of the Credit Parties, any successor trustee to the extent permitted by law, or any other creditor in the Case;
(2) pursuant to Sections 361, 362, 364(c)(2), 364(c)(3) and 364(d) of the Bankruptcy Code and the Security Documents, shall at all times be secured by, and each Credit Party hereby grants to Administrative Agent for the benefit of itself and the other Secured Parties, (A) a first priority perfected Lien (subject to Permitted Prior Liens and the Carve Out) on (1) all presently owned and hereafter acquired assets of the Credit Parties and their estates wherever located, and any proceeds and products thereof, including without limitation, accounts, deposit accounts, cash, as-extracted collateral, chattel paper, investment property, letter-of-credit rights, securities accounts, commercial tort claims, investments, instruments, documents, inventory, contract rights, franchise agreements, general intangibles, intellectual property, real property, fixtures, goods, equipment and other fixed assets and proceeds and products of all of the foregoing (including insurance proceeds), provided, however, excluding the Excluded Collateral, (2) proceeds of any avoidance actions brought pursuant to Section 549 of the Bankruptcy Code to recover any post-petition transfer of collateral, (3) any rights under Section 506(c) of the Bankruptcy Code and the proceeds thereof, (4) any unencumbered assets of the Credit Parties other than the Excluded Collateral and any of the foregoing which constitutes “Post-Petition L/C Collateral” as such term is defined in the L/C Order, and (5) a pledge, for the benefit of the Secured Parties and the Administrative Agent, of one hundred percent (100%) of ...
Superpriority Claims and Collateral Security. Each Credit Party hereby represents, warrants and covenants that:
(a) The Case was commenced on the Petition Date in accordance with applicable law and proper notice has been or will be given of (i) the motion seeking approval of the Loan Documents, the Interim Order and Final Order, (ii) the hearing for the entry of the Interim Order, and (iii) the hearing for the entry of the Final Order, as applicable, all notices required to be given to all parties specified in the Interim Order or the Final Order, as applicable.
(b) Neither the incurrence of the Obligations, the granting of Liens on the Collateral under this Agreement or the transfer of any interest in property was incurred, granted or transferred, as applicable, with any intent to hinder, delay or defraud any of its respective creditors;
(c) The Interim Order or the Final Order, as applicable, has been entered by the Bankruptcy Court and is in full force and effect, and has not been materially amended or modified except to the extent consented to by the Agent, the Required Revolving Lenders and the Required LC Facility Lenders, or stayed or reversed.
Superpriority Claims and Collateral Security. Section 9:9-1 of the Loan and Security Agreement is hereby amended by adding the following text immediately following the last sentence of such Section 9:9-1: "After the occurrence and continuance of an Event of Default, within one Business Day after notice to the Administrative Agent by counsel to the Debtors or counsel to the Creditors' Committee given in accordance with the provisions set forth in paragraph 9 of the Final Borrowing Order, the Administrative Agent shall deposit into the Carve-Out Account (as defined in the Final Borrowing Order) first proceeds received from a Liquidation in an amount not to exceed the Professional Expense Cap in effect at such time plus any fees required to be paid pursuant to 28 U.S.C. section 1930(a) and any fees and expenses payable by the Borrowers to the Clerk of the Bankruptcy Court."
Superpriority Claims and Collateral Security. Each of the Borrowers hereby represents, warrants and covenants that, except as otherwise expressly provided in this paragraph, the Liabilities, upon the entry of the Interim Borrowing Order and the Final Borrowing Order:
Superpriority Claims and Collateral Security. The Borrower represents, warrants and covenants that, upon the entry by the Bankruptcy Court of the Final Order, all of the Bank Indebtedness:
(a) shall at all times constitute a Superpriority Claim having priority pursuant to Section 364(c)(1) of the Bankruptcy Code, over any claims of any Person, whether now existing or hereafter arising, including any claims under Sections 105(a), 326, 330, 328, 331, 503(a), 503(b), 506(c), 507, 546(c), 546(d), 726, 1 113 and 1 114 of the Bankruptcy Code, subject, as to priority, only to the Carve-Out; and
(b) pursuant to Section 364(c) and Section 364(d) of the Bankruptcy Code shall at all times be secured by a first priority perfected lien in all of the assets, whether now owned or hereafter acquired, of the Borrower and its estate, subject, as to priority, only to the Carve-Out and Statutory Encumbrances securing those valid, perfected, non-avoidable secured claims existing on the Filing Date. The liens securing the Obligations shall not be subject to Section 551 of the Bankruptcy Code. The agreement of Bank to provide post-petition financing to the Borrower will not prohibit Bank from moving in the Bankruptcy Court for any other and further relief which Bank believes in good faith to be reasonably and immediately necessary to protect its rights with respect to the Collateral (including a request for Borrower to abandon any part of the Collateral) or otherwise.
Superpriority Claims and Collateral Security. Each of the Borrowers hereby represents, warrants and covenants that, except as otherwise expressly provided in this paragraph, the Obligations, other than those relating to Specified Existing Letters of Credit, upon the entry of the Interim Order, and all of the Obligations upon the entry of the Final Order:
(a) SHALL AT ALL TIMES CONSTITUTE A SUPERPRIORITY CLAIM HAVING PRIORITY, PURSUANT TO SECTIONS 364(C)(1) OF THE BANKRUPTCY CODE, OVER THE OTHER SUPERPRIORITY CLAIMS GRANTED AS ADEQUATE PROTECTION IN RESPECT OF THE PREPETITION LENDERS AND ANY OTHER CLAIMS OF ANY ENTITY, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS UNDER SECTIONS 503, 506(C), 507, 1113, AND 1114 OF THE BANKRUPTCY CODE, AND
(b) PURSUANT TO SECTIONS 364(C)(2) AND (3) AND 364(D) OF THE BANKRUPTCY CODE AND THE SECURITY DOCUMENTS, SHALL AT ALL TIMES BE SECURED BY A FIRST PRIORITY PERFECTED LIEN IN ALL OF THE ASSETS, WHETHER NOW OWNED OR HEREAFTER ACQUIRED OF THE BORROWERS AND THEIR ESTATES, PURSUANT TO THE TERMS OF THE SECURITY DOCUMENTS. SUCH SUPERPRIORITY CLAIM SHALL BE SUBJECT TO THE CARVE OUT. SUCH LIEN SHALL BE ON AVOIDANCE ACTIONS (OTHER THAN AVOIDANCE ACTIONS AGAINST THE PREPETITION LENDERS AND THE PREPETITION AGENTS) FROM AND AFTER THE ENTRY OF THE FINAL ORDER, BUT SHALL BE SUBJECT TO THE CARVE OUT. OTHERWISE SUCH LIEN SHALL BE SENIOR IN PRIORITY TO THE ADEQUATE PROTECTION LIENS SECURING THE PREPETITION LENDER DEBT AND ALL OTHER LIENS OTHER THAN PERMITTED PRIOR LIENS. THE LIENS SECURING THE OBLIGATIONS SHALL NOT BE SUBJECT TO SECTION 551 OF THE BANKRUPTCY CODE.
Superpriority Claims and Collateral Security. Each of the Borrowers hereby represents, warrants and covenants upon entry of the Interim Order that all Obligations:
(a) subject to the Carve Out, shall at all times constitute a Superpriority Claim having priority, pursuant to Sections 364(c)(1) of the Bankruptcy Code, senior to any claims of any entity, including without limitation, any claims under Sections 503, 507, 1113 and 1114 of the Bankruptcy Code, and
(b) subject to the Carve Out, pursuant to Sections 364(c)(2), (c)(3) and (d) of the Bankruptcy Code shall at all times be secured by:
(i) a first priority perfected Lien in all presently owned and hereafter acquired assets of the Borrowers, wherever located, whether now owned or leased or hereafter acquired or leased or arising, whether realty, personalty or fixtures, including without limitation,
A. Accounts,
B. Books,
Superpriority Claims and Collateral Security. (a) Loan Parties hereby represent, warrant and covenant that, upon the entry by the Bankruptcy Court of the DIP Orders, and to the extent set forth therein and subject to the terms therein:
(i) for all Obligations now existing or hereafter arising and for diminution in value of any Collateral used by Loan Parties pursuant to the Interim Order, this Agreement or otherwise, Agent and Lenders are granted an allowed Superpriority Claim;
(ii) to secure the prompt payment and performance of any and all Obligations of Loan Parties to Agent and each Lender of whatever kind, nature or description, absolute or contingent, now existing or hereafter arising, Agent and each Lender shall have and is hereby granted, effective as of the Petition Date, valid and perfected first priority, security interests and liens in and upon all pre- and post- petition property of Loan Parties and in the case of Loan Parties, its estates, whether existing on the Petition Date or thereafter acquired, including without limitation, (i) pursuant to Section 364(c)(2) of the Bankruptcy Code, property of the Loan Parties that, on or as of the Petition Date is not subject to valid, perfected and non-avoidable liens, (ii) pursuant to Section 364(c) and (d) of the Bankruptcy Code, all of the Loan Parties’ Pre-Petition Collateral, and (iii) pursuant to Section 364(c) of the Bankruptcy Code, all of the Loan Parties’ Collateral. Such security interests and liens shall be senior in all respects to interests of other parties arising out of security interests or liens, if any, in such assets and property existing immediately prior to the Petition Date. The Liens securing the Obligations shall not be subject to Section 551 of the Bankruptcy Code;
(iii) Neither the incurrence of the Obligations, the granting of Liens on the Collateral under this Agreement or the transfer of any interest in property was incurred, granted or transferred, as applicable, with any intent to hinder, delay or defraud any of its respective creditors; and
(iv) The applicable DIP Order, has been entered by the Bankruptcy Court and is in full force and effect, and has not been amended or modified except to the extent consented to by Lender, or stayed, or reversed.
(b) Loan Parties hereby represent, warrant and covenant that, upon the entry by the Bankruptcy Court of the DIP Orders (and to the extent set forth therein), all of the Obligations:
(i) shall at all times constitute a Superpriority Claim; and
(ii) pursuant to Section 364(...
