Common use of Superpriority Nature of Obligations Clause in Contracts

Superpriority Nature of Obligations. All Obligations of Borrowers under the Loan Documents (including the obligation to pay principal, interest, professional fees, costs, charges, commissions and expenses) shall be paid as provided in the Loan Documents when due, without defense, offset, reduction or counterclaim, and shall constitute allowed claims to the full extent thereof against Borrowers arising under Section 364(c)(1) of the Bankruptcy Code, with priority for such claims over any and all administrative expenses (other than the Carve-Outs to the extent provided herein) of the kind specified or ordered pursuant to any provision of the Bankruptcy Code, including Sections 105, 326, 328, 330, 331, 503(b), 506(c), 507(a), 507(b) and 726, provided that the Liens and security interests securing the Obligations shall exclude any proceeds from avoidance actions under Sections 544-550 of the Bankruptcy Code and shall be subject only to: (i) unpaid professional fees and expenses incurred (x) prior to the date of the delivery of a notice from Administrative Agent or Requisite Lenders to Borrowers of the occurrence of an Event of Default and specifying that the limitation on professional fees and expenses referred to in the following clause (ii) is in effect (such notice being the "Carve-Out Notice") or (y) after the earlier of (1) such time as no Event of Default shall be continuing and (2) such time as such Carve-Out Notice shall be rescinded in writing by Administrative Agent at the direction of Requisite Lenders in their sole discretion, and which are allowed by the Bankruptcy Court in the Chapter 11 Cases (either on an interim or final basis), (ii) from and after the date of the delivery of a Carve-Out Notice, professional fees and expenses allowed by the Bankruptcy Court in the Chapter 11 Cases in an aggregate amount (determined without regard to fees and expenses incurred prior to the date of the delivery of such Carve-Out Notice and which are at any time allowed by the Bankruptcy Court either on an interim or final basis) not to exceed $2,000,000 (for any period commencing at the time a Carve-Out Notice shall have been so delivered and ending at the earlier of (1) such subsequent time as no Event of Default shall be continuing and (2) such time as such Carve-Out Notice shall be rescinded in writing by Administrative Agent at the direction of Requisite Lenders in their sole discretion), and (iii) fees payable to the Clerk of the Bankruptcy Court and to the United States Trustee pursuant to 28 U.S.C. ss.1930(a)(6) (collectively, the "Carve-Outs"); provided further, however, that in no event shall there be paid from proceeds of the Loans any fees and expenses incurred in challenging the liens or claims of the Prepetition Lenders, although, subject to the Carve-Outs, the professionals for an official creditors' committee may be paid (to the extent allowed by the Bankruptcy Court) fees and expenses incurred in analyzing such liens or claims in an amount not to exceed $75,000. Subject to the Carve-Outs, the Obligations shall at all times be senior to the rights of Borrowers, any trustee or examiner and any unsecured claims of any creditor or other entity in this and any subsequent case under the Bankruptcy Code. With the exception of the Carve-Outs, no cost or expense of administration or any claims in this case, including those resulting from or incurred after any conversion of this case pursuant to Section 1112 of the Bankruptcy Code shall rank prior to, or on parity with, the claims of the Lenders arising under this Agreement.

Superpriority Nature of Obligations. All Obligations obligations of Borrowers the Debtors under the Loan Documents this Note (including the obligation to pay principal, interest, professional fees, costs, charges, commissions and expenses) shall be paid as provided in the Loan Documents herein when due, without defense, offset, reduction or counterclaim, and shall constitute allowed claims to the full extent thereof against Borrowers the Debtors arising under Section 364(c)(1) of the Bankruptcy Code, with priority for such claims over and senior to any and all other claims, including, without limitation, all administrative expenses (or other than the Carve-Outs to the extent provided herein) of the kind specified or ordered pursuant to any provision of the Bankruptcy Code, including Sections claims arising under sections 105, 326, 328, 330, 331, 503(b), 506(c), 507(a), 507(b) and ), 726, provided that the Liens and security interests securing the Obligations shall exclude any proceeds from avoidance actions under Sections 544-550 1113 or 1114 of the Bankruptcy Code and shall be subject only to: (i) unpaid professional fees and expenses incurred (x) prior to the date of the delivery of a notice from Administrative Agent or Requisite Lenders to Borrowers of the occurrence of an Event of Default and specifying that the limitation on professional fees and expenses referred to in the following clause (ii) is in effect (such notice being the "Carve-Out Notice") or (y) after the earlier of (1) such time as no Event of Default shall be continuing and (2) such time as such Carve-Out Notice shall be rescinded in writing by Administrative Agent at the direction of Requisite Lenders in their sole discretion, and which are allowed by the Bankruptcy Court in the Chapter 11 Cases (either on an interim or final basis), (ii) from and after the date of the delivery of a Carve-Out Notice, professional fees and expenses allowed by the Bankruptcy Court in the Chapter 11 Cases in an aggregate amount (determined without regard to fees and expenses incurred prior to the date of the delivery of such Carve-Out Notice and which are at any time allowed by the Bankruptcy Court either on an interim or final basis) not to exceed $2,000,000 (for any period commencing at the time a Carve-Out Notice shall have been so delivered and ending at the earlier of (1) such subsequent time as no Event of Default shall be continuing and (2) such time as such Carve-Out Notice shall be rescinded in writing by Administrative Agent at the direction of Requisite Lenders in their sole discretion), and (iii) fees payable to the Clerk of the Bankruptcy Court and to the United States Trustee pursuant to 28 U.S.C. ss.1930(a)(6) (collectively, the "Carve-Outs")Code; provided furtherprovided, however, that in no event notwithstanding the foregoing, the DIP Super-Priority Claim shall there be paid from proceeds of the Loans any fees junior, subordinate, and expenses incurred in challenging the liens or claims of the Prepetition Lenders, although, subject to the Adequate Protection Claim, the Prepetition Senior Secured Debt, the Senior Lender Prepetition Liens, the Carve-OutsOut, and the professionals for an official creditors' committee may be paid Adequate Protection Lien (to all as defined in the extent allowed by Interim Order and the Bankruptcy Court) fees and expenses incurred in analyzing such liens or claims in an amount not to exceed $75,000Final Borrowing Order). Subject to the Carve-OutsOut, the Obligations shall Adequate Protection Liens (as defined in the Interim Order and the Final Borrowing Order), the Prepetition Senior Secured Debt (as defined in the Interim Order and the Final Borrowing Order) and the Adequate Protection Claim (as defined in the Interim Order and the Final Borrowing Order), the DIP Super-Priority Claim will at all times be senior to the rights of Borrowers, any trustee or examiner and any unsecured claims of any creditor or other entity in this and any subsequent case under the Bankruptcy Code. With the exception of the Carve-OutsOut, the Adequate Protection Liens, the Prepetition Senior Secured Debt, and the Adequate Protection Claim, no cost or expense of administration or any claims in this case, including those resulting from or incurred after any conversion of this case pursuant to Section 1112 of the Bankruptcy Code shall rank prior to, or on parity with, the claims of the Lenders arising under this AgreementDIP Super-Priority Claims.

Superpriority Nature of Obligations. All Obligations of Borrowers ----------------------------------- under the Loan Financing Documents (including the obligation to pay principal, interest, professional fees, costs, charges, commissions and expenses) shall be paid as provided in the Loan Documents when due, without defense, offset, reduction or counterclaim, and shall constitute allowed administrative expense claims to in the full extent thereof Chapter 11 Cases against Borrowers arising with priority under Section 364(c)(1) of the Bankruptcy Code, with priority for such claims Code over any and all other administrative expenses (other than the Carve-Outs to the extent provided herein) of the kind specified or ordered pursuant to any provision of the Bankruptcy Code, including including, but not limited to, Sections 105, 326, 328, 330, 331, 503(b), 506(c), 507(a), 507(b) and 726726 of the Bankruptcy Code; provided that, provided that the superpriority administrative claim status of the Obligations, and the Liens and security interests securing the Obligations shall exclude any proceeds from avoidance actions under Sections 544-550 of the Bankruptcy Code and same, shall be subject only toto the "Carve-Out", consisting of: (i) unpaid professional fees and expenses incurred (x) prior to the date of the delivery of a notice from the Administrative Agent or Requisite Required Lenders to the Borrowers of the occurrence of an Event of Default and specifying that the limitation on professional fees and expenses referred to in the following clause (ii) is in effect (such notice being the "Carve-Out Notice") or (y) after the earlier of (1) such time as no Event of Default shall be continuing and or (2) such time as such Carve-Out Notice shall be rescinded in writing by the Administrative Agent at the direction of Requisite Required Lenders in their sole discretion, to the extent such fees and which expenses described in this clause (i) are allowed by the Bankruptcy Court in the Chapter 11 Cases (either including on an interim or basis and subject to final basisallowance), (ii) after and from and after the date of the delivery of a Carve-Out Notice, professional fees and expenses allowed by the Bankruptcy Court in the Chapter 11 Cases (including on an interim basis and subject to final allowance) in an aggregate amount (determined without regard to fees and expenses incurred prior to the date of the delivery of such Carve-Out Notice and which are at any time allowed by the Bankruptcy Court either (including on an interim or basis and subject to final basisallowance)) not to exceed $2,000,000 (for any period commencing at the time a Carve-Out Notice shall have been so delivered and ending at the earlier of (1) such subsequent time as no Event of Default shall be continuing and (2) such time as such Carve-Out Notice shall be rescinded in writing by the Administrative Agent at the direction of Requisite Required Lenders in their sole discretion), and (iii) fees payable to the Clerk of the Bankruptcy Court and to the United States Trustee pursuant to 28 U.S.C. ss.1930(a)(6) (collectively, the "Carve-Outs"S)1930(a)(6); provided further, however, that in no event shall there be paid from proceeds of the Loans any fees and expenses incurred in challenging the liens or claims of the Prepetition Lenders, although, subject to the Carve-Outs, the professionals for an official creditors' committee may be paid (to the extent allowed by the Bankruptcy Court) fees and expenses incurred in analyzing such liens or claims in an amount not to exceed $75,000. Subject to the Carve-Outs, the Obligations shall at all times be senior to the rights of Borrowers, any trustee or examiner and any unsecured claims of any creditor or other entity in this and any subsequent case under the Bankruptcy Code. With the exception of the Carve-Outs, no cost or expense of administration or any claims in this case, including those resulting from or incurred after any conversion of this case pursuant to Section 1112 of the Bankruptcy Code shall rank prior to, or on parity with, the claims of the Lenders arising under this Agreement.

Superpriority Nature of Obligations. All Obligations of Borrowers ----------------------------------- under the Loan Financing Documents (including the obligation to pay principal, interest, professional fees, costs, charges, commissions and expenses) shall be paid as provided in the Loan Documents when due, without defense, offset, reduction or counterclaim, and shall constitute allowed administrative expense claims to in the full extent thereof Chapter 11 Cases against Borrowers arising with priority under Section 364(c)(1) of the Bankruptcy Code, with priority for such claims Code over any and all other administrative expenses (other than the Carve-Outs to the extent provided herein) of the kind specified or ordered pursuant to any provision of the Bankruptcy Code, including including, but not limited to, Sections 105, 326, 328, 330, 331, 503(b), 506(c), 507(a), 507(b) and 726726 of the Bankruptcy Code; provided that, provided that the superpriority -------- administrative claim status of the Obligations, Liens and security interests securing the Obligations shall exclude any proceeds from avoidance actions under Sections 544-550 of the Bankruptcy Code and same shall be subject only to: (i) unpaid professional fees and expenses incurred (x) prior to the date of the delivery of a notice from the Administrative Agent or Requisite Required Lenders to the Borrowers of the occurrence of an Event of Default and specifying that the limitation on professional fees and expenses referred to in the following clause (ii) is in effect (such notice being the "Carve-Out Notice") or (y) after the earlier of (1) such time as no Event of Default shall be continuing and or (2) such time as such Carve-Out Notice shall be rescinded in writing by the Administrative Agent at the direction of Requisite Required Lenders in their sole discretion, and which are allowed by the Bankruptcy Court in the Chapter 11 Cases (either on an interim or final basis), (ii) after and from and after the date of the delivery of a Carve-Out Notice, professional fees and expenses allowed by the Bankruptcy Court in the Chapter 11 Cases in an aggregate amount (determined without regard to fees and expenses incurred prior to the date of the delivery of such Carve-Out Notice and which are at any time allowed by the Bankruptcy Court either on an interim or final basis) not to exceed $2,000,000 (for any period commencing at the time a Carve-Out Notice shall have been so delivered and ending at the earlier of (1) such subsequent time as no Event of Default shall be continuing and (2) such time as such Carve-Out Notice shall be rescinded in writing by the Administrative Agent at the direction of Requisite Required Lenders in their sole discretion), and (iii) fees payable to the Clerk of the Bankruptcy Court and to the United States Trustee pursuant to 28 U.S.C. ss.1930(a)(6) (collectively, the "Carve-Outs"S)1930(a)(6); provided further, however, that in no event shall there be paid from proceeds of the Loans any fees and expenses incurred in challenging the liens or claims of the Prepetition Lenders, although, subject to the Carve-Outs, the professionals for an official creditors' committee may be paid (to the extent allowed by the Bankruptcy Court) fees and expenses incurred in analyzing such liens or claims in an amount not to exceed $75,000. Subject to the Carve-Outs, the Obligations shall at all times be senior to the rights of Borrowers, any trustee or examiner and any unsecured claims of any creditor or other entity in this and any subsequent case under the Bankruptcy Code. With the exception of the Carve-Outs, no cost or expense of administration or any claims in this case, including those resulting from or incurred after any conversion of this case pursuant to Section 1112 of the Bankruptcy Code shall rank prior to, or on parity with, the claims of the Lenders arising under this Agreement.