Common use of Priority and Liens Clause in Contracts

Priority and Liens. (a) Subject to Section 2.20(c), each of the Loan Parties hereby covenants and agrees that, upon the entry of the DIP Order, its obligations hereunder and under the Loan Documents: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP Order; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (that is subject to the terms of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, non-voidable liens in existence at the time of commencement of the Cases or to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases or that is subject to valid Liens in existence at the time of the commencement of the Cases that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on all of the property of such Loan Parties that is subject to the existing liens which secure the Existing Second Lien Debt (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens, subject in each case to the Carve-Out and as set forth in the DIP Order and the Intercreditor Agreement.

Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties hereby covenants and agrees that, upon pursuant to the entry of the DIP OrderOrders, its obligations hereunder and under the Loan DocumentsDocuments and under the Secured Agreements: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesCases (excluding a claim on Avoidance Actions, subject other than pursuant to any limitations set forth in Section 549 of the DIP OrderBankruptcy Code, but including the proceeds of Avoidance Actions (provided that such proceeds shall be available to satisfy such Superpriority Claims)); (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (that is subject to the terms of the New DIP Order and the Intercreditor Agreement and DIP OrderAgreement) on all of the property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, non-voidable liens in existence at the time of commencement of the Cases or to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (limited, in the case of voting equity interests of CFC’s, ’s to 65% of the such voting equity interests), and on all of its cash maintained in the L/C Cash Deposit Account and any investment of the funds contained therein, provided that amounts in the L/C Cash Deposit Account or the Secured Agreements Cash Deposit Account (as defined in the Final Order) shall not be subject to the Carve-Out); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases or that is subject to valid Liens in existence at the time of the commencement of the Cases that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on all of the property of such Loan Parties that is subject to the existing liens which secure the Existing Second Lien Debt (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens, subject in each case to the Carve-Out and as set forth in the DIP Order and the Intercreditor Agreement.and

Priority and Liens. (a) Subject to Section 2.20(cThe Loan Parties hereby covenant, represent and warrant that, upon entry of the Interim Order (and the Final Order, as applicable), each the Obligations of the Loan Parties hereby covenants and agrees that, upon the entry of the DIP Order, its obligations hereunder and under the other Loan Documents: , (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesClaims, subject to any limitations set forth in the DIP Order; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (that is subject to the terms on all Collateral, including without limitation, all cash maintained in any Cash Collateral account for Letters of Credit and any direct investments of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquiredfunds contained therein, that is otherwise not subject to valid, perfected, non-voidable liens in existence at the time of commencement encumbered by a valid and perfected Lien as of the Cases or to validPetition Date, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, Collateral that is subject to valid, perfected and non-voidable avoidable Liens in existence at on the time of the commencement of the Cases Petition Date or that is subject to valid Liens in existence at the time of the commencement of the Cases that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to secure the Prepetition Credit Facility Obligations) (but not granted) thereafter to the existing Liens that secure obligations extent such post-Petition Date perfection in respect of a pre-Petition Date claim is expressly permitted under the Existing Second Lien DebtBankruptcy Code, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on upon all of the property of such Loan Parties Collateral (x) that is subject to a valid Lien or security interest in effect on the existing liens which Petition Date to secure the Existing Second Prepetition Credit Facility Obligations, (y) that is subject to a Lien Debt (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases Petition Date to provide adequate protection Liens in respect of any of the Primed LiensPrepetition Credit Facility Obligations or (z) that is presently subject to a valid Lien in effect on the Petition Date that is junior to the Liens that secure the Prepetition Credit Facility Obligations, subject and subordinate in each case with respect to subclauses (i) through (iv) above, only to the Carve-Carve Out, provided that (i) following the Termination Date amounts in any Letter of Credit Cash Collateral account shall not be subject to the Carve Out and as set forth (ii) in the DIP Order event of a liquidation of the Debtors’ estates the amount of the Carve Out shall be funded into a segregated account prior to the making of the distributions. For purposes hereof, the “Carve Out” shall mean (A) all fees required to be paid to the Clerk of the Bankruptcy Court and to the Intercreditor AgreementOffice of the United States Trustee under section 1930(a) of title 28 of the United States Code, (B) fees and expenses incurred by a trustee under section 726(b) of the Bankruptcy Code, and (C) following receipt of notice by the Administrative Agent after the occurrence and during the continuance of an Event of Default, the payment of accrued and unpaid professional fees and expenses incurred by the Debtors and any statutory committee appointed in the Cases and allowed by the Court, in an aggregate amount not exceeding $5 million (plus all unpaid professional fees and expenses allowed by the Bankruptcy Court that were incurred prior to the giving of notice by the Administrative Agent of the occurrence of such Event of Default), provided that (x) the Carve Out shall not be available to pay any such professional fees and expenses incurred in connection with the initiation or prosecution of any Prohibited Claims or the initiation or prosecution of any claims, causes of action, adversary proceedings or other litigation against the Administrative Agent, the Lenders, the Prepetition Credit Facility Lenders or the Prepetition Credit Facility Agent and (y) so long as an Event of Default shall not have occurred and be continuing, the Carve Out shall not be reduced by the payment of fees and expenses allowed by Bankrupty Court and payable under Sections 328, 330 and 331 of the Bankruptcy Code. Notwithstanding anything herein to the contrary, the Carve Out shall not be used to commence or prosecute (but up to $50,000 may be used to investigate) any Prohibited Claim.

Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties (other than any Loan Party that is not a Debtor) hereby covenants and agrees that, that upon the entry of an Interim Order (and when applicable, the DIP Final Order, ) its obligations hereunder and under the Loan DocumentsDocuments and under the US Secured Agreements: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesCases (but excluding a claim on Avoidance Actions and, subject prior to any limitations set forth in entry of the DIP Final Order, the proceeds of Avoidance Actions); (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (that is subject to the terms of the Intercreditor Agreement and DIP OrderAgreement) on all of the property of such US Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, non-voidable liens in existence at the time of commencement of the Cases or to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (limited, in the case of voting equity interests of CFC’s, to 65% of the such voting equity interests), and on all of its cash maintained in the L/C Cash Deposit Account and any investment of the funds contained therein, provided that amounts in the L/C Cash Deposit Account shall not be subject to the Carve-Out; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of such US Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases or that is subject to valid Liens in existence at the time of the commencement of the Cases that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1364(d)(l) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on all of the property of such US Loan Parties that is subject to the existing liens (the “Primed Liens”) which secure the Existing Second Lien Debt (collectively, the “Primed Liens”)Debt, all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed LiensLiens (i) through (iv) above, subject in each case to the Carve-Out and as set forth in the DIP Order and the Intercreditor AgreementOrders.

Priority and Liens. (a) Subject a)The Loan Parties hereby covenant, represent and warrant that, upon entry of the Final Order and subject to Section 2.20(c)the terms thereof, each the Obligations of the Loan Parties hereby covenants and agrees that, upon the entry of the DIP Order, its obligations hereunder and under the other Loan Documents: , (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesClaims, subject to any limitations set forth in the DIP Order; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (on all Collateral that is subject to the terms otherwise not encumbered by a valid perfected and non-avoidable Lien as of the Intercreditor Agreement Petition Date or a valid and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, non-voidable liens in existence at the time of commencement of the Cases or to valid, non-voidable liens perfected Lien in existence at the time of such commencement that are is perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code Code, excluding (limited, in the case of voting equity interests of CFC’s, 65x) 35% percent of the total outstanding voting equity interests); Capital Stock of each new or existing Foreign Subsidiary and (y) avoidance actions but including the proceeds thereof, (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, Collateral that is subject to valid, perfected and non-voidable avoidable Liens in existence at on the time of the commencement of the Cases Petition Date or that is subject to valid Liens in existence at the time of the commencement of the Cases that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to secure the Prepetition Obligations) (but not granted) thereafter to the existing Liens that secure obligations extent such post-Petition Date perfection in respect of a pre-Petition Date claim is expressly permitted under the Existing Second Lien DebtBankruptcy Code, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on upon all of the property of such Loan Parties Collateral (x) that is subject to a valid Lien or security interest in effect on the existing liens which Petition Date to secure the Existing Second Prepetition Obligations, (y) that is subject to a Lien Debt granted after the Petition Date to provide adequate protection in respect of the Prepetition Obligations or (z) that is subject to a valid Lien in effect on the Petition Date that is junior to the Liens that secure the Prepetition Obligations, subject and subordinate in each case with respect to subclauses (i) through (iv) above, only to the Carve Out. For purposes hereof, the “Carve Out” shall mean the sum of (A) all fees required to be paid to the Clerk of the Bankruptcy Court and to the Office of the United States Trustee under section 1930(a) of title 28 of the United States Code, (B) the costs of administrative expenses not to exceed $50,000 in the aggregate that are permitted to be incurred by any Chapter 7 trustee pursuant to any order of the Bankruptcy Court following any conversion of any of the Cases pursuant to section 1112 of the Bankruptcy Code, and (C) at any time after the first Business Day following delivery of a Carve-Out Trigger Notice, to the extent allowed at any time, whether before or after delivery of a Carve-Out Trigger Notice, whether by interim order, procedural order or otherwise, all unpaid fees, costs and expenses (collectively, the “Primed LiensProfessional Fees”) incurred by persons or firms retained by the Debtors pursuant to Section 327, 328 or 363 of the Bankruptcy Code and any official committee of unsecured creditors appointed in the Cases pursuant to Section 1103 of the Bankruptcy Code (collectively, the “Professional Persons”), the payment of all Professional Fees incurred by the Professional Persons at any time after the first Business Day following delivery of which Primed Liens shall be primed a Carve-Out Trigger Notice in an aggregate amount not exceeding $15,000,000 (the “Carve-Out Cap”) (plus all unpaid Professional Fees allowed at any time by and made subject and subordinate to (the Bankruptcy Court, whether before or after delivery of a Carve-Out Trigger Notice, whether by interim order, procedural order or otherwise, that were incurred by the Professional Persons on or prior to the extent set forth in first Business Day following the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor delivery of the Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens, subject in each case to the Carve-Out Trigger Notice), provided that (x) the Carve Out shall not be available to pay any such Professional Fees incurred in connection with the initiation or prosecution of any Prohibited Claims or the initiation or prosecution of any claims, causes of action, adversary proceedings or other litigation against the Administrative Agent, the Lenders, the Prepetition Lenders or the Prepetition Agent and as set forth (y) the Carve Out shall not be reduced by the payment of Professional Fees incurred prior to the first Business Day following delivery of a Carve-Out Trigger Notice without regard to when such amounts are allowed by the Bankruptcy Court. Notwithstanding anything herein to the contrary, the Carve Out shall not be used to commence or prosecute any Prohibited Claim. Upon delivery of a Carve-Out Trigger Notice or the commencement of a liquidation, the Borrower shall deposit the amount prior to making any distributions of the Carve Out in a segregated account solely for payment of Professional Fees that are within the DIP Order and the Intercreditor AgreementCarve Out.

Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties hereby covenants and agrees that, that upon the entry of of, and subject to, an Interim Order (and when applicable, the DIP Final Order) and subject to the Carve Out in all respects, its obligations hereunder and under the Loan DocumentsObligations: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed DIP Superpriority Claim Claims in the Cases, subject to any limitations set forth which DIP Superpriority Claims in respect of the DIP OrderCredit Facility shall rank pari passu with each other; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (that is subject to the terms of the Intercreditor Guarantee and Collateral Agreement and DIP Orderthe Orders but which will, in any event, be subject to the Carve Out) on (x) the DIP Proceeds Account (including all cash and cash equivalents held therein, and proceeds disbursed in contravention of this Agreement) and (y) Avoidance Actions, and the property proceeds of such Loan PartiesAvoidance Actions that, whether now existing or hereafter acquiredin the case of this clause (y), that is are not subject to valid, perfected, perfected and non-voidable liens in existence at avoidable pre-petition Liens (this clause (ii), the time of commencement of the Cases or to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests“DIP Priority Collateral”); and (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of Collateral (as defined in the Prepetition Credit Agreements), other than Excluded Assets, to the extent such Loan Parties, whether now existing or hereafter acquired, that Collateral is subject to a valid, perfected and non-voidable Liens in existence at avoidable Lien securing the time of Prepetition Credit Agreements (the commencement of the Cases or that is subject to valid Liens in existence at the time of the commencement of the Cases that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens assets described in the following clause clauses (iv)); ii) and (iviii) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on all of the property of such Loan Parties that is subject to the existing liens which secure the Existing Second Lien Debt (collectivelyabove, the “Primed LiensDIP Collateral”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens, subject in each case to the Carve-Out and as set forth in the DIP Order and the Intercreditor Agreement.

Priority and Liens. (a) Subject to Section 2.20(c)Each Borrower covenants, each of the Loan Parties hereby covenants represents and agrees warrants that, upon the entry of the DIP Final Order, its obligations hereunder and under the Loan Documents: Obligations (i) pursuant to Section section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim administrative expense claims in the CasesCases having priority over all administrative expenses of the kind specified in sections 105, subject to any limitations set forth in 326, 328, 503(b), 506(c), 507(a), 507(b) and 726 of the DIP Order; Bankruptcy Code, (ii) pursuant to Section section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (that is subject to the terms on all unencumbered pre-petition and post-petition property of the Intercreditor Agreement and DIP Order) on all Borrowers (other than the portion of the property capital stock of such Loan Parties, whether now existing or hereafter acquired, each Foreign Subsidiary that is not subject to valida Lien securing the Existing Agreements) and on all cash maintained in the Cash Collateral Account, perfected, non-voidable liens in existence at the time of commencement Concentration Account and each Depository Account and any direct investments of the Cases or to validfunds contained therein, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all pre-petition and post-petition property of such Loan Parties, whether now existing or hereafter acquired, the Borrowers (other than the property that is subject to valid, perfected and non-voidable existing Liens in existence at that presently secure the time obligations of the commencement Borrowers and their respective Subsidiaries under the Existing Agreements, as to which the Lien in favor of the Cases or Junior Lenders will be as described in clause (iv) below) that is subject to valid and perfected Liens in existence at on the time of Petition Date or to valid Liens in existence on the commencement of the Cases Petition Date that are perfected subsequent to such commencement the Petition Date as permitted by Section section 546(b) of the Bankruptcy Code (other than certain property that is subject or to the existing Permitted Liens, junior to such valid and perfected Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on all property of the property Borrowers, including without limitation, Accounts, instruments, contract rights, chattel paper, general intangibles (including, without limitation, causes of such action), Inventory, equipment, fixtures, documents of title, intellectual property, rights under license agreements, real estate (whether owned or leased) and all proceeds thereof, 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 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 Loan Parties that is Documents are subject or become subject subsequent to the existing liens which secure Petition 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 Second Lien Debt (collectivelyLender Claim. The Junior Lenders agree that so long as no Default or Event of Default shall have occurred, the “Primed Liens”), all of which Primed Liens Borrowers shall be primed by permitted to pay compensation and made subject reimbursement of expenses allowed and subordinate to (to payable under 11 U.S.C. section 330 and 11 U.S.C. section 331, as the extent set forth same may be due and payable, and such payments shall not reduce the Carve-Out; provided that following the Termination Date amounts in the DIP Order) the perfected first priority senior Liens to Cash Collateral Account shall not be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens, subject in each case to the Carve-Out and as set forth in the DIP Order and the Intercreditor AgreementOut.

Priority and Liens. (a) Subject to the limitations and exclusions set forth in Section 2.20(c)9.01(e)(iii) hereof, each of the Loan Parties Borrower and each Guarantor hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Interim Order, its obligations the Obligations of the Borrower and such Guarantor hereunder and under the Loan Documents: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (on all unencumbered tangible and intangible property of the Borrower and such Guarantor and on all cash maintained in the L/C Cash Collateral Account and any investments of the funds contained therein, including any such property that is subject to valid and perfected Liens in existence on the terms Petition Date, which Liens are thereafter released or otherwise extinguished in connection with the satisfaction of the Intercreditor Agreement and DIP Order) on all of the property of obligations secured by such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, non-voidable liens in existence at the time of commencement of the Cases or to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of Liens (excluding any avoidance actions under the Bankruptcy Code (limited, in but including the case of voting equity interests of CFC’s, 65% of the voting equity interestsproceeds therefrom)); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all real, personal and mixed property of the Borrower and such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases or Guarantor that is subject to valid Liens and perfected liens in existence at on the time of the commencement of the Cases that are perfected subsequent Petition Date, junior to such commencement as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv))valid and perfected Liens; and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code), shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on upon all tangible and intangible property of the property of Borrower and such Loan Parties Guarantor that is subject to the existing liens which presently secure the Existing Second Lien Debt (collectivelyPre-Petition Secured Indebtedness, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens, subject subordinated in each case with respect to clauses (i) through (iv) above, only to the Carve-Out. Except for the Carve-Out having priority over the Obligations, the Superpriority Claims shall at all times be senior to the rights of the Borrower, each Guarantor, any chapter 11 trustee and, subject to section 726 of the Bankruptcy Code, any chapter 7 trustee, or any other creditor (including, without limitation, post-petition counterparties and as set forth other post-petition creditors) in the DIP Order and Cases or any subsequent proceedings under the Intercreditor AgreementBankruptcy Code, including, without limitation, any chapter 7 cases if any of the Borrower’s or the Guarantor’s cases are converted to cases under chapter 7 of the Bankruptcy Code.

Priority and Liens. (a) Subject to Section 2.20(c)The Borrowers hereby covenant, represent and warrant that, upon entry of the Interim Order or Final Order, as applicable, the Obligations of each of the Loan Parties hereby covenants and agrees that, upon the entry of the DIP Order, its obligations Borrowers hereunder and under the other Loan Documents: , (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesSuper-Priority Claims, subject to any limitations set forth in the DIP Order; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (that is subject to the terms of the Intercreditor Agreement and DIP Order) on all of the unencumbered Collateral (including without limitation, (x) real and tangible personal property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, non-voidable liens in existence at the time of commencement of the Cases or Liens which may be avoided pursuant to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code Code, but only to the extent so avoided and (limited, y) to the extent set forth in the case of voting equity interests of CFC’sFinal Order, 65% of any avoidance actions arising under the voting equity interestsBankruptcy Code); , (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property Collateral (other than the Primed Assets, as to which the Lien in favor of such Loan Parties, whether now existing or hereafter acquired, the DIP Lenders will be as described in clause (iv) of this sentence) that is subject to valida Permitted Lien, including without limitation, valid and perfected and non-voidable Liens in existence at on the time of the commencement of the Cases Petition Date or that is subject to valid Liens in existence at the time of the commencement of the Cases that are perfected subsequent to such commencement as permitted by Section 546(b(but not granted) of the Bankruptcy Code (other than certain property that is subject thereafter to the existing Liens that secure obligations extent such post-Petition Date perfection in respect of a pre-Petition Date claim is expressly permitted under the Existing Second Lien DebtBankruptcy Code, which liens junior to such Permitted Liens, provided that the Liens granted in favor of the DIP Lenders shall be primed by senior to any Permitted Lien which is expressly stated herein to be junior to the liens described Liens in favor of the following clause (iv)); DIP Lenders, and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on all of the property of such Loan Parties that is subject to the existing liens which secure the Existing Second Lien Debt (collectivelyPrimed Assets, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate in each case with respect to subclauses (to i) through (iv) above, only to, following the extent set forth in occurrence and during the DIP Ordercontinuance of an Event of Default, (x) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor such valid and enforceable liens of record as of the Agent shall also prime any Liens granted after date of the commencement of the Chapter 11 Cases as are listed on Schedule P-2, (y) the liens and replacement liens granted to provide adequate protection Liens in respect of any of the Primed Liens, subject in each case to Pre-Petition Senior Lenders and (z) the Carve-Out Out. Without prejudice to any DIP Lender’s right to object to the interim or final allowance of any compensation or reimbursement of expenses, and as set forth in subject to the Agreed Budget, the DIP Order Lenders agree that so long as no Event of Default shall have occurred and be continuing, the Borrowers shall be permitted to pay compensation and reimbursement of expenses allowed and payable under Sections 330 and 331 of the Bankruptcy Code and pursuant to any order of the Bankruptcy Court, as the same may be due and payable, and the Intercreditor Agreementamounts so paid shall not reduce the Carve-Out.

Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties Borrower and each Guarantor hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Interim Order, its obligations the Obligations of the Borrower and such Guarantor hereunder and under the Loan Documents: (i) pursuant to Section section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (ii) pursuant to Section section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (on all unencumbered tangible and intangible property of the Borrower and such Guarantor and on all cash maintained in the L/C Cash Collateral Account and any investments of the funds contained therein, including any such property that is subject to valid and perfected Liens in existence on the terms Petition Date, which Liens are thereafter released or otherwise extinguished in connection with the satisfaction of the Intercreditor Agreement and DIP Order) on all of the property of obligations secured by such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, non-voidable liens in existence at the time of commencement of the Cases or to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of Liens (excluding any avoidance actions under the Bankruptcy Code (limited, in or the case of voting equity interests of CFC’s, 65% of the voting equity interestsproceeds therefrom); (iii) pursuant to Section section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all real, personal and mixed property of the Borrower and such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases or Guarantor that is subject to valid and perfected Liens in existence at on the time of the commencement of the Cases that are perfected subsequent Petition Date, junior to such commencement as permitted by Section 546(b) of the Bankruptcy Code valid and perfected Liens (other than certain property that is subject to Liens securing the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); Pre-Petition Secured Indebtedness) and (iv) pursuant to Section section 364(d)(1) of the Bankruptcy Code), shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on upon all tangible and intangible property of the property of Borrower and such Loan Parties Guarantor that is subject to the existing liens which presently secure the Existing Second Lien Debt (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens, subject in each case to the CarvePre-Out and as set forth in the DIP Order and the Intercreditor Agreement.Petition Secured Indebtedness; provided that

Priority and Liens. (a1) Subject to Section 2.20(c)The Borrower hereby covenants, each of the Loan Parties hereby covenants represents and agrees warrants that, upon the entry of the DIP Interim Order (and the Final Order, its as applicable), the obligations of the Borrower hereunder and under the Loan other Credit Documents: , (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall shall, to the maximum extent permitted by law, at all times constitute an allowed Superpriority Claim in the CasesSuper-priority Claims, subject to any limitations set forth in the DIP Order; (ii) pursuant to Section Sections 364(c)(2) and (3) of the Bankruptcy Code, shall at all times be secured by a validperfected lien on, bindingand security interest in, continuingall present and after acquired property of the Borrower (excluding however, enforceable 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 a first priority Lien (that is subject lien with respect to the terms all property of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, Borrower that is not subject to valid, perfected, non-voidable any valid and perfected liens in existence at the time of commencement as of the Cases or Filing Date and shall be junior in priority to validvalid and perfected liens, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement if any, as permitted by Section 546(b) of the Bankruptcy Code Filing Date (limited, other than those described in the case of voting equity interests of CFC’s, 65% of the voting equity interestsclause (iii) below); and (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases or that is subject to valid Liens in existence at the time of the commencement of the Cases that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to ------------ Section 364(d)(1) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien lien on all of the property of the Borrower that secures the Prepetition Revolving Credit Obligations and the Prepetition Note Purchase Obligations, subject and subordinate in each case 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 payment (as the same may be due and payable) of professional fees and disbursements allowed by order of the Bankruptcy Court and incurred by the Borrower and not to exceed $1,000,000 (plus any unpaid professional fees and disbursements previously incurred, accrued or invoiced prior to such Loan Parties that is subject Default or Event of Default, to the existing liens which secure extent subsequently awarded), (y) the Existing Second Lien Debt payment of unpaid fees pursuant to 28 U.S.C. Section 1930 and any fees payable to the Clerk of the Bankruptcy Court, and (z) up to $650,000 for payment of trust fund taxes (collectively, the “Primed Liens”"Carve-Out"), all ; provided that --------- -------- the Borrower makes no representation as to the perfection of which Primed Liens shall be primed by and made subject and subordinate to (any Lien on any Proprietary Rights Collateral to the extent set forth such Proprietary Rights Collateral is registered, or for which registration has been applied, in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor a jurisdiction outside of the Agent 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 also prime any Liens granted after have occurred and be continuing, the commencement Borrower shall be permitted to pay compensation and reimbursement of expenses allowed and payable under Sections 330 and 331 of the Cases to provide adequate protection Liens in respect of any Bankruptcy Code and orders of the Primed LiensBankruptcy Court, subject in each case to as the same may be payable, and the amounts so paid shall not reduce the Carve-Out and as set forth in the DIP Order and the Intercreditor AgreementOut.

Priority and Liens. (a) Subject to Section 2.20(c)Each Borrower covenants, each of the Loan Parties hereby covenants represents and agrees warrants that, upon the entry of the DIP Final Order, its obligations hereunder and under the Loan Documents: Obligations (i) pursuant to Section section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim administrative expense claims in the CasesCases having priority over all administrative expenses of the kind specified in sections 105, subject to any limitations set forth in 326, 328, 503(b), 506(c), 507(a), 507(b) and 726 of the DIP Order; Bankruptcy Code, (ii) pursuant to Section section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (that is subject to the terms on all unencumbered prepetition and postpetition property of the Intercreditor Agreement and DIP Order) on all Borrowers (other than the portion of the property capital stock of such Loan Parties, whether now existing or hereafter acquired, each Foreign Subsidiary that is not subject to valida Lien securing the Existing Agreements) and on all cash maintained in the Cash Collateral Account, perfected, non-voidable liens in existence at the time of commencement Concentration Account and each Depository Account and any direct investments of the Cases or to validfunds contained therein, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all prepetition and postpetition property of such Loan Parties, whether now existing or hereafter acquired, the Borrowers (other than the property that is subject to valid, perfected and non-voidable existing Liens in existence at that presently secure the time obligations of the commencement Borrowers and their respective Subsidiaries under the Existing Agreements, as to which the Lien in favor of the Cases or Agent and the Lenders will be as described in clause (iv) below) that is subject to valid and perfected Liens in existence at on the time of Petition Date or to valid Liens in existence on the commencement of the Cases Petition Date that are perfected subsequent to such commencement the Petition Date as permitted by Section section 546(b) of the Bankruptcy Code (other than certain property that is subject or to the existing Permitted Liens, junior to such valid and perfected Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on all property of the property Borrowers, including without limitation, Accounts, instruments, contract rights, chattel paper, general intangibles (including, without limitation, causes of such Loan Parties that is subject action), Inventory, equipment, fixtures, documents of title, intellectual property, rights under license agreements, real estate (whether owned or leased) and all proceeds thereof, upon which a Lien has been granted (a) under the Existing Agreements to the existing liens which secure the Borrowers' and their respective Subsidiaries' prepetition Indebtedness under the Existing Second Lien Debt Agreements and (collectivelyb) in connection with Adequate Protection Obligations, the “Primed Liens”), in all of which Primed Liens shall be primed by and made cases subject and subordinate only to (to the extent set forth in the DIP Order1) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens, subject in each case to the Carve-Out and (2) any Liens in existence on the Petition Date to which the Liens described in clauses (a) and (b) above are subject or become subject subsequent to the Petition Date as set forth 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 DIP Order and Cash Collateral Account shall not be subject to the Intercreditor AgreementCarve-Out.

Priority and Liens. (a) Subject to Section 2.20(cThe Loan Parties hereby covenant, represent and warrant that, upon entry of the Interim Order (or the Final Order, as applicable), each the Obligations of the Loan Parties hereby covenants and agrees that, upon the entry of the DIP Order, its obligations hereunder and under the other Loan Documents: Documents and the Interim Order (or the Final Order, as applicable), (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesClaims, subject to any limitations set forth in the DIP Order; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (that is subject to the terms on, and security interest in, all present and after-acquired property of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, that is Debtors not subject to a valid, perfected, perfected and non-voidable liens avoidable lien or security interest in existence at on the time of commencement of the Cases Petition Date or to valid, non-voidable liens a valid lien in existence at on the time of such commencement Petition Date that are is perfected subsequent to such commencement the Petition Date as permitted by Bankruptcy Code Section 546(b) (but excluding the Borrower’s and the Guarantors’ rights in respect of avoidance actions under the Bankruptcy Code (limited, in and the case of voting equity interests of CFC’s, 65% of the voting equity interestsproceeds thereof); and (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a validperfected junior Lien on, bindingand security interest in, continuing, enforceable perfected second Lien upon all present and after-acquired property of such Loan Parties, whether now existing or hereafter acquired, the Debtors that is otherwise subject to a valid, perfected and non-voidable Liens avoidable lien or security interest in existence at on the time of Petition Date or a valid lien in existence on the commencement of the Cases or Petition Date that is subject to valid Liens in existence at the time of the commencement of the Cases that are perfected subsequent to such commencement the Petition Date as permitted by Bankruptcy Code Section 546(b), subject and subordinate in each case with respect to subclauses (i) through (iii) above, only to, in the event of the occurrence and during the continuance of an Event of Default, the payment of (A) unpaid fees and expenses of professionals retained by the Debtors or any official committee (each a “Committee”) appointed in accordance with Section 1102 of the Bankruptcy Code and the reasonable expenses of members of the Committee of unsecured creditors or otherwise that are (I) incurred prior to the occurrence and continuance of an Event of Default and (II) allowed by the Bankruptcy Court, at any time, under sections 105(a), 330 and 331 of the Bankruptcy Code, (B) unpaid fees and expenses of professionals retained by the Debtors or any Committee and the reasonable expenses of members of the Committee of unsecured creditors up to an aggregate amount not to exceed $25,000,000 that (I) are incurred after the occurrence and during the continuance of an Event of Default and (II) allowed by the Bankruptcy Court, at any time, under Sections 105(a), 330 and 331 of the Bankruptcy Code or otherwise, (C) in the event of a conversion of the Cases, the reasonable fees and expenses of a chapter 7 trustee under section 726(b) of the Bankruptcy Code in an amount not exceeding $2,000,000, and (other than certain property that is subject D) fees required to be paid to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1) Clerk of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on all Court and to the Office of the property of such Loan Parties that is subject to the existing liens which secure the Existing Second Lien Debt United States Trustee under 28 U.S.C. §1930(a) (collectively, the “Primed LiensCarve-Out”), all provided, however that the Carve-Out shall not include any fees or expenses incurred in challenging the Liens or Superpriority Claims of which Primed Liens shall be primed by the Collateral Agent, Administrative Agents or Lenders granted under this Agreement, the Security and made subject Pledge Agreement and subordinate to the Orders (to the extent set forth it being understood that, in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor event of a liquidation of the Agent shall also prime any Liens granted after Borrower’s and the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens, subject in each case other Debtors’ estates an amount equal to the Carve-Out and as set forth shall be reserved from the proceeds of such liquidation, or from cash held in the DIP Order estates at such time, and held in a segregated account prior to the Intercreditor making of the distributions); provided, further, however, no Loan Party shall be required to pledge to the Collateral Agent (i) in excess of 65% of the voting Capital Stock of its direct Foreign Subsidiaries or any of the Capital Stock or interests of its indirect Foreign Subsidiaries if adverse tax consequences would result to the Borrower from such pledge, (ii) the Capital Stock of Calpine Pasadena Cogeneration, Inc. and Calpine Texas Cogeneration, Inc., to the extent the pledge thereof is prohibited by the documents governing the leveraged lease transaction under which Pasadena Cogeneration L.P. is the facility lessee, and such entities are not Debtors, (iii) the Capital Stock of Androscoggin Energy, LLC, Bethpage Exxxxx Xxxxxx 0, XXX, Xxxxxxx Xxxxxx Energy Finance ULC, Calpine Canada Energy Ltd., Calpine Merchant Services Company, Inc., Calpine Newark, LLC, Calpine Pxxxxx, LLC and CPN Insurance Corporation or (iv) the stock of any Subsidiary that is not a Debtor owned by any Subsidiary that becomes a Debtor after the Closing Date to the extent such pledge would constitute a default under project documents, result in a right of refusal, call or put options being activated, or to the extent such entity is a debtor in another bankruptcy case in another jurisdiction, or insurance company or such grant of a security interest is prohibited by, or constitutes a breach or default under or results in the termination of or requires any consent not obtained under, any contract, license, agreement, instrument, other document or any applicable shareholder or similar agreement relating thereto or conflicts with any applicable law. For clarity, the Administrative Agents and Lenders agree that so long as no Event of Default shall have occurred and be continuing, the Debtors shall be permitted to pay compensation and reimbursement of fees and expenses allowed and payable under Bankruptcy Code Sections 105(a), 330, and 331, as the same may be due and payable, and neither such amounts nor any retainers paid to the professionals retained by the Debtors or any Committee, nor any fees, expenses, indemnities or other amounts paid to any Agent, Lender or their respective attorneys and agents under this Agreement, shall reduce the Carve-Out, provided, that nothing herein shall be construed to impair the ability of any party to object to any of the fees, expenses, reimbursement or compensation described in clauses (ii) and (iii) above, and provided, further, that cash or other amounts on deposit in the L/C Cash Collateral Account shall not be subject to the Carve-Out.

Priority and Liens. (a) Subject to the limitations and exclusions set forth in Section 2.20(c)9.01(e)(iii) hereof, each of the Loan Parties Borrower and each Guarantor hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Interim Order, its obligations the Obligations of the Borrower and such Guarantor hereunder and under the Loan Documents: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (on all unencumbered tangible and intangible property of the Borrower and such Guarantor and on all cash maintained in the L/C Cash Collateral Account and any investments of the funds contained therein, including any such property that is subject to valid and perfected Liens in existence on the terms Petition Date, which Liens are thereafter released or otherwise extinguished in connection with the satisfaction of the Intercreditor Agreement and DIP Order) on all of the property of obligations secured by such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, non-voidable liens in existence at the time of commencement of the Cases or to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of Liens (excluding any avoidance actions under the Bankruptcy Code (limited, in but including the case of voting equity interests of CFC’s, 65% of the voting equity interestsproceeds therefrom)); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all real, personal and mixed property of the Borrower and such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases or Guarantor that is subject to valid Liens and perfected liens in existence at on the time of the commencement of the Cases that are perfected subsequent Petition Date, junior to such commencement as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv))valid and perfected Liens; and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code), shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on upon all tangible and intangible property of the property of Borrower and such Loan Parties Guarantor that is subject to the existing liens which presently secure the Existing Second Lien Debt (collectivelyPre-Petition Secured Indebtedness, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens, subject subordinated in each case with respect to clauses (i) through (iv) above, only to the Carve-Out. Except for the Carve-Out having priority over the Obligations, the Superpriority Claims shall at all times be senior to the rights of the Borrower, each Guarantor, any chapter 11 trustee and, subject to section 726 of the Bankruptcy Code, any chapter 7 trustee, or any other creditor (including, without limitation, post-petition counterparties and as set forth other post-petition creditors) in the DIP Order and Cases or any subsequent proceedings under the Intercreditor AgreementBankruptcy Code, including, without limitation, any chapter 7 cases if any of the Borrower's or the Guarantor's cases are converted to cases under chapter 7 of the Bankruptcy Code.

Priority and Liens. (a) Subject to Section 2.20(c)The Borrower hereby covenants, each of the Loan Parties hereby covenants represents and agrees warrants that, upon the entry of the DIP Order, its obligations hereunder and under the Loan Documents: Interim Order (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, the Obligations of the Borrower hereunder and under the Loan Documents and in respect of Indebtedness permitted by Section 6.03(iv) shall at all times constitute an allowed Superpriority Claim administrative expense claims in the CasesCase having priority over all administrative expenses of the kind specified in Sections 503(b) or 507(b) of the Bankruptcy Code, subject to any limitations set forth in the DIP Order; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, the Obligations of the Borrower hereunder and under the Loan Documents and in respect of Indebtedness permitted by Section 6.03(iv) shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (that is subject to the terms on all unencumbered property of the Intercreditor Agreement Borrower and DIP Order) on all cash maintained in the Letter of Credit Account and any direct investments of the property of such Loan Partiesfunds contained therein, whether now existing or hereafter acquired, that is not subject to valid, perfected, non-voidable liens in existence at the time of commencement of the Cases or to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, the Obligations of the Borrower hereunder and under the Loan Documents and in respect of Indebtedness permitted by Section 6.03 shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases or Borrower that is subject to valid and perfected Liens in existence at on the time of the commencement of the Cases that are perfected subsequent Filing Date, junior to such commencement valid and perfected Liens (except as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described otherwise provided in the following clause (ivclause)); , and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, the Obligations of the Borrower hereunder and under the Loan Documents and in respect of Indebtedness permitted by Section 6.03(iv) shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien lien on all any property of the property of such Loan Parties that is subject Borrower to which any liens attached prior to the existing liens which secure the Existing Second Lien Debt (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens Filing Date in respect of any of the Primed LiensJudgment, subject in each case only to (x) in the event of the occurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both, the payment of allowed and unpaid professional fees and disbursements incurred by the Borrower and any statutory committees appointed in the Case in an aggregate amount not in excess of $3,000,000 and (y) the payment of unpaid fees pursuant to 28 U.S.C. Section 1930 (collectively, the "CARVE-OUT"), PROVIDED that following the Termination Date amounts in the Letter of Credit Account shall not be subject to the Carve-Out Out. The Banks agree that so long as no Event of Default or event which with the giving of notice or lapse of time or both would constitute an Event of Default shall have occurred and be continuing, the Borrower shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. Section 330 and 11 U.S.C. Section 331, as set forth in the DIP Order same may be due and payable, and the Intercreditor Agreementsame shall not reduce the Carve-Out.

Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties Borrowers hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Final Order, its obligations the Obligations of the Borrowers hereunder and under the Loan Documents: Documents and in respect of Indebtedness permitted by Section 6.3(v): (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (on all unencumbered property of the Borrowers and on all cash maintained in the Letter of Credit Account and any direct investments of the funds contained therein, provided that is following the Termination Date, amounts in the Letter of Credit Account shall not be subject to the terms of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, nonCarve-voidable liens in existence at the time of commencement of the Cases or to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests)Out; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, the Borrowers that is subject to valid, valid and perfected and non-voidable Liens in existence at on the time of the commencement of the Cases Filing Date or that is subject to valid Liens in existence at on the time of the commencement of the Cases Filing Date that are perfected subsequent to such commencement the Filing Date as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv))Code; and in addition, (iv) pursuant to Section 364(d)(1) of the Bankruptcy CodeCode and other than as expressly set forth in the Final Order, shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on all of the property of such Loan Parties the Borrowers (including, without limitation, inventory, receivables, rights under license agreements, and property, plant and equipment) that is subject to the existing liens which secure (x) the Existing Second Lien Debt obligations of the Parent Borrower and certain of the Subsidiary Borrowers under or in connection with the Pre-Petition Credit Agreement, and (y) other obligations or indebtedness of the Borrowers pursuant to other agreements in an aggregate amount in excess of $2,500,000 (collectively, the “"Primed Liens”"), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Administrative Agent, which senior priming Liens in favor of the Administrative Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens but shall not prime Liens, if any, to the extent such Liens secure obligations (other than obligations under the Pre-Petition Credit Agreement) in an aggregate amount less than or equal to $2,500,000; subject in each case only to (x) in the event of the occurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both (a "Default"), the payment of allowed and unpaid professional fees and disbursements incurred by the Borrowers and any statutory committees appointed in the Cases in an aggregate amount not in excess of $3,000,000 (plus the amount set forth in the most recent Borrowing Base Certificate delivered by the Borrowers to the Administrative Agent of then unpaid professional fees and expenses incurred prior to the occurrence of a Default or an Event of Default to the extent that such unpaid fees and expenses are subsequently allowed by the Bankruptcy Court), and (y) the payment of fees pursuant to 28 U.S.C. ss. 1930 and to the Clerk of the Bankruptcy Court (collectively, the "Carve-Out"), provided that no portion of the Carve-Out shall be utilized for the payment of professional fees and disbursements incurred in connection with any challenge to the amount, extent, priority, validity, perfection or enforcement of the Indebtedness of the Borrowers owed with respect to the parties primed by the priming Liens or to the collateral securing such Indebtedness or any other action against such parties. Amounts in the Letter of Credit Account shall not be subject to the Carve-Out Out. By execution hereof, the Borrowers hereby consent to the priming Liens referenced in clause (iv) above. Notwithstanding the foregoing, so long as no Default or Event of Default shall have occurred and be continuing, the Borrowers shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. ss.ss. 328, 330 and 331, as set forth in the DIP Order same may be due and payable, and any xxxxxnsation and expenses previously paid, or accrued but unpaid, prior to the Intercreditor Agreementoccurrence of such Default or Event of Default shall not reduce the Carve-Out.

Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties Borrowers hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Final Order, its obligations the Obligations of the Borrowers hereunder and under the Loan Documents: Documents and in respect of Indebtedness permitted by Section 6.3(v): (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (on all unencumbered property of the Borrowers and on all cash maintained in the Letter of Credit Account and any direct investments of the funds contained therein, provided that is following the Termination Date, amounts in the Letter of Credit Account shall not be subject to the terms of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, nonCarve-voidable liens in existence at the time of commencement of the Cases or to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests)Out; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, the Borrowers that is subject to valid, valid and perfected and non-voidable Liens in existence at on the time of the commencement of the Cases Filing Date or that is subject to valid Liens in existence at on the time of the commencement of the Cases Filing Date that are perfected subsequent to such commencement the Filing Date as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv))Code; and in addition, (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on all of the property of such Loan Parties the Borrowers (including, without limitation, inventory, receivables, rights under license agreements, and property, plant and equipment) that is subject to the existing liens which secure (x) the Existing Second Lien Debt obligations of the Parent Borrower and certain of the Subsidiary Borrowers under or in connection with the Pre-Petition Credit Agreement, and (y) other obligations or indebtedness of the Borrowers pursuant to other agreements in an aggregate amount in excess of $2,500,000 (collectively, the “"Primed Liens”"), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Administrative Agent, which senior priming Liens in favor of the Administrative Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens but shall not prime Liens, if any, to the extent such Liens secure obligations (other than obligations under the Pre-Petition Credit Agreement) in an aggregate amount less than or equal to $2,500,000; subject in each case only to (x) in the event of the occurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both (a "Default"), the payment of allowed and unpaid professional fees and disbursements incurred by the Borrowers and any statutory committees appointed in the Cases in an aggregate amount not in excess of $3,000,000 (plus the amount set forth in the most recent Borrowing Base Certificate delivered by the Borrowers to the Administrative Agent of then unpaid professional fees and expenses incurred prior to the occurrence of a Default or an Event of Default to the extent that such unpaid fees and expenses are subsequently allowed by the Bankruptcy Court), and (y) the payment of fees pursuant to 28 U.S.C. ss. 1930 and to the Clerk of the Bankruptcy Court (collectively, the "Carve-Out"), provided that no portion of the Carve-Out shall be utilized for the payment of professional fees and disbursements incurred in connection with any challenge to the amount, extent, priority, validity, perfection or enforcement of the Indebtedness of the Borrowers owed with respect to the parties primed by the priming Liens or to the collateral securing such Indebtedness or any other action against such parties. Amounts in the Letter of Credit Account shall not be subject to the Carve-Out Out. By execution hereof, the Borrowers hereby consent to the priming Liens referenced in clause (iv) above. Notwithstanding the foregoing, so long as no Default or Event of Default shall have occurred and be continuing, the Borrowers shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. ss.ss. 328, 330 and 331, as set forth in the DIP Order same may be due and payable, and xxx compensation and expenses previously paid, or accrued but unpaid, prior to the Intercreditor Agreementoccurrence of such Default or Event of Default shall not reduce the Carve-Out.

Priority and Liens. (a) Subject to Section 2.20(c)The Debtors hereby covenant, each of the Loan Parties hereby covenants represent and agrees warrant that, upon the entry of the DIP Interim Order (and the Final Order, its obligations as applicable), the Obligations of the Debtors hereunder and under the other Loan Documents: , each Cash Management Document, each Hedging Contract and the obligations of the Debtors pursuant to Article XI, (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesClaims, subject to any limitations set forth in the DIP Order; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (on all Collateral that is subject otherwise not encumbered by a valid and perfected Lien as of the Petition Date or a valid Lien perfected (but not granted) thereafter to the terms extent such post-Petition Date perfection in respect of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, that a pre-Petition Date claim is not subject to valid, perfected, non-voidable liens in existence at the time of commencement of the Cases or to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as expressly permitted by under Section 546(b) of the Bankruptcy Code (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); and (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, Collateral that is subject to valid, perfected and non-voidable avoidable Liens in existence at on the time of the commencement of the Cases Petition Date or that is subject to valid Liens perfected (but not granted) thereafter to the extent such post-Petition Date perfection in existence at the time respect of the commencement of the Cases that are perfected subsequent to such commencement as a pre-Petition Date claim is expressly permitted by under Section 546(b) of the Bankruptcy Code, subject, in each case, 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 (the “Professional Fees”) incurred at any time after the first business day following delivery of written notice from the Administrative Agent to the U.S. Trustee and each of the lead counsel for the Debtors and the Committee (as defined below) (the “Trigger Notice”) of the occurrence of an Event of Default (to the extent allowed by the Bankruptcy Court at any time) by the Loan Parties and any statutory committees appointed in the Cases (each a “Committee”) in an aggregate amount not in excess of $1,500,000 (the “Carve Out Cap”), (y) all unpaid Professional Fees incurred by the Loan Parties and any Committee at any time on or prior to the first business day following delivery of the Trigger Notice to the extent allowed by the Bankruptcy Court at any time, and the payment of fees pursuant to 28 U.S.C. §1930 and (z) fees and expenses up to $250,000 incurred by a trustee under Section 726(b) of the Bankruptcy Code (other than certain property that is subject without regard to the existing notice set forth in (x) or (y) above) (the amounts described in clauses (x), (y) and (z) collectively, the “Carve Out”). Notwithstanding the foregoing, (i) the Carve Out shall not be available to pay any professional fees and expenses incurred in connection with the initiation or prosecution of any claims, causes of action, adversary proceedings or other litigation against the Administrative Agent, the Lenders or the administrative agent under the Prepetition Credit Agreement, (ii) so long as an Event of Default shall not have occurred and be continuing, the Debtors shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. § 330 and § 331, as the same may be due and payable, and the same shall not reduce the Carve Out and (iii) the Carve Out Cap shall not be reduced by the payment of Professional Fees incurred on or prior to the first business day following delivery of a Trigger Notice without regard to when such amounts are allowed by the Bankruptcy Court. Upon the commencement of a liquidation, the Debtors are directed to deposit an amount equal to the unpaid Professional Fees, including the Carve Out Cap, prior to making any distributions to creditors in a segregated account solely for payment of Professional Fees that are within the Carve Out. Nothing herein shall be construed as a waiver of the right of the Administrative Agent or any Lender to object to the allowance of any Professional Fees and disbursements. As to all Collateral, including without limitation, all cash, Cash Equivalents and Real Property the title to which is held by any Debtor, or the possession of which is held by any Debtor in the form of a leasehold interest, each Debtor hereby grants a security interest in, hypothecates, mortgages, pledges to the Administrative Agent, for the benefit of the Lenders and the other holders of the Obligations, all of the right, title and interest of the Borrower and such Debtor in all of such Collateral, including without limitation, all cash, Cash Equivalents and owned Real Property and in all such leasehold interests, together in each case with all of the right, title and interest of the Borrower and such Debtor in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof, all general intangibles relating thereto and all proceeds thereof. The Borrower and each Debtor acknowledges that, pursuant to the Orders, the Liens granted in favor of the Administrative Agent (on behalf of the Lenders) in all of the Collateral shall be perfected without the recordation of any Uniform Commercial Code financing statements, notices of Lien or other instruments of mortgage or assignment. The Borrower and each Guarantor further agrees that secure obligations (a) the Administrative Agent shall have the rights and remedies set forth in Article IX and Article XII and the Orders in respect of the Existing Second Lien Debt, which liens shall be primed Collateral and (b) if requested by the liens described in Administrative Agent, the following clause (iv)); Borrower and (iv) pursuant to Section 364(d)(1) each of the Bankruptcy Codeother Debtors shall enter into separate security agreements, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien pledge agreements and fee mortgages with respect to such Collateral on all of the property of such Loan Parties that is subject terms reasonably satisfactory to the existing liens which secure the Existing Second Lien Debt (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Administrative Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens, subject in each case to the Carve-Out and as set forth in the DIP Order and the Intercreditor Agreement.

Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties Borrowers hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Final Order, its obligations the Obligations of the Borrowers hereunder and under the Loan Documents: Documents and in respect of Indebtedness permitted by Section 6.3(v): (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (on all unencumbered property of the Borrowers and on all cash maintained in the Letter of Credit Account and any direct investments of the funds contained therein, provided that is following the Termination Date, amounts in the Letter of Credit Account shall not be subject to the terms of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, nonCarve-voidable liens in existence at the time of commencement of the Cases or to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests)Out; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, the Borrowers that is subject to valid, valid and perfected and non-voidable Liens in existence at on the time of the commencement of the Cases Filing Date or that is subject to valid Liens in existence at on the time of the commencement of the Cases Filing Date that are perfected subsequent to such commencement the Filing Date as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv))Code; and in addition, (iv) pursuant to Section 364(d)(1) of the Bankruptcy CodeCode and other than as expressly set forth in the Final Order, shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on all of the property of such Loan Parties the Borrowers (including, without limitation, inventory, receivables, rights under license agreements, and property, plant and equipment) that is subject to the existing liens which secure (x) the Existing Second Lien Debt obligations of the Parent Borrower and certain of the Subsidiary Borrowers under or in connection with the Pre-Petition Credit Agreement, and (y) other obligations or indebtedness of the Borrowers pursuant to other agreements in an aggregate amount in excess of $2,500,000 (collectively, the “"Primed Liens”"), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Administrative Agent, which senior priming Liens in favor of the Administrative Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens but shall not prime Liens, if any, to the extent such Liens secure obligations (other than obligations under the Pre-Petition Credit Agreement) in an aggregate amount less than or equal to $2,500,000; subject in each case only to (x) in the event of the occurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both (a "Default"), the payment of allowed and unpaid professional fees and disbursements incurred by the Borrowers and any statutory committees appointed in the Cases in an aggregate amount not in excess of $3,000,000 (plus the amount set forth in the most recent Borrowing Base Certificate delivered by the Borrowers to the Administrative Agent of then unpaid professional fees and expenses incurred prior to the occurrence of a Default or an Event of Default to the extent that such unpaid fees and expenses are subsequently allowed by the Bankruptcy Court), and (y) the payment of fees pursuant to 28 U.S.C. ss. 1930 and to the Clerk of the Bankruptcy Court (collectively, the "Carve-Out"), provided that no portion of the Carve-Out shall be utilized for the payment of professional fees and disbursements incurred in connection with any challenge to the amount, extent, priority, validity, perfection or enforcement of the Indebtedness of the Borrowers owed with respect to the parties primed by the priming Liens or to the collateral securing such Indebtedness or any other action against such parties. Amounts in the Letter of Credit Account shall not be subject to the Carve-Out Out. By execution hereof, the Borrowers hereby consent to the priming Liens referenced in clause (iv) above. Notwithstanding the foregoing, so long as no Default or Event of Default shall have occurred and be continuing, the Borrowers shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. ss.ss. 328, 330 and 331, as set forth in the DIP Order same may be due and payable, and any xxxxensation and expenses previously paid, or accrued but unpaid, prior to the Intercreditor Agreementoccurrence of such Default or Event of Default shall not reduce the Carve-Out.

Priority and Liens. (a) Subject to Section 2.20(c)The Debtors hereby covenant, each of the Loan Parties hereby covenants represent and agrees warrant that, upon the entry of the DIP Interim Order (and the Final Order, its obligations as applicable), the Obligations of the Debtors hereunder and under the other Loan Documents: Documents (including the obligations of the Debtors under the Guarantee and Collateral Agreement), (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim Claims in the Cases, subject to any limitations set forth in the DIP Order; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (on all Collateral that is subject otherwise not encumbered by a valid, perfected and non-avoidable Lien as of the Petition Date or a valid Lien perfected (but not granted) thereafter to the terms extent such post-Petition Date perfection in respect of a pre-Petition Date claim is expressly permitted under the Intercreditor Agreement Bankruptcy Code, excluding claims and DIP Order) on all causes of the property of such Loan Partiesaction under Sections 502(d), whether now existing or hereafter acquired544, that is not subject to valid545, perfected547, non-voidable liens in existence at the time of commencement of the Cases or to valid548, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) 549 and 550 of the Bankruptcy Code and the proceeds therefrom (limitedit being understood that, in the case of voting equity interests of CFC’snotwithstanding such exclusion, 65% upon entry of the voting equity interestsFinal Order, to the extent approved by the Bankruptcy Court, such Lien shall attach to any proceeds thereof); , (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, Collateral that is subject to (A) valid, perfected and non-voidable avoidable Liens (other than to secure the Debtors’ Prepetition Obligations and Liens that are junior to the Liens securing the Debtors’ Prepetition Obligations) in existence at on the time of the commencement of the Cases Petition Date or that is subject to valid Liens perfected (but not granted) thereafter to the extent such post-Petition Date perfection in existence at the time respect of the commencement of the Cases that are perfected subsequent to such commencement as a pre-Petition Date claim is expressly permitted by Section 546(b) of under the Bankruptcy Code and (B) other than certain property that is subject to the existing Liens that secure obligations as provided in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); ) below, post-Petition Date Liens permitted hereunder, and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on upon all of the property of such Loan Parties Collateral (x) that is subject to a valid Lien or security interest in effect on the existing liens which Petition Date to secure the Existing Second Debtors’ Prepetition Obligations, (y) that is subject to a Lien Debt (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases Petition Date to provide adequate protection Liens in respect of any of the Primed LiensDebtors’ Prepetition Obligations or (z) that is subject to a valid Lien in effect on the Petition Date that is junior to the Liens that secure the Debtors’ Prepetition Obligations, subject and subordinate in each case with respect to subclauses (i) through (iv) above, only to the Carve-Out and Carve Out. For purposes hereof, the “Carve Out” shall be defined as set forth in the DIP Interim Order and the Intercreditor AgreementFinal Order, as applicable.

Priority and Liens. (a) Subject to Section 2.20(cThe Loan Parties hereby covenant, represent and warrant that, upon entry of the Interim Order (and the Final Order), each the Obligations of the Loan Parties hereby covenants and agrees that, upon the entry of the DIP Order, its obligations hereunder and under the other Loan Documents: Documents and the Orders, (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, Code shall at all times constitute an allowed be entitled to joint and several Superpriority Claim status in the Cases, subject to any limitations set forth in the DIP Order; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, Code shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (lien on all property of the Debtors that is subject to the terms of the Intercreditor Agreement Released Liens and DIP Order) on all of the other property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, perfected and non-voidable avoidable liens as of the Closing Date, (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code shall be secured by a perfected junior lien on all property of the Debtors that is subject to valid, perfected and non-avoidable liens in existence at the time of the commencement of the Cases or to valid, non-voidable valid liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases or that is subject to valid Liens in existence at the time of the commencement of the Cases that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Released Liens that secure obligations in respect of the Existing Second Lien Debt, and which liens shall property will be primed by covered under the liens described in granted to the following clause Administrative Agent and the Lenders under paragraph (ivii) above)); , and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, Code shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien lien on all of the property of such Loan Parties the Debtors that is subject to the existing liens which secure that are junior to the Existing Second Lien Debt (collectively, the “Primed Released Liens”), all of which existing liens (the "Primed Liens Liens") shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens liens to be granted to the AgentAdministrative Agent and the Lenders, which senior priming Liens liens in favor of the Administrative Agent and the Lenders shall also prime any Liens liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any Permitted Liens but shall not prime liens, if any, to which the Primed Liens were subject at the time of the Primed Lienscommencement of the Cases, subject and subordinate in each case with respect to subclauses (i) through (iv) above, only to the Permitted Liens and the fees and expenses subject to the Administrative Expense Carve-Out and as set forth in the DIP Order and payments subject to the Intercreditor AgreementEmployee Plans Carve-Out.

Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties hereby covenants and agrees that, upon pursuant to the entry of the DIP OrderOrders, its obligations hereunder and under the Loan DocumentsDocuments and under the Secured Agreements: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesCases (excluding a claim on Avoidance Actions, subject other than pursuant to any limitations set forth in Section 549 of the DIP OrderBankruptcy Code, but including the proceeds of Avoidance Actions (provided that such proceeds shall be available to satisfy such Superpriority Claims)); (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (that is subject to the terms of the New DIP Order and the Intercreditor Agreement and DIP OrderAgreement) on all of the property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, non-voidable liens in existence at the time of commencement of the Cases or to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (limited, in the case of voting equity interests of CFC’s, ’s to 65% of the such voting equity interests), and on all of its cash maintained in the L/C Cash Deposit Account and any investment of the funds contained therein, provided that amounts in the L/C Cash Deposit Account or the Secured Agreements Cash Deposit Account (as defined in the Final Order) shall not be subject to the Carve-Out); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases or that is subject to valid Liens in existence at the time of the commencement of the Cases that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1364(d)(l) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on all of the property of such Loan Parties that is subject to the existing liens (the “Primed Liens”) which secure the Existing Second Lien Debt (collectively, the “Primed Liens”)Debt, all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP OrderOrders) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens, subject in each case to the Carve-Out and as set forth in the DIP Order Orders and the Intercreditor Agreement.

Priority and Liens. (a) Subject to Section 2.20(c)The Borrowers hereby covenant, each represent and warrant that the Obligations of the Loan Parties hereby covenants and agrees that, upon the entry of the DIP Order, its obligations Borrowers hereunder and under the Loan Documents: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (that is subject to the terms of the Intercreditor Agreement and DIP OrderAgreement) on all property of the property of such Loan PartiesBorrowers, whether now existing or hereafter acquired, that is not subject to valid, perfected, non-voidable liens in existence at the time of commencement of the Cases or to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (limitedCode, and on all cash maintained in the case Letter of voting equity interests of CFC’s, 65% Credit Account and any investment of the voting equity interests)funds contained therein, provided that amounts in the Letter of Credit Account shall not be subject to the Carve-Out; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of such Loan Partiesthe Borrowers, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases (including the perfected liens on the stock of certain Subsidiaries of the Parent (the “Stock Liens”) in favor of (x) the trustees for the holders of Indebtedness of the Parent under the Indentures, and (y) the holders of obligations under the Prepetition Credit Agreement and the Surety Bonds) or that is subject to valid Liens in existence at the time of the commencement of the Cases that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of under the Existing Second Lien DebtPrepetition Agreements, which liens shall be primed by the liens described in the following clause (iv)); and in addition, (iv) pursuant to Section 364(d)(1364(d)(l) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on all of the property of such Loan Parties the Borrowers that is subject to the existing liens which secure the Existing Second Lien Debt (collectively, the “Primed Liens”), it being understood that the Stock Liens shall not be primed or constitute part of the Primed Liens) which secure (A) on a first priority basis, the Tranche C Loans, and (B) on a second priority and pari passu basis, (x) approximately $1,650,000,000 of principal amount of indebtedness (plus related interest, fees, costs and charges) owed to the lenders under the Prepetition Credit Agreement, (y) the obligations under the collateral trust, security and/or pledge agreements executed in connection with the Prepetition Agreements and (z) the obligations of the Borrowers in connection with the Surety Bonds and (C) other prepetition obligations or indebtedness (of whatever nature or type) of the Borrowers in an aggregate amount in excess of $20,000,000, all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Administrative Agent, which senior priming Liens in favor of the Administrative Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens but shall not prime Liens, if any, to the extent such Liens secure prepetition obligations or indebtedness (other than obligations under the Prepetition Agreements) in an aggregate amount less than or equal to $20,000,000, subject in each case only to (A) in the event of the occurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both, the payment of accrued and unpaid professional fees and disbursements incurred by the Borrowers and any statutory committees appointed in the Cases, and allowed by the Bankruptcy Court, in an aggregate amount not in excess of $5,000,000 and (B) the payment of fees pursuant to 28 U.S.C. § 1930 and to the Clerk of the Bankruptcy Court (collectively, the “Carve-Out”), provided that no portion of the Carve-Out shall be utilized for the payment of professional fees and expenses incurred, directly or indirectly, in respect of, arising from or relating to, the initiation (other than investigation) or prosecution of any action for preferences, fraudulent conveyances, other avoidance power claims or any other claims or causes of action against the Administrative Agent, the Lenders, the Hedging Parties (as defined in the Approval Order), the administrative agent under either the Existing DIP Credit Agreement or the JPM DIP Credit Agreement, the Existing DIP Lenders, the JPM DIP Lenders, the administrative agent under the Prepetition Credit Agreement, the lenders party to the Prepetition Credit Agreement, the issuers of the Surety Bonds or the holders of the Tranche C Loans. Amounts in the Letter of Credit Account shall not be subject to the Carve-Out Out. By execution hereof, the Borrowers hereby consent to the priming Liens referenced in clause (iv) above. Notwithstanding the foregoing, so long as no Event of Default or event which with the giving of notice or lapse of time or both would constitute an Event of Default shall have occurred and be continuing, the Borrowers shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. § 330 and 11 U.S.C. § 331, as set forth in the DIP Order same may be due and payable, and any compensation and expenses previously paid, or accrued but unpaid, prior to the Intercreditor Agreementoccurrence of such Event of Default shall not reduce the Carve-Out.

Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties Borrower and each Guarantor hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP OrderRefinancing Orders, its obligations the Obligations of the Borrower and such Guarantor hereunder and under the Loan Documents: (i) pursuant to Section section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (ii) pursuant to Section section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (on all unencumbered tangible and intangible property of the Borrower and such Guarantor and on all cash maintained in the L/C Cash Collateral Account and any investments of the funds contained therein, including any such property that is subject to valid and perfected Liens in existence on the terms Petition Date, which Liens are thereafter released or otherwise extinguished in connection with the satisfaction of the Intercreditor Agreement and DIP Order) on all of the property of obligations secured by such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, non-voidable liens in existence at the time of commencement of the Cases or to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of Liens (excluding any avoidance actions under the Bankruptcy Code (limited, in but including the case of voting equity interests of CFC’s, 65% of the voting equity interestsproceeds therefrom)); (iii) pursuant to Section section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all real, personal and mixed property of the Borrower and such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases or Guarantor that is subject to valid and perfected Liens in existence at on the time of the commencement of the Cases that are perfected subsequent Petition Date, junior to such commencement as permitted by Section 546(b) of the Bankruptcy Code valid and perfected Liens (other than certain property that is subject to Liens securing the existing Liens that secure obligations in respect of the Existing Second Lien DebtUnrolled Pre-Petition Secured Indebtedness), which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section section 364(d)(1) of the Bankruptcy Code), shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on upon all tangible and intangible property of the property of Borrower and such Loan Parties Guarantor that is subject to the existing liens which secure the Existing Second Lien Debt (collectively, Unrolled Pre-Petition Secured Indebtedness; provided that the “Primed Liens”), all of which Primed Liens foregoing shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens, subject in each case all respects to the Carve-Out and as set forth in the DIP Order and the Intercreditor AgreementOut.

Priority and Liens. (a) Subject to Section 2.20(c), The Borrower and each of the Loan Parties Guarantors hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Interim Order, its obligations the Obligations of the Borrower and the Guarantors hereunder and under the Loan Documents: Documents and in respect of Indebtedness permitted by Section 6.03(iv): (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (that is subject to the terms on all unencumbered property of the Intercreditor Agreement Borrower and DIP Order) the Guarantors and on all cash maintained in the Letter of Credit Account and any investments of the property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, non-voidable liens in existence at the time of commencement of the Cases or to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests)funds contained therein; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, the Borrower and the Guarantors (other than the property that is subject to valid, perfected and non-voidable existing Liens in existence at that presently secure the time obligations of the commencement Borrower under the Pre-Petition Credit Agreement, as to which the Lien in favor of the Cases or Agent and the DIP Lenders will be as described in clause (iv) of this sentence) that is subject to valid and perfected liens in existence on the Petition Date or to valid Liens in existence at on the time of the commencement of the Cases Petition Date that are perfected subsequent to such commencement the Petition Date as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject or to the existing Liens that secure obligations in respect of the Existing Second Lien DebtPermitted Liens, which liens shall be primed by the liens described in the following clause (iv))junior to such valid and perfected Liens; and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on all property of the property Borrower and the Guarantors (including without limitation, accounts receivable, contracts, documents, inventory, equipment, general intangibles, instruments, interests in leaseholds, intellectual property, rights under license agreements and the capital stock of such Loan Parties all direct and indirect Subsidiaries of the Borrower and, in each case, the proceeds thereof) that is subject to the existing liens which that presently secure the Existing Second Lien Debt Borrower's pre-petition Indebtedness under the Pre-Petition Credit Agreement (collectively, but subject to any Liens in existence on the “Primed Liens”), all of Petition Date to which Primed the Liens shall be being primed by and made hereby are subject and subordinate to (or become subject subsequent to the extent set forth in the DIP OrderPetition Date as permitted by Section 546(b) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime Bankruptcy Code) and any Liens granted after the commencement of the Cases Petition Date to provide adequate protection Liens in respect of any the Pre-Petition Credit Agreement, subject only to (x) in the event of the Primed Liensoccurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both, the payment of allowed and unpaid professional fees and disbursements incurred by the Borrower, the Guarantors and any statutory committees appointed in the Cases in an aggregate amount not in excess of $1,500,000 (plus all unpaid professional fees and disbursements incurred prior to the occurrence of an Event of Default to the extent allowed by the Bankruptcy Court)(2) and (y) the payment of unpaid fees pursuant to 28 U.S.C. Section 1930 and to the Clerk of the Bankruptcy Court (collectively, the "CARVE-OUT"), PROVIDED that amounts in the Letter of Credit Account and any investment of the funds contained therein shall not be subject in each case to the Carve-Out Out, and PROVIDED FURTHER, that, except as set forth otherwise provided in the DIP Order Orders, no portion of the Carve-Out shall be utilized for the ------------------------ (2) Note: Borrowing Base will reflect deduction for these amounts. payment of professional fees and disbursements incurred in connection with any investigation of or challenge to the amount, extent, priority, validity, perfection or enforcement of the indebtedness of the Borrower and the Intercreditor AgreementGuarantors owing to the Pre-Petition Lenders or to the collateral securing such indebtedness, and PROVIDED FURTHER that, as to proceeds of causes of action to recover preferences, fraudulent transfers or other avoidance claims under chapter 5 of the Bankruptcy Code, the Agent and the DIP Lenders shall have been granted an administrative claim pursuant to Section 503(b) of the Bankruptcy Code. The Superpriority Claims shall at all times be senior to the rights of the Borrower, the Guarantors, any chapter 11 trustee and, subject to section 726 of the Bankruptcy Code, any chapter 7 trustee, or any other creditor (including, without limitation, post-petition vendors and other post-petition creditors) in the Cases or any subsequent proceedings under the Bankruptcy Code, including, without limitation, any chapter 7 cases if any of the Borrower's or the Guarantors' cases are converted to cases under chapter 7 of the Bankruptcy Code, subject only to the Carve-Out. The DIP Lenders agree that so long as no Event of Default or event which with the giving of notice or lapse of time or both would constitute an Event of Default shall have occurred, the Borrower and the Guarantors shall be permitted to pay compensation and reimbursement of expenses incurred in the ordinary course of business, or professional fees allowed and payable under 11 U.S.C. Section 330 and 11 U.S.C. Section 331 or otherwise permitted to be paid by Court order, as the same may be due and payable, and any compensation and expenses previously paid, or accrued but unpaid, prior to the occurrence of such Event of Default shall not reduce the Carve-Out.

Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties hereby covenants and agrees that, upon pursuant to the entry of the DIP OrderOrders, its obligations hereunder and under the Loan DocumentsDocuments and under the Secured Agreements: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesCases (excluding a claim on Avoidance Actions, subject other than pursuant to any limitations set forth in Section 549 of the DIP OrderBankruptcy Code, but including the proceeds of Avoidance Actions (provided that such proceeds shall be available to satisfy such Superpriority Claims)); (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (that is subject to the terms of the New DIP Order and the Intercreditor Agreement and DIP OrderAgreement) on all of the property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, non-voidable liens in existence at the time of commencement of the Cases or to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (limited, in the case of voting equity interests of CFC’s, ’s to 65% of the such voting equity interests), and on all of its cash maintained in the L/C Cash Deposit Account and any investment of the funds contained therein, provided that amounts in the L/C Cash Deposit Account or the Secured Agreements Cash Deposit Account (as defined in the Final Order) shall not be subject to the Carve-Out); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases or that is subject to valid Liens in existence at the time of the commencement of the Cases that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on all of the property of such Loan Parties that is subject to the existing liens which secure the Existing Second Lien Debt (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens, subject in each case to the Carve-Out and as set forth in the DIP Order and the Intercreditor Agreement.the

Priority and Liens. (a) Subject to Section 2.20(c)The Borrowers hereby covenant, each of the Loan Parties hereby covenants represent and agrees warrant that, upon the entry of the DIP Interim Order, its obligations the Obligations of the Borrowers hereunder and under the Loan Documents: Documents and in respect of Indebtedness permitted by Section 6.3(v): (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (on all unencumbered property of the Borrowers and on all cash maintained in the Letter of Credit Account and any direct investments of the funds contained therein, provided that is following the Termination Date amounts in the Letter of Credit Account shall not be subject to the terms of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, nonCarve-voidable liens in existence at the time of commencement of the Cases or to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests)Out; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, the Borrowers that is subject to valid, valid and perfected and non-voidable Permitted Liens in existence at on the time of the commencement of the Cases Filing Date or that is subject to valid Permitted Liens in existence at on the time of the commencement of the Cases Filing Date that are perfected subsequent to such commencement the Filing Date as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv))Code; and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on all of the property of the Borrowers (including, without limitation, inventory, accounts receivable, rights under license agreements, property, plant and equipment, interests in leaseholds and capital stock of Subsidiaries of the Parent, limited, in the case of an entity that is a controlled foreign corporation under Section 957 of the Code, to 66% of the voting stock of such Loan Parties entity) that is subject to the any existing liens which secure the Existing Second Lien Debt Liens (collectively, the “Primed except Permitted Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens, subject in each case only to (x) in the event of the occurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both, the payment of allowed and unpaid professional fees and disbursements incurred by the Borrowers and any statutory committees appointed in the Cases in an aggregate amount not in excess of $5,000,000 and (y) the payment of fees pursuant to 28 U.S.C. Section 1930 to the Clerk of the Bankruptcy Court (collectively, the "CARVE-OUT"). By execution hereof, the Borrowers hereby consent to the priming Lien 133 referenced in clause (iv) above. Following the Termination Date, amounts in the Letter of Credit Account shall not be subject to the Carve-Out Out. Notwithstanding the foregoing, so long as no Event of Default or event which with the giving of notice or lapse of time or both would constitute an Event of Default shall have occurred and be continuing, the Borrowers shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. Section 330 and 11 U.S.C. Section 331, as set forth in the DIP Order same may be due and payable, and any compensation and expenses previously paid, or accrued but unpaid, prior to the Intercreditor Agreementoccurrence of such Event of Default shall not reduce the Carve-Out.

Priority and Liens. (a) Subject to Section 2.20(c)The Borrowers hereby covenant, each represent and warrant that the Obligations of the Loan Parties hereby covenants and agrees that, upon the entry of the DIP Order, its obligations Borrowers hereunder and under the Loan Documents: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (that is subject to the terms on all property of the Intercreditor Agreement and DIP Order) on all of the property of such Loan PartiesBorrowers, whether now existing or hereafter acquired, that is not subject to valid, perfected, non-voidable liens in existence at the time of commencement of the Cases or to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (limitedCode, and on all cash maintained in the case Letter of voting equity interests of CFC’s, 65% Credit Account and any investment of the voting equity interests)funds contained therein, provided that amounts in the Letter of Credit Account shall not be subject to the Carve-Out; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of such Loan Partiesthe Borrowers, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases (including the perfected liens on the stock of certain Subsidiaries of the Parent (the “Stock Liens”) in favor of (x) the trustees for the holders of Indebtedness of the Parent under the Indentures, and (y) the holders of obligations under the Prepetition Credit Agreement and the Surety Bonds) or that is subject to valid Liens in existence at the time of the commencement of the Cases that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of under the Existing Second Lien DebtPrepetition Agreements, which liens shall be primed by the liens described in the following clause (iv)); and in addition, (iv) pursuant to Section 364(d)(1364(d)(l) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on all of the property of such Loan Parties the Borrowers that is subject to the existing liens which secure the Existing Second Lien Debt (collectively, the “Primed Liens”), it being understood that the Stock Liens shall not be primed or constitute part of the Primed Liens) which secure (A) on a first priority basis, the Tranche C Loans, and (B) on a second priority and pari passu basis, (x) approximately $1,650,000,000 of principal amount of indebtedness (plus related interest, fees, costs and charges) owed to the lenders under the Prepetition Credit Agreement, (y) the obligations under the collateral trust, security and/or pledge agreements executed in connection with the Prepetition Agreements and (z) the obligations of the Borrowers in connection with the Surety Bonds and (C) other prepetition obligations or indebtedness (of whatever nature or type) of the Borrowers in an aggregate amount in excess of $20,000,000, all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Administrative Agent, which senior priming Liens in favor of the Administrative Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens but shall not prime Liens, if any, to the extent such Liens secure prepetition obligations or indebtedness (other than obligations under the Prepetition Agreements) in an aggregate amount less than or equal to $20,000,000, subject in each case only to (A) in the event of the occurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both, the payment of accrued and unpaid professional fees and disbursements incurred by the Borrowers and any statutory committees appointed in the Cases, and allowed by the Bankruptcy Court, in an aggregate amount not in excess of $5,000,000 and (B) the payment of fees pursuant to 28 U.S.C. § 1930 and to the Clerk of the Bankruptcy Court (collectively, the “Carve-Out”), provided that no portion of the Carve-Out shall be utilized for the payment of professional fees and expenses incurred, directly or indirectly, in respect of, arising from or relating to, the initiation (other than investigation) or prosecution of any action for preferences, fraudulent conveyances, other avoidance power claims or any other claims or causes of action against the Administrative Agent, the Lenders, the Hedging Parties (as defined in the Approval Order), the administrative agent under the Existing DIP Credit Agreement, the Existing DIP Lenders, the administrative agent under the Prepetition Credit Agreement, the lenders party to the Prepetition Credit Agreement, the issuers of the Surety Bonds or the holders of the Tranche C Loans. Amounts in the Letter of Credit Account shall not be subject to the Carve-Out Out. By execution hereof, the Borrowers hereby consent to the priming Liens referenced in clause (iv) above. Notwithstanding the foregoing, so long as no Event of Default or event which with the giving of notice or lapse of time or both would constitute an Event of Default shall have occurred and be continuing, the Borrowers shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. § 330 and 11 U.S.C. § 331, as set forth in the DIP Order same may be due and payable, and any compensation and expenses previously paid, or accrued but unpaid, prior to the Intercreditor Agreementoccurrence of such Event of Default shall not reduce the Carve-Out.

Priority and Liens. (a) Subject to Section 2.20(c)The Borrower hereby covenants, each of the Loan Parties hereby covenants represents and agrees warrants that, upon the entry of the DIP OrderInterim Order and the Final Order (when entered), its obligations the Obligations of the Borrower hereunder and under the other Loan Documents: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim administrative expense claims in the CasesCase having priority over all administrative expenses of the kind specified in Sections 503(b) or 507(b) of the Bankruptcy Code and any and all expenses and claims of the Borrower, subject whether heretofore or hereafter incurred, including but not limited to any limitations set forth the kind specified in Sections 105, 326, 328, 330, 331, 503(b), 506(c), 507(a), 507(b), 1112 or 1114 of the DIP OrderBankruptcy Code; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (that is subject to the terms on all unencumbered property of the Intercreditor Agreement Borrower (excluding the Borrower’s rights in respect of avoidance actions and DIP Orderthe proceeds thereof under the Bankruptcy Code) and on all of the property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, non-voidable liens in existence at the time of commencement of the Cases or to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests)Borrower’s cash and cash equivalents; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases or Borrower that is subject to valid and perfected Liens in existence at on the time of Petition Date or to valid Liens in existence on the commencement of the Cases Petition Date that are perfected subsequent to such commencement the Petition Date as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject or to the existing Liens that secure obligations in respect of the Existing Second Lien DebtPermitted Liens, which liens shall be primed by the liens described in the following clause (iv))junior to such valid and perfected Liens; and (iv) 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 validperfected Lien, bindingpursuant to Section 364(d)(1) of the Bankruptcy Code, continuingupon all property of the Borrower that secures (x) the Montana Collateral and (y) the South Dakota Collateral, enforceable perfected first which Lien shall have the same priority senior priming vis a vis each other Lien on all 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 property 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 such Loan Parties that is subject the Montana Collateral shall only be available to the existing liens which secure Secured Parties in respect of Obligations not to exceed the Existing Second Lien Debt Montana Maximum Amount and (collectively, ii) the “Primed Liens”), all proceeds of which Primed Liens the South Dakota Collateral shall only be primed by and made subject and subordinate to (available to the extent set forth Secured Parties in respect of Obligations not to exceed the South Dakota Maximum Amount (the limitation contained in the DIP Order) the perfected first priority senior Liens to be granted foregoing proviso will only apply to the Agent, which senior priming proceeds of the collateral secured by the Liens described in this clause(iv) and not to any other Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed LiensSecured Parties), subject in each case 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 as set forth (b) the amount of any retainers received by any professionals retained in the DIP Order 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 Intercreditor AgreementMortgages (if any) to which such Guarantor is or may become a party.

Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties hereby covenants and agrees that, that upon the entry of of, and subject to, the DIP OrderOrder and subject to the Carve-Out in all respects, its obligations hereunder and under the Loan DocumentsObligations: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject only to the Carve-Out and having priority over any limitations set forth and all other administrative expenses, diminution claims and all other priority claims against the Debtors, now existing or hereafter arising, of any kind whatsoever, including, without limitation, all other administrative expenses of the kind specified in sections 503(b) and 507(b) of the Bankruptcy Code, and over any and all other administrative expenses or other claims arising under sections 105, 326, 328, 330, 331, 365, 503(b), 506(c) (subject only to and effective upon entry of the DIP Order; ), 507(a), 507(b), 726, 1113 or 1114 of the Bankruptcy Code, which Superpriority Claims in respect of the Facility shall rank pari passu with each other and (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (that is subject to the terms of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, non-voidable liens in existence at the time of commencement of the Cases or to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases or that is subject to valid Liens in existence at the time of the commencement of the Cases that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1364(d)(l) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on all of the property of such Loan Parties that is subject Collateral, which Liens shall be senior to the existing liens which secure the Existing Second Lien Debt Liens (collectively, the “Primed Liens”), all of ) securing the Pre-Petition ABL Credit Facility and any Liens to which the Primed Liens shall be primed by are senior or rank pari passu, and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens to the extent of any diminution in the value of the collateral of the Primed Liens as provided in the DIP Order in respect of any of the Primed Liens, subject in each case only to (1) Permitted Liens that are valid, binding, enforceable, perfected and unavoidable Liens in favor of third parties that were in existence immediately prior to the Petition Date and that are not impaired, affected or modified by the DIP Order and/or that have priority after the Petition Date by operation of Law, (2) the Carve-Out and (3) and as otherwise set forth in the DIP Order (the “Priming Liens”) and with respect to perfection, solely to the extent it may be achieved by the entry of the DIP Order and the Intercreditor Agreementperfection steps required to be taken under the Collateral Documents; it being agreed that such Collateral shall exclude claims and causes of action under sections 502(d), 544, 545, 547, 548, 550 and 553 of the Bankruptcy Code (collectively “Avoidance Actions”) but include, subject to the entry of the Final Financing Order by the U.S. Bankruptcy Court, the proceeds thereof.

Priority and Liens. (a) Subject to Section 2.20(c)The Borrower hereby covenants, each of the Loan Parties hereby covenants represents and agrees warrants that, upon the entry of the DIP Interim Order (and the Final Order, its obligations as applicable), the Obligations of such Borrower hereunder and under the other Loan Documents: Documents and the Orders, (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesClaims, subject to any limitations set forth in the DIP Order; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (that is subject to the terms of the Intercreditor Agreement on and DIP Order) on security interest in all of the property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, non-voidable liens in existence at the time of commencement of the Cases or to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); previously unencumbered Collateral and (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon and security interest in all property of such Loan Parties, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable Liens in existence at the time of the commencement of the Cases or Collateral that is subject to valid and perfected Liens in existence at on the time Petition Date or valid Liens perfected (but not granted) thereafter to the extent such post-Petition Date perfection in respect of a pre-Petition Date Lien is expressly permitted under the Bankruptcy Code, subject and subordinate in each case with respect to subclauses (i) through (iii) above, only to (x) following the occurrence and during the continuance of an unwaived Event of Default, the payment (as the same may be due and payable) of professional fees and disbursements allowed by order of the commencement of Bankruptcy Court and incurred by (1) the Cases that are perfected subsequent to such commencement as permitted by professionals retained under Section 546(b327(a) and (e) of the Bankruptcy Code under a general retainer (other than certain property that is subject except for ordinary course professionals) by a Borrower and (2) any statutory committee of unsecured creditors appointed in the Case in an aggregate amount not to exceed $500,000 (in addition to such fees and disbursements previously incurred, to the existing Liens that secure obligations in respect extent subsequently awarded) and (y) the payment of unpaid fees pursuant to 28 U.S.C. ss. 1930 and any fees payable to the Clerk of the Existing Second Lien DebtBankruptcy Court (collectively, which liens the "Carve-Out"). The Lender agrees that so long as no Default or Event of Default shall have occurred and be continuing, the Borrower shall be primed by the liens described in the following clause (iv)); permitted to pay compensation and (iv) pursuant to Section 364(d)(1) reimbursement of expenses allowed and payable under Sections 330 and 331 of the Bankruptcy Code, as the same may be payable, and the amounts so paid shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on all not reduce the $500,000 capped element of the property of such Loan Parties that is subject to the existing liens which secure the Existing Second Lien Debt (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens, subject in each case to the Carve-Out and as set forth in the DIP Order and the Intercreditor AgreementOut.

Priority and Liens. (a) Subject to Section 2.20(c), The Borrower and each of the Loan Parties Guarantors hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Interim Order (and the Final Order, its obligations as applicable), the Obligations of the Borrower and the Guarantors hereunder and under the other Loan Documents: , (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesSuper-priority Claims, subject to any limitations set forth in the DIP Order; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (on all Collateral that is subject to the terms otherwise not encumbered by a valid and perfected Lien as of the Intercreditor Agreement and DIP Order) on all of the property of such Loan PartiesFiling Date, whether now existing or hereafter acquired, that is not subject to valid, perfected, non-voidable liens in existence at the time of commencement of the Cases or to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second priority Lien upon all property Collateral (other than the Prepetition Collateral, as to which the Lien in favor of such Loan Parties, whether now existing or hereafter acquired, the Administrative Agent and the Lenders will be as described in clause (iv) of this sentence) that is subject to valida Permitted Lien, including, without limitation, valid and perfected and non-voidable Liens in existence at on the time of the commencement of the Cases Filing Date or that is subject to valid Liens in existence at the time of the commencement of the Cases that are perfected subsequent to such commencement as permitted by Section 546(b(but not granted) of the Bankruptcy Code (other than certain property that is subject thereafter to the existing Liens that secure obligations extent such post-Filing Date perfection in respect of a pre-Filing Date claim is expressly permitted under the Existing Second Lien DebtBankruptcy Code, which liens junior to such Permitted Liens, provided that the Liens granted in favor of the Administrative Agent and the Lenders shall be primed by senior to any Permitted Lien which is expressly stated herein to be junior to the liens described Liens in favor of the following clause (iv)); Administrative Agent and the Lenders, and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on all of the property of such Loan Parties that is subject to the existing liens which secure the Existing Second Lien Debt (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Agent, which senior priming Liens in favor of the Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens, subject in each case to the Carve-Out and as set forth in the DIP Order and the Intercreditor Agreement.first

Priority and Liens. (a) Subject to Section 2.20(c), The Borrower and each of the Loan Parties Guarantors hereby covenants covenants, represents and agrees warrants hereby that, upon the entry of the DIP Interim Order (and the Final Order, its obligations as applicable), the Obligations of the Borrower and the Guarantors hereunder and under the other Loan Documents: Documents and the Interim Order (and the Final Order, as applicable), including, without limitation in respect of Cash Management Obligations, (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the CasesClaims, subject to any limitations set forth in the DIP Order; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (that is subject to on all Collateral, including without limitation, all cash maintained in the terms Letter of Credit Account, the Concentration Account, any Qualified Account and the Asset Sale Proceeds Account and any direct investments of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquiredfunds contained therein, that is otherwise not subject to valid, perfected, non-voidable liens in existence at the time of commencement encumbered by a valid and perfected Lien as of the Cases or to validPetition Date, non-voidable liens in existence at including the time proceeds of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (limitedall avoidance actions, in the case of voting equity interests of CFC’s, 65% of the voting equity interests); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, Collateral that is subject to valid, perfected and non-voidable avoidable Liens in existence at on the time of the commencement of the Cases or that is subject to valid Liens in existence at the time of the commencement of the Cases that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code Filing Date (other than certain property that is subject to secure the Pre-Petition Obligations) or valid, non-avoidable Liens perfected (but not granted) thereafter to the existing Liens that secure obligations extent such post-Filing Date perfection in respect of a pre-Filing Date claim is expressly permitted under the Existing Second Lien DebtBankruptcy Code, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on upon all of the property of such Loan Parties Collateral (x) that is subject to a valid Lien or security interest in effect on the existing liens which Filing Date to secure the Existing Second Pre-Petition Obligations, (y) that is subject to a Lien Debt granted after the Filing Date to provide adequate protection in respect of the Pre-Petition Obligations or (collectivelyz) that is presently subject to a valid Lien in effect on the Filing Date that is junior to the Liens that secure the Prepetition Obligations, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate in each case with respect to subclauses (i) through (iv) above, only to payment of (A) the extent unpaid fees of the clerk of the Bankruptcy Court and of the United States Trustee pursuant to 28 U.S.C. Section 1930(a) and (b), (B) following the occurrence and during the continuation of a Default or Event of Default, the aggregate allowed unpaid fees and expenses payable under Sections 330 and 331 of the Bankruptcy Code to professional persons retained pursuant to an order of the Court by the Borrower or any Guarantor or any statutory committee appointed in these chapter 11 cases not to exceed $1,500,000 in the aggregate, and (C) costs and administrative expenses permitted to be incurred by any chapter 7 trustee pursuant to an order of the Bankruptcy Court following any conversion of the Borrower's and the Guarantors' chapter 11 cases pursuant to Section 1112 of the Bankruptcy Code in an amount not to exceed $50,000 (collectively (A) through (C), the "Carve-Out"). So long as no Event of Default shall have occurred and be continuing, the Borrower and the Guarantors shall be permitted to pay compensation and reimbursement of expenses allowed and payable under sections 330 and 331 of the Bankruptcy Code (including, subject to restrictions set forth in this section, the DIP fees and expenses of all professional persons retained pursuant to an order of the Bankruptcy by all statutory committees appointed in these cases not to exceed $150,000 in the aggregate for these chapter 11 cases), as the same may be due and payable, and the same shall not reduce the Carve-Out; provided, however, that (i) notwithstanding anything to the contrary herein, no Borrowings, Letters of Credit, cash collateral, Collateral or the Carve-Out may be used to (A) object, contest or raise any defense to, the validity, perfection, priority, extent or enforceability of any amount due under the Loan Documents or the Existing Agreement, or the liens or claims granted under the Interim Order (and the Final Order, as applicable), the Loan Documents or the Existing Agreement (but may be used for the investigation in connection with the Existing Agreements), (B) assert any claims, counterclaims, defenses or causes of action against the perfected first priority senior Liens Agent, the Lenders, the Pre-Petition Agent or the Existing Lenders or their respective affiliates, (C) prevent, hinder or otherwise delay the Agent's or the Pre-Petition Agent's assertion, enforcement or realization on cash collateral or the Collateral in accordance with the Loan Documents, the Existing Agreements or the Interim Order (and the Final Order, as applicable) or (D) seek to be modify any of the rights granted to the Agent, which senior priming Liens the Lenders, the Pre-Petition Agent or the Existing Lenders under the Loan Documents, the Existing Agreement or the Interim Order (and the Final Order, as applicable), in favor each of the Agent foregoing cases without such parties' prior written consent; (ii) nothing herein shall also prime be construed to impair the ability of any Liens granted after the commencement of the Cases party to provide adequate protection Liens in respect of object to any of the Primed Liensfees, expenses, reimbursement or compensation described in clauses (ii) and (iii) above, and (iii) cash in the Letter of Credit Account, shall not be subject in each case to the Carve-Out. Notwithstanding anything herein to the contrary, the Carve-Out and as set forth in the DIP Order and the Intercreditor Agreementshall not be used to commence or prosecute (but may be used to investigate) any Prohibited Claim.

Priority and Liens. (a) Subject to Section 2.20(c)The Borrowers hereby covenant, each of the Loan Parties hereby covenants represent and agrees warrant that, upon the entry of the DIP Interim Order, its obligations the Obligations of the Borrowers hereunder and under the Loan Documents: Documents and in respect of Indebtedness permitted by Section ------- 6.3(v): (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all ------ times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (on all unencumbered property of the Borrowers and on all cash maintained in the Letter of Credit Account and any direct investments of the funds contained therein, provided that is amounts in the Letter of Credit -------- Account shall not be subject to the terms of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, nonCarve-voidable liens in existence at the time of commencement of the Cases or to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests)Out; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, the Borrowers that is subject to valid, valid and perfected and non-voidable Liens in existence at on the time Filing Date (including the perfected liens on the stock of certain Subsidiaries of the commencement Parent ("Stock Liens") in favor of (x) the trustee ----------- for the holders of Indebtedness of the Cases Parent under the Indentures, and (y) the holders of obligations under the Existing Credit Agreement and the Surety Bonds) or that is subject to valid Liens in existence at on the time of the commencement of the Cases Filing Date that are perfected subsequent to such commencement the Filing Date as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of under the Existing Second Lien DebtAgreements, which liens shall be primed by the liens to be granted to the Administrative Agent described in the following clause (iv)); and in addition, (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on all of the property of such Loan Parties the Borrowers (including, without limitation, inventory, receivables, rights under license agreements, property, plant and equipment and interests in leaseholds) that is subject to the existing liens (the "Primed Liens", it being understood that the Stock Liens shall not be primed or ------------ constitute part of the Primed Liens) which secure (x) on a pari passu basis, the obligations of the Borrowers to the lenders party to the Existing Second Lien Debt Credit Agreement and the obligations of the Borrowers in connection with the Surety Bonds, and (collectively, y) other obligations or Indebtedness of the “Primed Liens”)Borrowers pursuant to the other Existing Agreements, all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Administrative Agent, which senior priming Liens in favor of the Administrative Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens but shall not prime Liens, if any, to the extent such Liens secure obligations (other than obligations under the Existing Agreements) in an aggregate amount less than or equal to $20,000,000, subject in each case only to (x) in the event of the occurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both, the payment of allowed and unpaid professional fees and disbursements incurred by the Borrowers and any statutory committees appointed in the Cases in an aggregate amount not in excess of $5,000,000 and (y) the payment of fees pursuant to 28 U.S.C. ss. 1930 and to the Clerk of the Bankruptcy Court (collectively, the "Carve-Out"), provided that no portion of --------- -------- the Carve-Out shall be utilized for the payment of professional fees and disbursements incurred in connection with any challenge to the amount, extent, priority, validity, perfection or enforcement of the Indebtedness of the Borrowers owed with respect to the parties primed by the priming Liens or to the collateral securing such Indebtedness or any other action against such parties. Amounts in the Letter of Credit Account shall not be subject to the Carve-Out and as set forth Out. By execution hereof, the Borrowers hereby consent to the priming Liens referenced in clause (iv) above. Amounts in the DIP Order Letter of Credit Account shall not be subject to the Carve-Out. Notwithstanding the foregoing, so long as no Event of Default or event which with the giving of notice or lapse of time or both would constitute an Event of Default shall have occurred and be continuing, the Intercreditor AgreementBorrowers shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. ss. 330 and 11 U.S.C. ss. 331, as the same may be due and payable, and any compensation and expenses previously paid, or accrued but unpaid, prior to the occurrence of such Event of Default shall not reduce the Carve-Out. Notwithstanding the foregoing or any provision of the Security and Pledge Agreement to the contrary, Collateral shall not include any of the Borrowers' avoidance actions under Sections 544 through 549 of the Bankruptcy Code.

Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Credit Parties hereby covenants and agrees that, that upon the entry of of, and subject to, an Interim Order (and when applicable, the Final Order) and subject to the Carve Out in all respects and, subject to the DIP OrderABL Intercreditor Agreement, its obligations hereunder and under the Loan DocumentsObligations: (i) pursuant to Section section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim Claims in the Chapter 11 Cases, subject to any limitations set forth which Superpriority Claims in respect of the Term Facility and the DIP OrderABL Facility, if any, shall rank pari passu with each other; (ii) pursuant to Section section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (that is subject to the terms of the Intercreditor Security Agreement and DIP Orderthe Orders but which will, in any event, be subject to the Carve Out) on all of the property of such Loan PartiesCollateral, whether now existing or hereafter acquired, that is not subject to valid, perfected, non-voidable liens in existence at the time of commencement of the Chapter 11 Cases or to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section section 546(b) of the Bankruptcy Code (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests)Code; (iii) pursuant to Section section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second junior Lien upon all property of such Loan PartiesCollateral, whether now existing or hereafter acquired, that is subject to valid, perfected and non-voidable nonvoidable Liens in favor of Persons that are not Affiliates of the Credit Parties and in existence at the time of the commencement of the Chapter 11 Cases or that is subject to valid Liens in existence at the time of the commencement of the Chapter 11 Cases that are perfected subsequent to such commencement as permitted by Section section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Prepetition First Lien Debt, which liens shall be primed by the liens described in the following clause (iv)); and (iv) pursuant to Section 364(d)(1section 364(d)(l) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected first priority senior priming Lien on all of the property of such Loan Parties Collateral that is subject to the existing liens Liens which secure the Existing Second Prepetition First Lien Debt (collectively, the “Primed Liens”)) other than with respect to Liens on Collateral that is Specified Collateral securing the DIP ABL Facility, if any, all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Administrative Agent, which senior priming Liens in favor of the Administrative Agent shall also prime any Liens granted after the commencement of the Chapter 11 Cases to provide adequate protection Liens to the extent of any diminution in the value of the collateral of the Primed Liens as provided in the Interim Order and the Final Order in respect of any of the Primed Liens, subject in each case to the Carve-Carve Out in all respects and as set forth in the DIP Order Orders (the “Priming Liens”) and with respect to perfection, solely to the extent it may be achieved by the entry of the Orders and the Intercreditor perfection steps required to be taken under the Security Agreement.

Priority and Liens. (a) Subject to Section 2.20(c), each Each of the Loan Parties Borrowers hereby covenants covenants, represents and agrees warrants that, upon the entry of the DIP Amendment Order, its obligations the Obligations of the Borrowers hereunder and under the Loan Documents: Documents and in respect of Indebtedness permitted by Section 6.3(v): (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute an allowed Superpriority Claim in the Cases, subject to any limitations set forth in the DIP OrderClaim; (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid, binding, continuing, enforceable perfected first priority Lien (on all unencumbered property of the Borrowers and on all cash maintained in the Letter of Credit Account and any direct investments of the funds contained therein, provided that is following the Termination Date, amounts in the Letter of Credit Account shall not be subject to the terms of the Intercreditor Agreement and DIP Order) on all of the property of such Loan Parties, whether now existing or hereafter acquired, that is not subject to valid, perfected, nonCarve-voidable liens in existence at the time of commencement of the Cases or to valid, non-voidable liens in existence at the time of such commencement that are perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code (limited, in the case of voting equity interests of CFC’s, 65% of the voting equity interests)Out; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable perfected second Lien upon all property of such Loan Parties, whether now existing or hereafter acquired, the Borrowers that is subject to valid, valid and perfected and non-voidable Liens in existence at on the time of the commencement of the Cases Filing Date or that is subject to valid Liens in existence at on the time of the commencement of the Cases Filing Date that are perfected subsequent to such commencement the Filing Date as permitted by Section 546(b) of the Bankruptcy Code (other than certain property that is subject to the existing Liens that secure obligations in respect of the Existing Second Lien Debt, which liens shall be primed by the liens described in the following clause (iv))Code; and in addition, (iv) pursuant to Section 364(d)(1) of the Bankruptcy CodeCode and other than as expressly set forth in the Orders, shall be secured by a valid, binding, continuing, enforceable perfected first priority priority, senior priming Lien on all of the property of such Loan Parties the Borrowers (including, without limitation, inventory, receivables, rights under license agreements, and property, plant and equipment) that is subject to the existing liens which secure (x) the Existing Second Lien Debt obligations of the Parent Borrower and certain of the Subsidiary Borrowers under or in connection with the Pre-Petition Credit Agreement, and (y) other obligations or indebtedness of the Borrowers pursuant to other agreements in an aggregate amount in excess of $2,500,000 (collectively, the “Primed Liens”), all of which Primed Liens shall be primed by and made subject and subordinate to (to the extent set forth in the DIP Order) the perfected first priority senior Liens to be granted to the Administrative Agent, which senior priming Liens in favor of the Administrative Agent shall also prime any Liens granted after the commencement of the Cases to provide adequate protection Liens in respect of any of the Primed Liens but shall not prime Liens, if any, to the extent such Liens secure obligations (other than obligations under the Pre-Petition Credit Agreement) in an aggregate amount less than or equal to $2,500,000; subject in each case only to (x) in the event of the occurrence and during the continuance of an Event of Default or an event that would constitute an Event of Default with the giving of notice or lapse of time or both (a “Default”), the payment of allowed and unpaid professional fees and disbursements incurred by the Borrowers and any statutory committees appointed in the Cases in an aggregate amount not in excess of $3,000,000 (plus the amount set forth in the most recent Borrowing Base Certificate delivered by the Borrowers to the Administrative Agent of then unpaid professional fees and expenses incurred prior to the occurrence of a Default or an Event of Default to the extent that such unpaid fees and expenses are subsequently allowed by the Bankruptcy Court), and (y) the payment of fees pursuant to 28 U.S.C. § 1930 and to the Clerk of the Bankruptcy Court (collectively, the “Carve-Out”), provided that no portion of the Carve-Out shall be utilized for the payment of professional fees and disbursements incurred in connection with any challenge to the amount, extent, priority, validity, perfection or enforcement of the Indebtedness of the Borrowers owed with respect to the parties primed by the priming Liens or to the collateral securing such Indebtedness or any other action against such parties. Amounts in the Letter of Credit Account shall not be subject to the Carve-Out Out. By execution hereof, the Borrowers hereby consent to the priming Liens referenced in clause (iv) above. Notwithstanding the foregoing, so long as no Default or Event of Default shall have occurred and be continuing, the Borrowers shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. §§ 328, 330 and 331, as set forth in the DIP Order same may be due and payable, and any compensation and expenses previously paid, or accrued but unpaid, prior to the Intercreditor Agreementoccurrence of such Default or Event of Default shall not reduce the Carve-Out.