Common use of Security and Priority Clause in Contracts

Security and Priority. Subject to entry and the terms of the Interim Financing Order (or the Final Financing Order, when applicable) including, the Post-Petition Intercreditor Arrangements all of the Obligations of each Debtor Loan Party shall, subject to the Carve-Out, at all times: (a) Pursuant to section 364(c)(1) of the Bankruptcy Code, constitute allowed superpriority administrative expense claims against the Debtor Loan Parties (without the need to file any proof of claim) with priority over any and all claims against the Debtor Loan Parties, now existing or hereafter arising, of any kind whatsoever, including, without limitation, all administrative expenses of the kind specified in sections 503(b) and 507(b) of the Bankruptcy Code and any and all administrative expenses or other claims arising under sections 105, 326, 328, 330, 331, 363, 365, 503(a), 503(b), 506(c) (upon entry of the Final Financing Order, to the extent therein approved), 507(a), 507(b), 726, 1113 or 1114 of the Bankruptcy Code (including any adequate protection obligations), whether or not such expenses or claims may become secured by a judgment lien or other non-consensual lien, levy or attachment, which allowed claims (the “DIP Superpriority Claims”) shall for purposes of section 1129(a)(9)(A) of the Bankruptcy Code be considered administrative expenses allowed under section 503(b) of the Bankruptcy Code, and which DIP Superpriority Claims shall be payable from and have recourse to all pre- and postpetition property, whether existing on the Petition Date or thereafter acquired, of the Debtor Loan Parties and all proceeds thereof (excluding Avoidance Actions but including, effective upon entry of the Final Financing Order, the proceeds of any Avoidance Actions), subject only to the Liens thereon and the Carve-Out. The DIP Superpriority Claims shall be entitled to the full protection of section 364(e) of the Bankruptcy Code in the event that the Interim Financing Order (or, after entry thereof, the Final Financing Order) or any provision thereof is vacated, reversed, amended or otherwise modified, on appeal or otherwise. (b) Pursuant to Section 364(c)(2) of the Bankruptcy Code and the Security Documents, be secured by a valid, binding, perfected, continuing, enforceable, non-avoidable First Priority security interest and Lien on the Collateral of each Debtor Loan Party (i) to the extent such Collateral is not subject to valid, enforceable, perfected and non-avoidable Liens as of the Petition Date and (ii) excluding claims and causes of action under sections 502(d), 544, 545, 547, 548, 550 and 553 of the Bankruptcy Code (collectively “Avoidance Actions”) (it being understood that, notwithstanding such exclusion of Avoidance Actions, upon entry of the Final Financing Order such Lien shall attach to the proceeds of any Avoidance Actions)Avoidance Actions. (c) Pursuant to Sections 364(c)(3) and 364(d)(1) of the Bankruptcy Code and the Security Documents, be secured by a valid, binding, perfected, continuing, enforceable, non-avoidable security interest and Lien on all other Collateral of each Debtor Loan Party (excluding Avoidance Actions (it being understood that, notwithstanding such exclusion, upon entry of the Final Financing Order, such Liens shall also attach to the proceeds of any Avoidance Actions)), which security interests and Liens on such Collateral shall in each case be (i) senior to and prime all other Liens and security interests (other than liens and security interests identified in subclause (ii) below) in the Debtor Loan Parties’ Collateral, including, without limitation any existing Liens on any Collateral that secured the Prepetition Obligations, and (ii) subject to (1) any valid, binding, enforceable, perfected and unavoidable Liens in favor of third parties that were (x) in existence immediately prior to the Petition Date, or (y) perfected subsequent to the Petition Date as permitted by Section 546(b) of the Bankruptcy Code, but in each case, solely to the extent that such Liens and security interests of such third parties are, as of the Petition Date, senior to the Prepetition First Priority Liens (as defined in the Financing Orders) and Prepetition Second Priority Liens (as defined in the Financing Orders), and were permitted by the terms of the applicable Prepetition Loan Documents and (2) any other Permitted Prior Liens on such Collateral. Notwithstanding anything to the contrary in this Section 2.17, (i) the relative priorities of the Liens securing the Term Loan Obligations, on the one hand, and the Liens securing the Prepetition Obligations (including any adequate protection Liens and claims) and/or the L/C Facility Obligations, on the other hand, solely as between them, shall be subject in all respects to any applicable intercreditor provisions set forth in the Financing Orders (including the Post-Petition Intercreditor Arrangements), and (ii) any provisions in this Section 2.17 shall not limit the rights and remedies of the Secured Parties under the Loan Documents to the extent such Liens are not permitted by Section 7.01. Notwithstanding the exclusion of Avoidance Actions in this Section 2.17, it is understood and agreed that, as provided in the Final Financing Order (and subject to the subordination provisions contained therein), Collateral securing Obligations relating to the Tranche A Roll-Up Loans and the Tranche B Roll-Up Loans shall include D/O Insurance Proceeds (as defined in the Committee Settlement) and other insurance proceeds, subject to the D/O Carve-Out) (as defined in the Committee Settlement). The proceeds of any D/O Policy (as defined in the Committee Settlement Annex) or any other insurance policy shall constitute “Collateral” solely to the extent of the Borrower’s and the Secured DIP Guarantors’ (as defined in the Financing Orders) respective rights, title and interest in, to and under such D/O Policy or other insurance policy.

Security and Priority. Subject (i) From and after the Petition Date, subject in all respects to the entry and the terms of (including any adequate protection liens granted under) the Interim Financing DIP Order (or and the Final Financing DIP Order, when applicable) including), the Post-Petition Intercreditor Arrangements including Exhibit C thereto, all of the Obligations of each Debtor Loan Party are authorized by each DIP Order and shall, subject only to the Carve-OutOut in full in cash, at all times: (aA) Pursuant pursuant to section 364(c)(1) of the Bankruptcy Code, constitute joint and several allowed superpriority super-priority administrative expense claims against the Debtor Loan Parties (without the need to file any proof of claim) with priority over any and all other administrative expenses, adequate protection claims, diminution in value claims, and all other claims asserted against the Debtor Loan Parties, now existing or hereafter arising, of any kind whatsoever, including, without limitation, all administrative expenses of the kind specified in sections 503(b) and 507(b) of the Bankruptcy Code and any and all administrative expenses or other claims arising under sections 105, 326, 328, 330, 331, 361, 362, 363, 364, 365, 503(a), 503(b)503, 506(c) (upon entry of the Final Financing Order, to the extent therein approved), 507(a), 507(b), 546, 726, 1113 or 1114 of the Bankruptcy Code (including any adequate protection obligations)Code, whether or not such expenses or claims may become secured by a judgment lien or other non-consensual lien, levy or attachment, which allowed claims (the “DIP Superpriority Super-Priority Claims”) shall for purposes of section 1129(a)(9)(A) of the Bankruptcy Code be considered administrative expenses allowed under section 503(b) of the Bankruptcy Code, and which DIP Superpriority Super-Priority Claims shall be payable from and have recourse to all pre- and postpetition post-petition assets and property, whether existing on the Petition Date or thereafter acquired, of the Debtor Loan Parties and all proceeds thereof (excluding Avoidance Actions but including, effective upon entry of the Final Financing Order, the proceeds of any Avoidance Actions), subject only to the Liens thereon and the Carve-Out. The DIP Superpriority Claims shall be entitled to the full protection of section 364(e) of the Bankruptcy Code in the event that the Interim Financing Order (or, after entry thereof, the Final Financing Order) or any provision thereof is vacated, reversed, amended or otherwise modified, on appeal or otherwise.; (bB) Pursuant pursuant to Section section 364(c)(2) of the Bankruptcy Code and the Security DocumentsCode, be secured by a valid, binding, perfected, continuing, enforceable, non-avoidable First Priority avoidable, first-priority security interest interests in and Lien Liens on the all Collateral of each Debtor the Loan Party (i) to the extent such Collateral is not subject to validParties that, enforceable, perfected and non-avoidable Liens as of the Petition Date and Date, was not subject to (ii1) excluding claims and causes of action under sections 502(d)the Liens or security interests securing the Prepetition Debt or (2) Permitted Prior Liens, 544which Collateral shall include, 545, 547, 548, 550 and 553 of the Bankruptcy Code (collectively “Avoidance Actions”) (it being understood that, notwithstanding such exclusion of Avoidance Actions, upon subject to entry of the Final Financing Order such Lien shall attach to DIP Order, the proceeds of any Avoidance Actions)Avoidance Actions.; (cC) Pursuant pursuant to Sections section 364(c)(3) and 364(d)(1) of the Bankruptcy Code and the Security DocumentsCode, be secured by a valid, binding, perfected, continuing, enforceable, non-avoidable security interest and Lien on all other Collateral of each Debtor Loan Party (excluding Avoidance Actions (it being understood thatavoidable, notwithstanding such exclusion, upon entry of the Final Financing Order, such Liens shall also attach to the proceeds of any Avoidance Actions)), which junior security interests in and Liens on such all Collateral shall in each case be (i) senior to and prime all other Liens and security interests (other than liens and security interests identified in subclause (ii) below) in the Debtor Loan Parties’ Collateral, including, without limitation any existing Liens on any Collateral that secured the Prepetition Obligations, and (ii) subject to (1) any valid, binding, enforceable, perfected and unavoidable Liens in favor of third parties that were (x) in existence immediately prior to the Petition Date, or (y) perfected subsequent to the Petition Date as permitted by Section 546(b) of the Bankruptcy Code, but in each case, solely to the extent that such Liens and security interests of such third parties areLoan Parties that, as of the Petition Date, senior was subject to (1) the Liens or security interests securing the Prepetition First Priority Liens (as defined in the Financing Orders) and Prepetition Second Priority Liens (as defined in the Financing Orders), and were permitted by the terms of the applicable Prepetition Loan Documents and Debt or (2) any other Permitted Prior Liens on such Collateral. Notwithstanding anything to the contrary in this Section 2.17, (i) the relative priorities of the Liens securing the Term Loan Obligations, on the one hand, and the Liens securing the Prepetition Obligations (including any adequate protection Liens and claims) and/or the L/C Facility Obligations, on the other hand, solely as between them, shall be subject in all respects to any applicable intercreditor provisions set forth in the Financing Orders (including the Post-Petition Intercreditor Arrangements), and Liens. (ii) any provisions in this Section 2.17 shall not limit Upon (and at all times after) the rights and remedies of the Secured Parties under the Loan Documents to the extent such Liens are not permitted by Section 7.01. Notwithstanding the exclusion of Avoidance Actions in this Section 2.17entry, it is understood and agreed that, as provided in the Final Financing Order (and subject to the subordination provisions contained therein)terms, Collateral securing Obligations relating to of each of the Tranche A Roll-Up Loans Interim DIP Order and the Tranche B Roll-Up Loans shall include D/O Insurance Proceeds (as defined Final DIP Order, each such DIP Order is effective to create in the Committee Settlement) and other insurance proceeds, subject to the D/O Carve-Out) (as defined in the Committee Settlement). The proceeds of any D/O Policy (as defined in the Committee Settlement Annex) or any other insurance policy shall constitute “Collateral” solely to the extent favor of the Borrower’s and Agent, for the benefit of the Secured Parties, the DIP Guarantors’ (as defined Super-Priority Claims and legal, valid, enforceable and perfected security interests in and Liens on the Financing Orders) respective rightsCollateral of the Loan Parties and proceeds thereof, title and interest in, to and under such D/O Policy or other insurance policywithout any further action being required by the Agent.

Security and Priority. Subject (i) From and after the Petition Date, subject in all respects to the entry and the terms of (including any adequate protection liens granted under) the Interim Financing DIP Order (or and the Final Financing DIP Order, when applicable) including), the Post-Petition Intercreditor Arrangements including Exhibit C thereto, all of the Obligations of each Debtor Loan Party are authorized by each DIP Order and shall, subject only to the Carve-OutOut in full in cash, at all times: (aA) Pursuant pursuant to section 364(c)(1) of the Bankruptcy Code, constitute joint and several allowed superpriority super-priority administrative expense claims against the Debtor Loan Parties (without the need to file any proof of claim) with priority over any and all other administrative expenses, adequate protection claims, diminution in value claims, and all other claims asserted against the Debtor Loan Parties, now existing or hereafter arising, of any kind whatsoever, including, without limitation, all administrative expenses of the kind specified in sections 503(b) and 507(b) of the Bankruptcy Code and any and all administrative expenses or other claims arising under sections 105, 326, 328, 330, 331, 361, 362, 363, 364, 365, 503(a), 503(b)503, 506(c) (upon entry of the Final Financing Order, to the extent therein approved), 507(a), 507(b), 546, 726, 1113 or 1114 of the Bankruptcy Code (including any adequate protection obligations)Code, whether or not such expenses or claims may become secured by a judgment lien or other non-consensual lien, levy or attachment, which allowed claims (the “DIP Superpriority Super-Priority Claims”) shall for purposes of section 1129(a)(9)(A) of the Bankruptcy Code be considered administrative expenses allowed under section 503(b) of the Bankruptcy Code, and which DIP Superpriority Super-Priority Claims shall be payable from and have recourse to all pre- and postpetition post-petition assets and property, whether existing on the Petition Date or thereafter acquired, of the Debtor Loan Parties and all proceeds thereof (excluding Avoidance Actions but including, effective upon entry of the Final Financing Order, the proceeds of any Avoidance Actions), subject only to the Liens thereon and the Carve-Out. The DIP Superpriority Claims shall be entitled to the full protection of section 364(e) of the Bankruptcy Code in the event that the Interim Financing Order (or, after entry thereof, the Final Financing Order) or any provision thereof is vacated, reversed, amended or otherwise modified, on appeal or otherwise. (b) Pursuant to Section 364(c)(2) of the Bankruptcy Code and the Security Documents, be secured by a valid, binding, perfected, continuing, enforceable, non-avoidable First Priority security interest and Lien on the Collateral of each Debtor Loan Party (i) to the extent such Collateral is not subject to valid, enforceable, perfected and non-avoidable Liens as of the Petition Date and (ii) excluding claims and causes of action under sections 502(d), 544, 545, 547, 548, 550 and 553 of the Bankruptcy Code (collectively “Avoidance Actions”) (it being understood that, notwithstanding such exclusion of Avoidance Actions, upon entry of the Final Financing Order such Lien shall attach to the proceeds of any Avoidance Actions)Avoidance Actions. (c) Pursuant to Sections 364(c)(3) and 364(d)(1) of the Bankruptcy Code and the Security Documents, be secured by a valid, binding, perfected, continuing, enforceable, non-avoidable security interest and Lien on all other Collateral of each Debtor Loan Party (excluding Avoidance Actions (it being understood that, notwithstanding such exclusion, upon entry of the Final Financing Order, such Liens shall also attach to the proceeds of any Avoidance Actions)), which security interests and Liens on such Collateral shall in each case be (i) senior to and prime all other Liens and security interests (other than liens and security interests identified in subclause (ii) below) in the Debtor Loan Parties’ Collateral, including, without limitation any existing Liens on any Collateral that secured the Prepetition Obligations, and (ii) subject to (1) any valid, binding, enforceable, perfected and unavoidable Liens in favor of third parties that were (x) in existence immediately prior to the Petition Date, or (y) perfected subsequent to the Petition Date as permitted by Section 546(b) of the Bankruptcy Code, but in each case, solely to the extent that such Liens and security interests of such third parties are, as of the Petition Date, senior to the Prepetition First Priority Liens (as defined in the Financing Orders) and Prepetition Second Priority Liens (as defined in the Financing Orders), and were permitted by the terms of the applicable Prepetition Loan Documents and (2) any other Permitted Prior Liens on such Collateral. Notwithstanding anything to the contrary in this Section 2.17, (i) the relative priorities of the Liens securing the Term Loan Obligations, on the one hand, and the Liens securing the Prepetition Obligations (including any adequate protection Liens and claims) and/or the L/C Facility Obligations, on the other hand, solely as between them, shall be subject in all respects to any applicable intercreditor provisions set forth in the Financing Orders (including the Post-Petition Intercreditor Arrangements), and (ii) any provisions in this Section 2.17 shall not limit the rights and remedies of the Secured Parties under the Loan Documents to the extent such Liens are not permitted by Section 7.01. Notwithstanding the exclusion of Avoidance Actions in this Section 2.17, it is understood and agreed that, as provided in the Final Financing Order (and subject to the subordination provisions contained therein), Collateral securing Obligations relating to the Tranche A Roll-Up Loans and the Tranche B Roll-Up Loans shall include D/O Insurance Proceeds (as defined in the Committee Settlement) and other insurance proceeds, subject to the D/O Carve-Out) (as defined in the Committee Settlement). The proceeds of any D/O Policy (as defined in the Committee Settlement Annex) or any other insurance policy shall constitute “Collateral” solely to the extent of the Borrower’s and the Secured DIP Guarantors’ (as defined in the Financing Orders) respective rights, title and interest in, to and under such D/O Policy or other insurance policy.;