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<br />(h) For the avoidance of doubt and notwithstanding anything in this Final
<br />Order, the DIP Facility or in the Prepetition Credit Documents to the contrary, the Carve -Out
<br />shall be senior to all liens and claims securing the DIP Facility, the Adequate Protection Liens,
<br />and the Adequate Protection Claims, and any and all other forms of Adequate Protection, liens,
<br />as well as Prepetititon Liens, or claims securing the DIP Obligations or the Prepetition
<br />Obligations.
<br />11. DIP Superpriority Claims.
<br />(a) DIP Suoerpriority Claims. Pursuant to section 364(cxl) of the Bankruptcy
<br />Code, all of the DIP Obligations shall constitute allowed superpriority administrative expense
<br />claims against the Credit Parties on a joint and several basis (without the need to file any proof of
<br />claim) with priority over any and all claims against each of the Credit Parties, now existing or
<br />hereafter arising, of any kind whatsoever, including, without limitation, all administrative
<br />expenses of the kind specified in sections 503(b) and 507(b) of the Bankruptcy Code and any and
<br />all administrative expenses or other claims arising under sections 105, 326, 328, 330, 331, 365,
<br />503(b), 506(e), 507(a), 507(b), 726, 1113 or 1114 of the Bankruptcy Code (including the
<br />Adequate Protection Obligations), whether or not such expenses or claims may become secured
<br />by a judgment lien or other non-consensual lien, levy or attachment, which allowed claims (the
<br />"DIP Superpriority Claims") shall for purposes of section 1129(a)(9)(A) of the Bankruptcy
<br />Code be considered administrative expenses allowed under section 503(b) of the Bankruptcy
<br />Code, and which DIP Superpriority Claims shall be payable from and have recourse to all pre -
<br />and postpetition property of the Credit Parties and all proceeds thereof (except for Avoidance
<br />Actions, Avoidance Proceeds and any commercial tort claims of the Debtors that are not subject
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<br />binding, continuing, enforceable, fully -perfected first priority senior security interest in
<br />and lien upon all tangible and intangible pre- and postpetition property of the Credit
<br />Parties, whether existing on the Petition Date or thereafter acquired, and the proceeds,
<br />products, rents, and profits thereof, that, on or as of the Petition Date, is not subject to a
<br />valid, perfected and non -avoidable lien or is subject to a valid and non -avoidable lien in
<br />existence as of the Petition Date that is perfected subsequent to the Petition Date as
<br />permitted by section 546(b) of the Bankruptcy Code, including, without limitation, any
<br />and all unencumbered cash of the Credit Parties (whether maintained with the DIP
<br />Collateral Agent or otherwise) and any investment of such cash, inventory, amounts
<br />receivable, other rights to payment whether arising before or after the Petition Date,
<br />contracts, properties, plants, fixtures, machinery, equipment, general intangibles,
<br />documents, instruments, securities, chattel paper, interests in leaseholds, real properties,
<br />deposit accounts, patents, copyrights, trademarks, trade names, rights under license
<br />agreements and other intellectual property, capital stock of subsidiaries, wherever
<br />located, and the proceeds, products, rents and profits of the foregoing, whether arising
<br />under section 552(b) of the Bankruptcy Code or otherwise, of all the foregoing (the
<br />"Unencumbered Property"), in each case other than the Avoidance Actions, Avoidance
<br />Proceeds and Unencumbered Commercial Tort Claims, but in each case subject and
<br />subordinate in all respects to the Carve -Out;
<br />(ii) Liens Priming Certain Preoetition Secured Parties' Liens. Pursuant
<br />to section 364(d)(1) of the Bankruptcy Code, and subject and subordinate in all respects
<br />to the Carve -Out, a valid, binding, continuing, enforceable, fully -perfected first priority
<br />to a valid, properly perfected lien of the Prepetition Secured Parties as of the Petition Date
<br />("Unencumbered Commercial Tort Claims")) in accordance with the DIP Credit Agreement
<br />and this Final Order, subject only to the Carve -Out. The DIP Superpriority Claims shall be
<br />entitled to the full protection of section 364(e) of the Bankruptcy Code in the event that the
<br />Interim Order or any provision thereof, or this Final Order or any provision hereof, is vacated,
<br />reversed or modified, on appeal or otherwise. Subject to the Carve -Out in all respects, the DIP
<br />Superpriority Claims shall be senior to the Adequate Protection 507(b) Claims (as defined
<br />below).
<br />12. DIP Liens.
<br />(a) D/P Liens. As security for the DIP Obligations, effective and perfected
<br />upon the date of the Interim Order and without the necessity of the execution, recordation or
<br />filing by the Credit Parties or the DIP Collateral Agent of mortgages, security agreements,
<br />control agreements, pledge agreements, financing statements or other similar documents, any
<br />notation of certificates of title for a titled good or the possession or control by the DIP Collateral
<br />Agent of, or over, any DIP Collateral, or any other action, the following security interests and
<br />liens (all such liens and security interests granted to the DIP Collateral Agent, for its benefit and
<br />for the benefit of the DIP Lenders, pursuant to this Final Order and the DIP Documents (as
<br />defined in the Motion), the "DIP Liens") are hereby granted to the DIP Collateral Agent for its
<br />own benefit and the benefit of the DIP Lenders (all property identified in clauses (i){iii) below
<br />being collectively referred to as the "DIP Collateral"):
<br />(i) Liens on Unencumbered Prooertv. Subject and subordinate in all
<br />respects to the Carve -Out, pursuant to section 364(ex2) of the Bankruptcy Code, a valid,
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<br />priming security interest in and lien upon all pre- and postpetition property of the Credit
<br />Parties of the same nature, scope, and type as the Prepetition Collateral, regardless of
<br />where located, regardless of whether or not any liens on such assets are voided, avoided,
<br />invalidated, lapsed or unperfected, which security interest and lien shall prime the
<br />Prepetition Liens (the "DIP Priming Liens-). Notwithstanding anything herein to the
<br />contrary, the DIP Priming Liens shall be (A) subject and junior to the Carve -Out in all
<br />respects and shall otherwise be junior only to Permitted Liens, 14 (13) senior in all respects
<br />to the other Prepetition Liens on DIP Collateral, (C) senior to any Adequate Protection
<br />Liens on DIP Collateral and (D) not subordinate to any lien, security interest or mortgage
<br />that is avoided and preserved for the benefit of the Debtors and their estates under section
<br />551 of the Bankruptcy Code. The Prepetition Liens with respect to the Prepetition
<br />Collateral shall be primed by and made subject and subordinate to the Carve -Out and the
<br />DIP Priming Liens;
<br />(iii) Liens Junior to Certain Other Liens. Pursuant to section 364(c)(3)
<br />of the Bankruptcy Code, and subject and subordinate in all respects to the Carve -Out, a
<br />valid, binding, continuing, enforceable, fully -perfected junior security interest in and lien
<br />upon pre- and postpetition property of the Credit Parties that, on or as of the Petition
<br />Date, is subject to valid, perfected and non -avoidable senior Permitted Liens or valid and
<br />non -avoidable senior liens in existence immediately prior to the Petition Date that are
<br />perfected subsequent to the Petition Date as permitted by section 546(b) of the
<br />" Notwithstanding anything to the contrary in this Order, to the extent that Komatsu Financial Limited Partnership
<br />and Caterpillar Financial Services Corporation have valid, binding, enforceable, properly perfected, and unavoidable
<br />firs) priority security interests in their respective collateral, those security interests constitute Permitted Liens that
<br />are not primed by ule DIP Priming Liens.
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