ANY MANNER BY ANY OTHER FINANCING OR EXTENSION OF CREDIT OR INCURRENCE OF ANY
INDEBTEDNESS BY ANY OF THE PLEDGORS (PURSUANT TO SECTION 364 OF THE BANKRUPTCY
CODE OR OTHERWISE), OR BY ANY DISMISSAL OR CONVERSION OF ANY CASE, OR BY ANY
OTHER ACT OR OMISSION WHATSOEVER.
WITHOUT LIMITATION, NOTWITHSTANDING ANY SUCH
ORDER, FINANCING, EXTENSION, INCURRENCE, DISMISSAL, CONVERSION, ACT OR OMISSION:
6
(I)
EXCEPT FOR THE CARVE-OUT HAVING PRIORITY
OVER THE OBLIGATIONS, NO COSTS OR EXPENSES OF ADMINISTRATION THAT HAVE BEEN OR
MAY BE INCURRED IN ANY OF THE CASES OR ANY CONVERSION OF THE SAME OR IN ANY
OTHER PROCEEDINGS RELATED THERETO, AND NO PRIORITY CLAIMS, ARE OR SHALL BE PRIOR
TO OR ON A PARITY WITH ANY CLAIM OF THE SECURED CREDITORS AGAINST THE PLEDGORS
IN RESPECT OF ANY OBLIGATION;
(II)
THE LIENS GRANTED HEREIN AND IN THE
FINANCING ORDERS SHALL CONSTITUTE VALID AND PERFECTED FIRST PRIORITY LIENS AND
SECURITY INTERESTS AND SHALL BE PRIOR TO ALL OTHER LIENS, NOW EXISTING OR
HEREAFTER ARISING, IN FAVOR OF ANY OTHER CREDITOR OR ANY OTHER PERSON WHATSOEVER
(SUBJECT ONLY TO (A) VALID, PERFECTED, NONAVOIDABLE AND ENFORCEABLE LIENS
EXISTING AS OF THE PETITION DATE, (B) THE EXTENT SUCH POSTPETITION PERFECTION IS
EXPRESSLY PERMITTED BY THE BANKRUPTCY CODE, VALID, NONAVOIDABLE AND ENFORCEABLE
LIENS EXISTING AS OF THE PETITION DATE, BUT PERFECTED AFTER THE PETITION DATE,
AND (C) THE CARVE-OUT);
(III)
THE LIENS GRANTED HEREUNDER SHALL CONTINUE
VALID AND PERFECTED WITHOUT THE NECESSITY THAT FINANCING STATEMENTS BE FILED OR
THAT ANY OTHER ACTION BE TAKEN UNDER APPLICABLE NONBANKRUPTCY LAW; AND
(IV)
NOTWITHSTANDING ANY FAILURE ON THE PART OF ANY
CREDIT PARTY OR THE SECURED CREDITORS TO PERFECT, MAINTAIN, PROTECT OR ENFORCE
THE LIENS IN THE COLLATERAL GRANTED HEREUNDER, THE FINANCING ORDERS SHALL,
AUTOMATICALLY AND WITHOUT FURTHER ACTION BY ANY PERSON, PERFECT SUCH LIENS
AGAINST THE COLLATERAL.
3.5
PROCEDURES.
(A)
TO THE EXTENT THAT ANY
PLEDGOR AT ANY TIME OR FROM TIME TO TIME OWNS, ACQUIRES OR OBTAINS ANY RIGHT,
TITLE OR INTEREST IN ANY COLLATERAL, SUCH COLLATERAL SHALL AUTOMATICALLY (AND
WITHOUT THE TAKING OF ANY ACTION BY SUCH PLEDGOR) BE PLEDGED PURSUANT TO
SECTION 3.1 OF THIS AGREEMENT AND, IN ADDITION THERETO, SUCH PLEDGOR SHALL (TO
THE EXTENT PROVIDED BELOW) FORTHWITH TAKE THE FOLLOWING ACTIONS AS SET FORTH
BELOW:
(I)
WITH RESPECT TO A CERTIFICATED SECURITY
(OTHER THAN A CERTIFICATED SECURITY CREDITED ON THE BOOKS OF A CLEARING
CORPORATION OR SECURITIES INTERMEDIARY), SUCH PLEDGOR SHALL PHYSICALLY DELIVER
SUCH CERTIFICATED SECURITY TO THE PLEDGEE, ENDORSED TO THE PLEDGEE OR ENDORSED
IN BLANK;
(II)
WITH RESPECT TO AN UNCERTIFICATED SECURITY
(OTHER THAN AN UNCERTIFICATED SECURITY CREDITED ON THE BOOKS OF A CLEARING
CORPORATION OR SECURITIES INTERMEDIARY), SUCH PLEDGOR SHALL CAUSE THE ISSUER OF
SUCH UNCERTIFICATED SECURITY TO DULY AUTHORIZE, EXECUTE, AND DELIVER TO THE
PLEDGEE, AN AGREEMENT FOR THE BENEFIT OF THE PLEDGEE AND THE OTHER SECURED
CREDITORS SUBSTANTIALLY IN THE FORM OF ANNEX E HERETO (APPROPRIATELY COMPLETED
TO THE SATISFACTION OF THE PLEDGEE AND WITH SUCH MODIFICATIONS, IF ANY, AS SHALL
BE SATISFACTORY