THE EXTENT THAT ANY RIGHTS AND REMEDIES
UNDER THIS SECTION 9.07 WOULD OTHERWISE BE IN VIOLATION OF THE AUTOMATIC STAY OF
SECTION 362 OF THE BANKRUPTCY CODE, SUCH STAY SHALL BE DEEMED MODIFIED, AS SET
FORTH IN THE INTERIM ORDER OR FINAL ORDER, AS APPLICABLE, TO THE EXTENT
NECESSARY TO PERMIT THE ADMINISTRATIVE AGENT TO EXERCISE SUCH RIGHTS AND
REMEDIES.
Section 9.08
Modifications.
(a)
Upon and following entry of the Final Order,
the Liens, lien priority, administrative priorities and other rights and
remedies granted to the Administrative Agent for the benefit of the Lenders
pursuant to this Agreement and the DIP Financing Orders (specifically,
including, but not limited to, the existence, perfection and priority of the
Liens provided herein and therein and the administrative priority provided
herein and therein) shall not be modified, altered or impaired in any manner by
any other financing or extension of credit or incurrence of Debt by any of the
Loan Parties (pursuant to section 364 of the Bankruptcy Code or otherwise), or
by any dismissal or conversion of any of the Cases, or by any other act or
omission whatsoever (other than in connection with any disposition permitted
hereunder).
Without limitation, notwithstanding any such order, financing,
extension, incurrence, dismissal, conversion, act or omission:
(I)
EXCEPT FOR THE CARVE-OUT HAVING PRIORITY
OVER THE SECURED OBLIGATIONS, NO COSTS OR EXPENSES OF ADMINISTRATION WHICH 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 WILL BE
PRIOR TO OR ON A PARITY WITH ANY CLAIM OF THE ADMINISTRATIVE AGENT OR THE
LENDERS AGAINST THE LOAN PARTIES IN RESPECT OF ANY OBLIGATION;
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(II)
THE LIENS AND SECURITY INTERESTS GRANTED
HEREIN AND IN THE DIP FINANCING ORDERS SHALL CONSTITUTE VALID AND PERFECTED
FIRST PRIORITY LIENS AND SECURITY INTERESTS (IF AND TO THE EXTENT PERFECTION MAY
BE ACHIEVED BY THE ENTRY OF THE DIP FINANCING ORDERS) (SUBJECT ONLY TO (A) THE
CARVE-OUT, (B) PERMITTED LIENS IN EXISTENCE ON THE PETITION DATE, (C) LIENS
PERMITTED UNDER SECTION 5.02(A)(V) AND IN EXISTENCE ON THE PETITION DATE AND
(D) ONLY TO THE EXTENT SUCH POST-PETITION 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, IN ACCORDANCE WITH
SUBSECTIONS 364(C)(2) AND (3) AND 364(D) OF THE BANKRUPTCY CODE), AND SHALL BE
PRIOR TO ALL OTHER LIENS AND SECURITY INTERESTS (OTHER THAN THOSE SET FORTH IN
SUB-CLAUSES (A) THROUGH (D) HEREIN), NOW EXISTING OR HEREAFTER ARISING, IN FAVOR
OF ANY OTHER CREDITOR OR ANY OTHER PERSON WHATSOEVER; AND
(III)
THE LIENS AND SECURITY INTERESTS 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 (IF AND TO THE EXTENT PERFECTION MAY BE ACHIEVED BY THE ENTRY
OF THE DIP FINANCING ORDERS).
(B)
NOTWITHSTANDING ANY FAILURE ON THE PART OF
ANY LOAN