creation or imposition of any Lien upon the property of any
Obligor by reason of the terms of (a) any post-petition contract, agreement,
indenture, or instrument to which such Obligor is a party or which is binding
upon it, in each case which, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect, (b) any Legal Requirement
applicable to such Obligor which could reasonably be expected to have a Material
Adverse Effect, or (c) the certificate of limited partnership, agreement of
limited partnership, certificate of incorporation, bylaws, or other
organizational or constituent documents, as the case may be, of the Borrowers.
Section 8.2
Validity and
Priority of Security Interest; Administrative Priority.
(A)
THE PROVISIONS OF THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS CREATE LIENS UPON THE COLLATERAL IN FAVOR OF THE AGENT, FOR
THE BENEFIT OF THE AGENT AND THE LENDERS, WHICH SHALL BE DEEMED VALID AND
PERFECTED BY ENTRY OF THE FINANCING ORDER WITH RESPECT TO EACH OBLIGOR AND WHICH
SHALL CONSTITUTE CONTINUING LIENS ON THE COLLATERAL HAVING PRIORITY OVER ALL
OTHER LIENS ON THE COLLATERAL (EXCEPT THE CARVE-OUT AND AS PROVIDED IN
SECTION 6.4), SECURING ALL THE OBLIGATIONS.
THE AGENT SHALL NOT BE REQUIRED TO
FILE OR RECORD ANY FINANCING STATEMENTS, MORTGAGES, NOTICES OF LIEN OR SIMILAR
INSTRUMENTS IN ANY JURISDICTION OR FILING OFFICE OR TO TAKE ANY OTHER ACTION IN
ORDER TO VALIDATE OR PERFECT THE LIENS AND SECURITY INTEREST GRANTED BY OR
PURSUANT TO THIS AGREEMENT, THE FINANCING ORDER OR ANY OTHER LOAN DOCUMENT,
EXCEPT (I) THE FINANCING STATEMENT NAMING GGMI AS DEBTOR TO BE FILED WITH THE
SECRETARY OF STATE OF THE STATE OF DELAWARE OR (II) TO THE EXTENT NOT REQUIRED
BY SECTION 6.2(A).
AS OF THE CLOSING DATE, GGMI HAS NOT INCURRED ANY DEBT FOR
BORROWED MONEY THAT IS SECURED BY ONE OR MORE LIENS, EXCEPT FOR THE LIENS
CREATED BY THIS AGREEMENT.
(B)
PURSUANT TO SECTION 364(C)(1) OF THE
BANKRUPTCY CODE, THE OBLIGATIONS OF THE OBLIGORS SHALL AT ALL TIMES CONSTITUTE
ALLOWED ADMINISTRATIVE EXPENSES IN THE CASE, HAVING PRIORITY OVER ALL
ADMINISTRATIVE EXPENSES OF AND UNSECURED CLAIMS AGAINST THE APPLICABLE OBLIGOR
NOW EXISTING OR HEREAFTER ARISING, OF ANY KIND OR NATURE WHATSOEVER, INCLUDING,
WITHOUT LIMITATION, ALL ADMINISTRATIVE EXPENSES OF THE KIND SPECIFIED IN, OR
ARISING OR ORDERED UNDER, SECTIONS 105, 326, 503(B), 506(C), 507(A), 507(B),
546(C), 726, 1113 AND 1114 OF THE BANKRUPTCY CODE, SUBJECT, AS TO PRIORITY, ONLY
TO THE CARVE-OUT AND ANY ADEQUATE PROTECTION LIENS GRANTED PURSUANT TO THE
FINANCING ORDER, AND SHALL AT ALL TIMES BE SENIOR TO THE RIGHTS OF ANY OBLIGOR,
ANY OBLIGOR'S ESTATE, AND ANY SUCCESSOR TRUSTEE OR ESTATE REPRESENTATIVE IN THE
CASE OR ANY SUBSEQUENT PROCEEDING OR CASE UNDER THE BANKRUPTCY CODE.
EACH OF
THE GUARANTORS SET FORTH ON SCHEDULE 1.1B (OTHER THAN THE NON-DEBTOR GUARANTOR),
TOGETHER WITH THE BORROWERS, AND THE NEGATIVE PLEDGE DEBTORS COLLECTIVELY
CONSTITUTE ALL OF THE PERSONS THAT ARE SUBJECT TO THE CASE AS OF MAY 4, 2009.
47
Section 8.3
Corporate Name;
Prior Transactions.