LENDERS PURSUANT TO THIS SECURITY AGREEMENT, THE INTERIM ORDER, THE FINAL ORDER,
AND THE OTHER LOAN DOCUMENTS (SPECIFICALLY INCLUDING BUT NOT LIMITED TO THE
EXISTENCE, PERFECTION, AND PRIORITY OF THE LIENS AND SECURITY INTERESTS PROVIDED
HEREIN AND THEREIN, AND THE ADMINISTRATIVE EXPENSE CLAIM 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
GRANTORS (PURSUANT TO SECTION 364 OF THE BANKRUPTCY CODE OR OTHERWISE), OR BY
ANY DISMISSAL OR CONVERSION OF ANY OF THE PREPACKAGED CHAPTER 11 CASES, OR BY
ANY OTHER ACT OR OMISSION WHATSOEVER.
WITHOUT LIMITATION, NOTWITHSTANDING ANY
SUCH ORDER, FINANCING, EXTENSION, INCURRENCE, DISMISSAL, CONVERSION, ACT OR
OMISSION:
(I)
SUBJECT TO THE CARVE-OUT EXPENSE
PROVISIONS OF THE CREDIT AGREEMENT, NO COSTS OR EXPENSES OF ADMINISTRATION WHICH
HAVE BEEN OR MAY BE INCURRED IN THE PREPACKAGED CHAPTER 11 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
AGENT OR LENDERS AGAINST THE GRANTORS IN RESPECT OF ANY OBLIGATION; AND
(II)
THE LIENS AND SECURITY INTERESTS IN FAVOR
OF THE AGENT AND LENDERS SET FORTH IN THIS SECTION 2 AND IN THE LOAN DOCUMENTS
SHALL CONSTITUTE VALID AND PERFECTED FIRST PRIORITY LIENS AND SECURITY
INTERESTS, SUBJECT ONLY TO LIENS PERMITTED UNDER THE CREDIT AGREEMENT, PERMITTED
ENCUMBRANCES AND THE CARVE-OUT EXPENSE PROVISIONS OF THE CREDIT AGREEMENT, AND
SHALL BE PRIOR TO ALL OTHER LIENS AND INTERESTS, NOW EXISTING OR HEREAFTER
ARISING, IN FAVOR OF ANY OTHER CREDITOR OR ANY OTHER PERSON WHATSOEVER.
3
3.
AGENT'S AND LENDERS' RIGHTS;
LIMITATIONS ON AGENT'S AND LENDERS' OBLIGATIONS.
(A)
IT IS EXPRESSLY AGREED BY GRANTORS THAT, ANYTHING HEREIN OR IN ANY
OTHER LOAN DOCUMENT TO THE CONTRARY NOTWITHSTANDING, EACH GRANTOR SHALL REMAIN
LIABLE UNDER EACH OF ITS CONTRACTUAL OBLIGATIONS, INCLUDING ALL LICENSES, TO
OBSERVE AND PERFORM ALL THE CONDITIONS AND OBLIGATIONS TO BE OBSERVED AND
PERFORMED BY IT THEREUNDER.
NEITHER AGENT NOR ANY LENDER SHALL HAVE ANY
OBLIGATION OR LIABILITY UNDER ANY CONTRACTUAL OBLIGATION BY REASON OF OR ARISING
OUT OF THIS SECURITY AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE GRANTING HEREIN
OF A LIEN THEREON OR THE RECEIPT BY AGENT OR ANY LENDER OF ANY PAYMENT RELATING
TO ANY CONTRACTUAL OBLIGATION PURSUANT HERETO.
NEITHER AGENT NOR ANY LENDER
SHALL BE REQUIRED OR OBLIGATED IN ANY MANNER TO PERFORM OR FULFILL ANY OF THE
OBLIGATIONS OF ANY GRANTOR UNDER OR PURSUANT TO ANY CONTRACTUAL OBLIGATION, OR
TO MAKE ANY PAYMENT, OR TO MAKE ANY INQUIRY AS TO THE NATURE OR THE SUFFICIENCY
OF ANY PAYMENT RECEIVED BY IT OR THE SUFFICIENCY OF ANY PERFORMANCE BY ANY PARTY
UNDER ANY CONTRACTUAL OBLIGATION, OR TO PRESENT OR FILE ANY CLAIMS, OR TO TAKE
ANY ACTION TO COLLECT OR ENFORCE ANY PERFORMANCE OR THE PAYMENT OF ANY AMOUNTS
WHICH MAY HAVE BEEN ASSIGNED TO IT OR TO WHICH IT MAY BE