Common use of Agreements Regarding Actions to Perfect Liens Clause in Contracts

Agreements Regarding Actions to Perfect Liens. Each of the Working Capital Representative and the Term Loan Representative hereby acknowledges that, to the extent that it holds, or a third party holds on its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over Common Collateral pursuant to the Working Capital Security Documents or the Term Loan Security Documents, as applicable, such possession or control is also for the benefit of the Term Loan Representative and the other Term Loan Secured Parties or the Working Capital Representative and the other Working Capital Secured Parties, as applicable, and the Senior Representative agrees to act as agent for the benefit of the Junior Secured Parties under each control agreement entered into or control arrangement with respect to any such Common Collateral, in each case, solely to the extent required to perfect their security interest in such Common Collateral. Nothing in the preceding sentence shall be construed to impose any duty (including, without limitation, any fiduciary duty or other implied duty) on the Working Capital Representative or the Term Loan Representative (or any third party acting on either such Person’s behalf) with respect to such Common Collateral or provide the Term Loan Representative, any other Term Loan Secured Party, the Working Capital Representative or any other Working Capital Secured Party, as applicable, with any rights with respect to such Common Collateral beyond those specified in this Agreement, the Working Capital Security Documents and the Term Loan Security Documents, as applicable, provided that subsequent to the occurrence of the Working Capital Obligations Payment Date (so long as the Term Loan Obligations Payment Date shall not have occurred), the Working Capital Representative shall (i) deliver to the Term Loan Representative, at the Loan Parties’ sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Term Loan Documents or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs; provided, further, that subsequent to the occurrence of the Term Loan Obligations Payment Date (so long as the Working Capital Obligations Payment Date shall not have occurred), the Term Loan Representative shall (i) deliver to the Working Capital Loan Representative, at the Loan Parties’ sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Working Capital Documents or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs. The provisions of this Agreement are intended solely to govern the respective Lien priorities as between the Working Capital Secured Parties and the Term Loan Secured Parties and shall not impose on the Working Capital Secured Parties or the Term Loan Secured Parties any obligations in respect of the disposition of any Common Collateral (or any proceeds thereof) that would conflict with prior perfected Liens or any claims thereon in favor of any other Person that is not a Secured Party. Nothing in the first sentence of this paragraph shall (i) be construed to create any liability of the Working Capital Secured Parties to any of the Term Loan Secured Parties by reason of actions taken with respect to the creation, perfection or continuation of the security interest on any Working Capital Priority Collateral, actions with respect to the occurrence of an “Event of Default” under the Loan Documents, actions with respect to the foreclosure upon, sale, release, or depreciation of, or failure to realize upon, any of the Working Capital Priority Collateral or action with respect to the use or protection of the Working Capital Priority Collateral or (ii) be construed to create any liability of the Term Loan Secured Parties to any of the Working Capital Secured Parties by reason of actions taken with respect to the creation, perfection or continuation of the security interest on any Term Loan Priority Collateral, actions with respect to the occurrence of an “Event of Default” under the Loan Documents, actions with respect to the foreclosure upon, sale, release, or depreciation of, or failure to realize upon, any of the Term Loan Priority Collateral or action with respect to the use or protection of the Term Loan Priority Collateral.

Agreements Regarding Actions to Perfect Liens. Each of the Working Capital Representative ABL Agent and the Term Loan Representative Indenture Agent hereby acknowledges that, to the extent that it holds, or a third party holds on its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over Common Collateral pursuant to the Working Capital ABL Security Documents or the Term Loan Security Indenture Collateral Documents, as applicable, such possession or control is also for the benefit of the Term Loan Representative Indenture Agent and the other Term Loan Indenture Secured Parties or the Working Capital Representative ABL Agent and the other Working Capital ABL Secured Parties, as applicable, and the Senior Representative agrees to act as agent for the benefit of the Junior Secured Parties under each control agreement entered into or control arrangement with respect to any such Common Collateral, in each case, solely to the extent required to perfect their security interest in such Common Collateral. Nothing in the preceding sentence shall be construed to impose any duty (including, without limitation, any fiduciary duty or other implied duty) on the Working Capital Representative ABL Agent or the Term Loan Representative Indenture Agent (or any third party acting on either such Person’s behalf) with respect to such Common Collateral or provide the Term Loan Representative, any other Term Loan Secured Party, the Working Capital Representative Indenture Agent or any other Working Capital Indenture Secured Party or the ABL Agent or any other ABL Secured Party, as applicable, with any rights with respect to such Common Collateral beyond those expressly specified in this Agreement, the Working Capital Security Documents and the Term Loan Security Documents, as applicable, provided that (i) subsequent to the occurrence of the Working Capital ABL Obligations Payment Date (so long as if the Term Loan Indenture Obligations Payment Date shall has not have occurred), the Working Capital Representative ABL Agent shall (iA) deliver to the Term Loan RepresentativeIndenture Agent, at the Loan Parties’ Company’s sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Term Loan Indenture Documents or (iiB) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs; provided, further, that and (ii) subsequent to the occurrence of the Term Loan Indenture Obligations Payment Date (so long as if the Working Capital ABL Obligations Payment Date shall has not have occurred), the Term Loan Representative Indenture Agent shall (iA) deliver to the Working Capital Loan RepresentativeABL Agent, at the Loan Parties’ Company’s sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Working Capital ABL Documents or (iiB) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs. The ; and provided, further, that the provisions of this Agreement are intended solely to govern the respective Lien priorities as between the Working Capital ABL Secured Parties and the Term Loan Indenture Secured Parties and shall not impose on the Working Capital ABL Secured Parties or the Term Loan Indenture Secured Parties any obligations in respect of the disposition of any Common Collateral (or any proceeds thereof) that would conflict with prior perfected Liens or any claims thereon in favor of any other Person that is not a Secured Party. Nothing in the first sentence of this paragraph shall (i) be construed to create any liability of the Working Capital Secured Parties to any of the Term Loan Secured Parties by reason of actions taken with respect to the creation, perfection or continuation of the security interest on any Working Capital Priority Collateral, actions with respect to the occurrence of an “Event of Default” under the Loan Documents, actions with respect to the foreclosure upon, sale, release, or depreciation of, or failure to realize upon, any of the Working Capital Priority Collateral or action with respect to the use or protection of the Working Capital Priority Collateral or (ii) be construed to create any liability of the Term Loan Secured Parties to any of the Working Capital Secured Parties by reason of actions taken with respect to the creation, perfection or continuation of the security interest on any Term Loan Priority Collateral, actions with respect to the occurrence of an “Event of Default” under the Loan Documents, actions with respect to the foreclosure upon, sale, release, or depreciation of, or failure to realize upon, any of the Term Loan Priority Collateral or action with respect to the use or protection of the Term Loan Priority Collateral.

Agreements Regarding Actions to Perfect Liens. Each of the Working Capital ABL Representative and the Term Loan Representative hereby acknowledges that, to the extent that it holds, or a third party holds on its behalf, physical possession of or “control” (as defined in the Uniform Commercial CodeCode or the Securities Transfer Act, 2006 (Ontario)) over Common Collateral pursuant to the Working Capital ABL Security Documents or the Term Loan Security Documents, as applicable, such possession or control is also for the benefit of the Term Loan Representative and the other Term Loan Secured Parties or the Working Capital ABL Representative and the other Working Capital ABL Secured Parties, as applicable, and the Senior Representative agrees to act as agent for the benefit of the Junior Secured Parties under each control agreement entered into or control arrangement with respect to any such Common Collateral, in each case, solely to the extent required to perfect their security interest (if any) in such Common CollateralCollateral (subject to the Lien Priorities and other terms hereof). Nothing in the preceding sentence shall be construed to impose any duty (including, without limitation, any fiduciary duty or other implied duty) on the Working Capital ABL Representative or the Term Loan Representative (or any third party acting on either such Person’s behalf) with respect to such Common Collateral or provide the Term Loan Representative, any other Term Loan Secured Party, the Working Capital ABL Representative or any other Working Capital ABL Secured Party, as applicable, with any rights with respect to such Common Collateral beyond those specified in this Agreement, the Working Capital ABL Security Documents and the Term Loan Security Documents, as applicable, provided that subsequent to the occurrence of the Working Capital ABL Obligations Payment Date (so long as the Term Loan Obligations Payment Date shall not have occurred), the Working Capital ABL Representative shall (ia) deliver to the Term Loan Representative, at the Loan Parties’ sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Term Loan Documents or (iib) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs; provided, further, that subsequent to the occurrence of the Term Loan Obligations Payment Date (so long as the Working Capital ABL Obligations Payment Date shall not have occurred), the Term Loan Representative shall (i) deliver to the Working Capital Loan ABL Representative, at the Loan Parties’ sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Working Capital ABL Documents or (iii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs; provided, further, that (x) prior to the occurrence of the Term Loan Obligations Payment Date, upon the request of the Term Loan Representative or the Company, the ABL Representative shall turn over to the Term Loan Representative any Term Loan Priority Collateral of which it has physical possession, and (y) prior to the occurrence of the ABL Obligations Payment Date, upon the request of the ABL Representative or the Company, the Term Loan Representative shall turn over to the ABL Representative any ABL Priority Collateral of which it has physical possession. The provisions of this Agreement are intended solely to govern the respective Lien priorities as between the Working Capital ABL Secured Parties and the Term Loan Secured Parties and shall not impose on the Working Capital ABL Secured Parties or the Term Loan Secured Parties any obligations in respect of the disposition of any Common Collateral (or any proceeds thereof) that would conflict with prior perfected Liens or any claims thereon in favor of any other Person that is not a Secured Party. Nothing in the first sentence of this paragraph shall (i) be construed to create any liability of the Working Capital Secured Parties to any of the Term Loan Secured Parties by reason of actions taken with respect to the creation, perfection or continuation of the security interest on any Working Capital Priority Collateral, actions with respect to the occurrence of an “Event of Default” under the Loan Documents, actions with respect to the foreclosure upon, sale, release, or depreciation of, or failure to realize upon, any of the Working Capital Priority Collateral or action with respect to the use or protection of the Working Capital Priority Collateral or (ii) be construed to create any liability of the Term Loan Secured Parties to any of the Working Capital Secured Parties by reason of actions taken with respect to the creation, perfection or continuation of the security interest on any Term Loan Priority Collateral, actions with respect to the occurrence of an “Event of Default” under the Loan Documents, actions with respect to the foreclosure upon, sale, release, or depreciation of, or failure to realize upon, any of the Term Loan Priority Collateral or action with respect to the use or protection of the Term Loan Priority Collateral.

Agreements Regarding Actions to Perfect Liens. Each of the Working Capital (a) The ABL Representative and the each Term Loan Representative hereby acknowledges that, to the extent that it holds, or a third party holds on its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over over, or is otherwise noted as a lienholder on any certificate of title constituting, Common Collateral pursuant to the Working Capital ABL Security Documents or the Term Loan Security Documents, as applicable, such possession or control is also for the benefit of the each Term Loan Representative and the other Term Loan Secured Parties or the Working Capital ABL Representative and the other Working Capital ABL Secured Parties, as applicable, and the Senior Representative each agrees to act hold or control such Common Collateral as gratuitous bailee and as non-fiduciary agent for the benefit Term Loan Representatives or the ABL Representative, as applicable (such bailment and agency being intended, among other things, to satisfy the requirements of Section 9-313(c), 9-104, 9-105, 9-106 and 9-107 of the Junior Secured Parties under each control agreement entered into or control arrangement with respect to any such Common Collateral, in each caseUCC and applicable certificate of title laws), solely for the purpose of perfecting the security interest (including any second-priority or third-priority, as the case may be, security interest) granted under the Term Loan Documents and the ABL Documents, as applicable, subject to the extent required to perfect their security interest terms and conditions of this Section 2.6 (either the ABL Representative or the relevant Term Loan Representative acting in such Common Collateralcapacity as a gratuitous bailee, the “Control Representative”). Nothing in the preceding sentence this Section 2.6 shall be construed to impose any duty (including, without limitation, any fiduciary duty or other implied duty) on the Working Capital ABL Representative or the any Term Loan Representative (or any third party acting on either such Person’s behalf) or create any fiduciary relationship with respect to such Common Collateral or provide the any Term Loan Representative, any other Term Loan Secured Party, the Working Capital ABL Representative or any other Working Capital ABL Secured Party, as applicable, with any rights with respect to such Common Collateral beyond those specified in this Agreement, the Working Capital ABL Security Documents and the Term Loan Security Documents, as applicable, provided that subsequent to the occurrence of the Working Capital ABL Obligations Payment Date Date, the ABL Representative shall (so long as i) first, if the Term Loan Obligations Payment Date shall has not have occurred), the Working Capital Representative shall (i) deliver to the Designated Term Loan Representative, at the Loan Parties’ sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Term Loan Documents or until the Term Loan Obligations Payment Date has occurred and (ii) second, to the extent both the ABL Obligations Payment Date and the Term Loan Obligations Payment Date have occurred, deliver to the Borrowers or direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs; provided, further, that subsequent to the occurrence of the Term Loan Obligations Payment Date (so long as the Working Capital Obligations Payment Date shall not have occurred)Date, the relevant Term Loan Representative shall (i) first, if the ABL Obligations Payment Date has not occurred, deliver to the Working Capital Loan ABL Representative, at the Loan Parties’ sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Working Capital ABL Documents or until the ABL Obligations Payment Date has occurred and (ii) second, to the extent both the Term Loan Obligations Payment Date and the ABL Obligations Payment Date have occurred, deliver to the Borrowers or direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs. The provisions of this Agreement are intended solely to govern the respective Lien priorities as between the Working Capital ABL Secured Parties and the Term Loan Secured Parties and shall not impose on the Working Capital ABL Secured Parties or the Term Loan Secured Parties any obligations in respect of the disposition of any Common Collateral (or any proceeds thereof) that would conflict with prior perfected Liens or any claims thereon in favor of any other Person that is not a Secured Party. Nothing in the first sentence of this paragraph shall (i) be construed to create any liability of the Working Capital Secured Parties to any of the Term Loan Secured Parties by reason of actions taken with respect to the creation, perfection or continuation of the security interest on any Working Capital Priority Collateral, actions with respect to the occurrence of an “Event of Default” under the Loan Documents, actions with respect to the foreclosure upon, sale, release, or depreciation of, or failure to realize upon, any of the Working Capital Priority Collateral or action with respect to the use or protection of the Working Capital Priority Collateral or (ii) be construed to create any liability of the Term Loan Secured Parties to any of the Working Capital Secured Parties by reason of actions taken with respect to the creation, perfection or continuation of the security interest on any Term Loan Priority Collateral, actions with respect to the occurrence of an “Event of Default” under the Loan Documents, actions with respect to the foreclosure upon, sale, release, or depreciation of, or failure to realize upon, any of the Term Loan Priority Collateral or action with respect to the use or protection of the Term Loan Priority Collateral.

Agreements Regarding Actions to Perfect Liens. (a) Each of the Working Capital ABL Representative and the Term Loan Representative hereby acknowledges that, to the extent that it holds, or a third party holds on its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over over, or is otherwise noted as a lienholder on any certificate of title constituting, Common Collateral pursuant to the Working Capital ABL Security Documents or the Term Loan Security Documents, as applicable, such possession or control is also for the benefit of the Term Loan Representative and the other Term Loan Secured Parties or the Working Capital ABL Representative and the other Working Capital ABL Secured Parties, as applicable, and the Senior Representative agrees each agree to act hold or control such Common Collateral as gratuitous bailee and as non-fiduciary agent for the benefit Term Loan Representative or the ABL Representative, as applicable (such bailment and agency being intended, among other things, to satisfy the requirements of Section 9-313(c), 9-104, 9-105, 9-106 and 9-107 of the Junior Secured Parties under each control agreement entered into or control arrangement with respect to any such Common Collateral, in each caseUCC and applicable certificate of title laws), solely for the purpose of perfecting the security interest (including any second-priority security interest) granted under the Term Loan Documents and the ABL Documents, as applicable, subject to the extent required to perfect their security interest terms and conditions of this Section 2.6 (either the ABL Representative or the Term Loan Representative acting in such Common Collateralcapacity as a gratuitous bailee, the “Control Representative”). Nothing in the preceding sentence this Section 2.6, shall be construed to impose any duty (including, without limitation, any fiduciary duty or other implied duty) on the Working Capital ABL Representative or the Term Loan Representative (or any third party acting on either such Person’s behalf) or create any fiduciary relationship with respect to such Common Collateral or provide the Term Loan Representative, any other Term Loan Secured Party, the Working Capital ABL Representative or any other Working Capital ABL Secured Party, as applicable, with any rights with respect to such Common Collateral beyond those specified in this Agreement, the Working Capital ABL Security Documents and the Term Loan Security Documents, as applicable, provided that subsequent to the occurrence of the Working Capital ABL Obligations Payment Date (so long as the Term Loan Obligations Payment Date shall not have occurred), the Working Capital ABL Representative shall (i) deliver to the Term Loan Representative, at the Loan Parties’ sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Term Loan Documents or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs; provided, further, that subsequent to the occurrence of the Term Loan Obligations Payment Date (so long as the Working Capital ABL Obligations Payment Date shall not have occurred), the Term Loan Representative shall (i) deliver to the Working Capital Loan ABL Representative, at the Loan Parties’ sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Working Capital ABL Documents or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs. The provisions of this Agreement are intended solely to govern the respective Lien priorities as between the Working Capital ABL Secured Parties and the Term Loan Secured Parties and shall not impose on the Working Capital ABL Secured Parties or the Term Loan Secured Parties any obligations in respect of the disposition of any Common Collateral (or any proceeds thereof) that would conflict with prior perfected Liens or any claims thereon in favor of any other Person that is not a Secured Party. Nothing in the first sentence of this paragraph shall (i) be construed to create any liability of the Working Capital Secured Parties to any of the Term Loan Secured Parties by reason of actions taken with respect to the creation, perfection or continuation of the security interest on any Working Capital Priority Collateral, actions with respect to the occurrence of an “Event of Default” under the Loan Documents, actions with respect to the foreclosure upon, sale, release, or depreciation of, or failure to realize upon, any of the Working Capital Priority Collateral or action with respect to the use or protection of the Working Capital Priority Collateral or (ii) be construed to create any liability of the Term Loan Secured Parties to any of the Working Capital Secured Parties by reason of actions taken with respect to the creation, perfection or continuation of the security interest on any Term Loan Priority Collateral, actions with respect to the occurrence of an “Event of Default” under the Loan Documents, actions with respect to the foreclosure upon, sale, release, or depreciation of, or failure to realize upon, any of the Term Loan Priority Collateral or action with respect to the use or protection of the Term Loan Priority Collateral.

Agreements Regarding Actions to Perfect Liens. Each (a) The Second Priority Representative on behalf of itself and the other Second Priority Secured Parties agrees that UCC-1 financing statements, patent, trademark or copyright filings or other filings or recordings filed or recorded by or on behalf of the Working Capital Second Priority Representative shall be in form satisfactory to the First Priority Representative. (b) The Second Priority Representative agrees on behalf of itself and the other Second Priority Secured Parties that all mortgages, deeds of trust, deeds and similar instruments (collectively, “mortgages”) now or thereafter filed against real property in favor of or for the benefit of the Second Priority Representative shall be in form satisfactory to the First Priority Representative and shall contain the Term following notation: “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, N.A., as Administrative Agent, and its successors and assigns, in such property, in accordance with the provisions of the Intercreditor Agreement dated as of October ___, 2009 among JPMorgan Chase Bank, N.A., as Administrative Agent, U.S. Bank National Association, as Collateral Agent, and the Loan Parties referred to therein, as amended from time to time.” (c) The First Priority Representative hereby acknowledges that, to the extent that it holds, or a third party holds on its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over Common Collateral pursuant to the Working Capital Security Documents or the Term Loan First Priority Security Documents, as applicable, such possession or control is also for the benefit of the Term Loan Second Priority Representative and the other Term Loan Second Priority Secured Parties or the Working Capital Representative and the other Working Capital Secured Parties, as applicable, and the Senior Representative agrees to act as agent for the benefit of the Junior Secured Parties under each control agreement entered into or control arrangement with respect to any such Common Collateral, in each case, solely to the extent required to perfect their security interest in such Common Collateral. Nothing in the preceding sentence shall be construed to impose any duty (including, without limitation, any fiduciary duty or other implied duty) on the Working Capital Representative or the Term Loan First Priority Representative (or any third party acting on either such Person’s its behalf) with respect to such Common Collateral or provide the Term Loan Representative, any other Term Loan Secured Party, the Working Capital Second Priority Representative or any other Working Capital Second Priority Secured Party, as applicable, Party with any rights with respect to such Common Collateral beyond those specified in this Agreement, the Working Capital Security Documents Agreement and the Term Loan Second Priority Security Documents, as applicable, provided that subsequent to the occurrence of the Working Capital First Priority Obligations Payment Date (so long as the Term Loan Obligations Payment Date shall not have occurred)Date, the Working Capital First Priority Representative shall promptly upon the request of the Second Priority Representative (i) deliver to the Term Loan Second Priority Representative, at the Loan Parties’ Borrower’s sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Term Loan Second Priority Documents or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs; , and provided, further, that subsequent to the occurrence of the Term Loan Obligations Payment Date (so long as the Working Capital Obligations Payment Date shall not have occurred), the Term Loan Representative shall (i) deliver to the Working Capital Loan Representative, at the Loan Parties’ sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Working Capital Documents or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs. The provisions of this Agreement are intended solely to govern the respective Lien priorities as between the Working Capital First Priority Secured Parties and the Term Loan Second Priority Secured Parties and shall not impose on the Working Capital Secured Parties or the Term Loan First Priority Secured Parties any obligations in respect of the disposition of any Common Collateral (or any proceeds thereof) that would conflict with prior perfected Liens or any claims thereon in favor of any other Person that is not a Secured Party. Nothing in the first sentence of this paragraph shall (i) be construed to create any liability of the Working Capital Secured Parties to any of the Term Loan Secured Parties by reason of actions taken with respect to the creationFurther, perfection or continuation of the security interest on any Working Capital Priority Collateral, actions with respect subsequent to the occurrence of an “Event of Default” under the Loan Documents, actions with respect to First Priority Obligations Payment Date and upon the foreclosure upon, sale, release, or depreciation of, or failure to realize upon, any request of the Working Capital Second Priority Collateral or action with respect to Representative, the use or protection First Priority Representative shall promptly deliver notices of the Working Capital Priority Collateral or (ii) be construed to create any liability of the Term Loan Secured Parties to any of the Working Capital Secured Parties by reason of actions taken with respect to the creation, perfection or continuation of the security interest on any Term Loan Priority Collateral, actions with respect to the occurrence of an “Event of Default” under the Loan Documents, actions with respect First Priority Obligations Payment Date to all third party lien holders entitled to receive such notice pursuant to the foreclosure upon, sale, release, or depreciation of, or failure to realize upon, terms of any of the Term Loan Priority Collateral or action with respect to the use or protection of the Term Loan Priority Collateralapplicable Third Party Intecreditor Agreement.

Agreements Regarding Actions to Perfect Liens. (a) Each of the Working Capital Factoring Representative and the Term Loan Notes Representative hereby acknowledges that, to the extent that it holds, or a third party holds on its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over Common Collateral pursuant to the Working Capital Factoring Security Documents or the Term Loan Notes Security Documents, as applicable, such possession or control is also for the benefit of the Term Loan Notes Representative and the other Term Loan Notes Secured Parties or the Working Capital Factoring Representative and the other Working Capital Factoring Secured Parties, as applicable, and the Senior Representative agrees to act as agent for the benefit of the Junior Secured Parties under each control agreement entered into or control arrangement with respect to any such Common Collateral, in each case, solely to the extent required to perfect their security interest in such Common Collateral. Nothing in the preceding sentence shall be construed to impose any duty (including, without limitation, any fiduciary duty or other implied duty) on the Working Capital Factoring Representative or the Term Loan Notes Representative (or any third party acting on either such Person’s behalf) with respect to such Common Collateral or provide the Term Loan Notes Representative, any other Term Loan Notes Secured Party, the Working Capital Factoring Representative or any other Working Capital Factoring Secured Party, as applicable, with any rights with respect to such Common Collateral beyond those specified in this Agreement, the Working Capital Factoring Security Documents and the Term Loan Notes Security Documents, as applicable, provided that (i) subsequent to the occurrence of the Working Capital Factoring Obligations Payment Date (so long as the Term Loan Notes Obligations Payment Date shall not have occurred), the Working Capital Factoring Representative shall (iA) deliver to the Term Loan Notes Representative, at the Loan Financing Parties’ sole cost and expense, the any Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Term Loan Notes Documents or (iiB) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs; provided, further, that and (ii) subsequent to the occurrence of the Term Loan Notes Obligations Payment Date (so long as the Working Capital Factoring Obligations Payment Date shall not have occurred), the Term Loan Notes Representative shall (iA) deliver to the Working Capital Loan Factoring Representative, at the Loan Financing Parties’ sole cost and expense, the any Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Working Capital Factoring Documents or (iiB) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs. The provisions of this Agreement are intended solely to govern the respective Lien priorities as between the Working Capital Factoring Secured Parties and the Term Loan Notes Secured Parties and shall not impose on the Working Capital Factoring Secured Parties or the Term Loan Notes Secured Parties any obligations in respect of the disposition of any Common Collateral (or any proceeds thereof) that would conflict with prior perfected Liens or any claims thereon in favor of any other Person that is not a Secured Party. Nothing in the first sentence of this paragraph shall (i) be construed to create any liability of the Working Capital Secured Parties to any of the Term Loan Secured Parties by reason of actions taken with respect to the creation, perfection or continuation of the security interest on any Working Capital Priority Collateral, actions with respect to the occurrence of an “Event of Default” under the Loan Documents, actions with respect to the foreclosure upon, sale, release, or depreciation of, or failure to realize upon, any of the Working Capital Priority Collateral or action with respect to the use or protection of the Working Capital Priority Collateral or (ii) be construed to create any liability of the Term Loan Secured Parties to any of the Working Capital Secured Parties by reason of actions taken with respect to the creation, perfection or continuation of the security interest on any Term Loan Priority Collateral, actions with respect to the occurrence of an “Event of Default” under the Loan Documents, actions with respect to the foreclosure upon, sale, release, or depreciation of, or failure to realize upon, any of the Term Loan Priority Collateral or action with respect to the use or protection of the Term Loan Priority Collateral.

Agreements Regarding Actions to Perfect Liens. Each of the Working Capital Representative and the Term Loan (a) The First Priority Representative hereby acknowledges that, to the extent that it holds, or a third party holds on its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over Common Collateral pursuant to the Working Capital Security Documents or the Term Loan First Priority Security Documents, as applicable, such possession or control is also for the benefit of and on behalf of, and the Term Loan First Priority Representative or such third party holds such possession, as gratuitous bailee for the Second Priority Representative and the other Term Loan Second Priority Secured Parties or the Working Capital Representative and the other Working Capital Secured Parties, as applicable, and the Senior Representative agrees to act as agent for the benefit of the Junior Secured Parties under each control agreement entered into or control arrangement with respect to any such Common Collateral, in each case, solely to the extent required to perfect their security interest in such Common CollateralCollateral (such bailment for perfection being intended, among other things, to satisfy the requirements of Sections 8301(a)(2) and 9-313(c) of the Uniform Commercial Code). Nothing in the preceding sentence foregoing shall be construed to impose any duty (including, without limitation, any fiduciary duty or other implied duty) on the Working Capital Representative or the Term Loan First Priority Representative (or any third party acting on either such Person’s its behalf) with respect to such Common Collateral or provide the Term Loan Representative, any other Term Loan Secured Party, the Working Capital Second Priority Representative or any other Working Capital Second Priority Secured Party, as applicable, Party with any rights with respect to such Common Collateral beyond those specified other than for purposes of perfection as provided in this Agreement, the Working Capital Security Documents and the Term Loan Security Documents, as applicableSection 2.3, provided that subsequent to the occurrence of the Working Capital First Priority Obligations Payment Date (so long as the Term Loan Obligations Payment Date shall not have occurred)Date, the Working Capital First Priority Representative shall (i) (a) deliver to the Term Loan Second Priority Representative, at the Loan Parties’ Company’s sole cost and expense, the tangible Common Collateral in its possession or control (together with any necessary endorsements to the extent required by the Term Loan Documents Second Priority Documents) or (iib) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs; , (ii) at the Company’s sole cost and expense, provide notice to the applicable account banks party to control agreements to which Second Priority Representative is also a party pursuant to which First Priority Representative was designated as the control party, that it shall no longer be a controlling party thereunder, (iii) at the Company’s sole cost and expense, notify any applicable insurance carrier that it is no longer entitled to be a loss payee or additional insured under the insurance policies of any Loan Party issued by such insurance carrier and (iv) at the Company’s sole cost and expense, notify any governmental authority involved in any condemnation or similar proceeding involving any Loan Party that the First Priority Representative is no longer entitled to approve any awards granted in such proceeding, and provided, further, that subsequent to the occurrence of the Term Loan Obligations Payment Date (so long as the Working Capital Obligations Payment Date shall not have occurred), the Term Loan Representative shall (i) deliver to the Working Capital Loan Representative, at the Loan Parties’ sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Working Capital Documents or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs. The provisions of this Agreement are intended solely to govern the respective Lien priorities as between the Working Capital First Priority Secured Parties and the Term Loan Second Priority Secured Parties and shall not impose on the Working Capital Secured Parties or the Term Loan First Priority Secured Parties any obligations in respect of the disposition of any Common Collateral (or any proceeds thereof) that would conflict with prior perfected Liens or any claims thereon in favor of any other Person that is not a Secured Party. Nothing in the first sentence of this paragraph shall (i) be construed to create any liability of the Working Capital Secured Parties to any of the Term Loan Secured Parties by reason of actions taken with respect to the creation, perfection or continuation of the security interest on any Working Capital Priority Collateral, actions with respect to the occurrence of an “Event of Default” under the Loan Documents, actions with respect to the foreclosure upon, sale, release, or depreciation of, or failure to realize upon, any of the Working Capital Priority Collateral or action with respect to the use or protection of the Working Capital Priority Collateral or (ii) be construed to create any liability of the Term Loan Secured Parties to any of the Working Capital Secured Parties by reason of actions taken with respect to the creation, perfection or continuation of the security interest on any Term Loan Priority Collateral, actions with respect to the occurrence of an “Event of Default” under the Loan Documents, actions with respect to the foreclosure upon, sale, release, or depreciation of, or failure to realize upon, any of the Term Loan Priority Collateral or action with respect to the use or protection of the Term Loan Priority Collateral.

Agreements Regarding Actions to Perfect Liens. (a) The Purchaser agrees that all mortgages, debentures, deeds of trust, deeds and similar instruments (collectively, “mortgages”) now or hereafter filed against Real Property in favor of or for the benefit of the Purchaser shall contain the following notation: “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Valiant Trust Company, as Senior Debt Representative, in accordance with the provisions of the Intercreditor Agreement dated as of November 27, 2012, as amended from time to time.” (b) Each of the Working Capital Senior Debt Representative and the Term Loan Representative Purchaser hereby acknowledges that, to the extent that it holds, or a third party holds on its behalf, physical possession of or “control” (as defined in the Uniform Commercial CodeUCC and the PPSA) over Common Collateral pursuant to the Working Capital Senior Debt Security Documents or the Term Loan Royal Gold Security Documents, as applicable, such possession or control is also for the benefit of the Term Loan Purchaser or the Senior Debt Representative and the other Term Loan Secured Parties or the Working Capital Representative and the other Working Capital Senior Debt Secured Parties, as applicable, and the Senior Representative agrees to act as agent for the benefit of the Junior Secured Parties under each control agreement entered into or control arrangement with respect to any such Common Collateral, in each case, solely to the extent required to perfect their security interest in such Common Collateral. Nothing in the preceding sentence shall be construed to impose any duty (including, without limitation, any fiduciary duty or other implied duty) on the Working Capital Senior Debt Representative or the Term Loan Representative Purchaser (or any third party acting on either such Person’s 's behalf) with respect to such Common Collateral or provide the Term Loan Representative, any other Term Loan Secured PartyPurchaser, the Working Capital Senior Debt Representative or any other Working Capital Senior Debt Secured Party, as applicable, with any rights with respect to such Common Collateral beyond those specified in this Agreement, the Working Capital Senior Debt Security Documents and the Term Loan Royal Gold Security Documents, as applicable, provided that subsequent to the occurrence of the Working Capital Senior Debt Obligations Payment Date (so long as the Term Loan Royal Gold Obligations Payment Date shall not have occurred), the Working Capital Senior Debt Representative shall (i) deliver to the Term Loan RepresentativePurchaser, at the Loan Parties’ Vendor’s sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Term Loan Royal Gold Documents or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs; provided, further, that subsequent to the occurrence of the Term Loan Royal Gold Obligations Payment Date (so long as the Working Capital Senior Debt Obligations Payment Date shall not have occurred), the Term Loan Representative Purchaser shall (i) deliver to the Working Capital Loan Senior Debt Representative, at the Loan Parties’ Vendor’s sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Working Capital Senior Debt Documents or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs; provided, further, that (i) prior to the occurrence of the Royal Gold Obligations Payment Date, upon the request of the Purchaser, the Senior Debt Representative shall turn over to the Purchaser any Royal Gold Priority Collateral of which it has physical possession, and (ii) prior to the occurrence of the Senior Debt Obligations Payment Date, upon the request of the Senior Debt Representative, the Purchaser shall turn over to the Senior Debt Representative any Senior Debt Priority Collateral of which it has physical possession. The provisions of this Agreement are intended solely to govern the respective Lien priorities as between the Working Capital Senior Debt Secured Parties and the Term Loan Secured Parties Purchaser and shall not impose on the Working Capital Senior Debt Secured Parties or the Term Loan Secured Parties Purchaser any obligations in respect of the disposition of any Common Collateral (or any proceeds thereof) that would conflict with prior perfected Liens or any claims thereon in favor of any other Person that is not a Secured Party. Nothing in the first sentence of this paragraph shall (i) be construed to create any liability of the Working Capital Secured Parties to any of the Term Loan Secured Parties by reason of actions taken with respect to the creation, perfection or continuation of the security interest on any Working Capital Priority Collateral, actions with respect to the occurrence of an “Event of Default” under the Loan Documents, actions with respect to the foreclosure upon, sale, release, or depreciation of, or failure to realize upon, any of the Working Capital Priority Collateral or action with respect to the use or protection of the Working Capital Priority Collateral or (ii) be construed to create any liability of the Term Loan Secured Parties to any of the Working Capital Secured Parties by reason of actions taken with respect to the creation, perfection or continuation of the security interest on any Term Loan Priority Collateral, actions with respect to the occurrence of an “Event of Default” under the Loan Documents, actions with respect to the foreclosure upon, sale, release, or depreciation of, or failure to realize upon, any of the Term Loan Priority Collateral or action with respect to the use or protection of the Term Loan Priority CollateralSECTION 3.