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

Agreements Regarding Actions to Perfect Liens. (i) The ABL Representative agrees on behalf of itself and the other ABL Secured Parties that all mortgages, 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 ABL Representative 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 U.S. Bank National Association, as Term Debt Representative, in accordance with the provisions of the Intercreditor Agreement dated as of July 2, 2009, as amended from time to time." (b) Each 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 Collateral pursuant to its applicable Loan Documents, with respect to the Receivables Buyer, the Receivables Sale Agreement or with respect to the Receivables Representative, the Credit and Security Agreement, such possession or control is also for the benefit of the other Secured Parties who have a Lien thereon, solely to the extent required to perfect their security interest in such Collateral. Nothing in the preceding sentence shall be construed to impose any duty on any Representative (or any third party acting on either such Person's behalf) with respect to such Collateral or provide any Representative or any other Secured Party, with any rights with respect to such Collateral beyond those specified in this Agreement and the applicable Loan Documents, the Receivables Sale Agreement or Credit and Security Agreement to which each is a party, provided that: (i) subsequent to the occurrence of the ABL Obligations Payment Date (so long as the Term Debt Obligations Payment Date shall not have occurred), the ABL Representative shall (A) deliver to the Term Debt Representative, at the Loan Parties' sole cost and expense, the Collateral in its possession or control together with any necessary endorsements to the extent required by the Term Debt Documents or (B) direct and deliver such Collateral as a court of competent jurisdiction otherwise directs; (ii) subsequent to the occurrence of the Term Debt Obligations Payment Date (so long as the ABL Obligations Payment Date shall not have occurred), the Term Debt Representative shall (A) deliver to the ABL Representative, at the Loan Parties' sole cost and expense, the Collateral in its possession or control together with any necessary endorsements to the extent required by the ABL Documents or (B) direct and deliver such Collateral as a court of competent jurisdiction otherwise directs; and (iii) subsequent to the occurrence of the Receivables Obligations Payment Date (so long as the ABL Obligations Payment Date shall not have occurred), the Receivables Representative shall (A) deliver to the ABL Representative, at the Loan Parties' sole cost and expense, the Collateral in its possession or control together with any necessary endorsements to the extent required by the Receivables Documents, (B) if the ABL Obligations Payment Date shall have occurred and the Term Debt Obligations Payment Date shall not have occurred, deliver to the Term Debt Representative, at the Loan Parties' sole cost and expense, the Collateral in its possession or control together with any necessary endorsements to the extent required by the Receivables Documents or (C) direct and deliver such Collateral as a court of competent jurisdiction otherwise directs; provided, further, that (i) prior to the occurrence of the Term Debt Obligations Payment Date, upon the request of the Term Debt Representative or the Company, the ABL Representative, Receivables Representative and the Receivables Buyer shall turn over to the Term Debt Representative any Term Debt Priority Collateral of which it has physical possession, (ii) prior to the occurrence of the ABL Obligations Payment Date, upon the request of the ABL Representative or the Company, the Term Debt Representative, Receivables Representative and the Receivables Buyer shall turn over to the ABL Representative any ABL Priority Collateral of which it has physical possession; and (iii) prior to the occurrence of the Receivables Obligations Payment Date, upon the request of the Receivables Buyer, the Receivables Representative or the Company, the Term Debt Representative and the ABL Representative shall turn over to the Receivables Representative any Receivables Assets or Receivables Priority Collateral of which it has physical possession. The provisions of this Agreement are intended solely to govern the respective Lien priorities as among the Secured Parties and shall not impose on any Secured Parties any obligations in respect of the disposition of any 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.

Agreements Regarding Actions to Perfect Liens. (ia) The ABL Representative agrees on behalf of itself and the other ABL Secured Parties that all mortgages, deeds of trust, deeds and similar instruments (collectively, "mortgages"“Mortgages”) now or hereafter filed against Real Property in favor of or for the benefit of the ABL Representative 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 U.S. Bank National AssociationGreat Rock Capital Partners Management, LLC, as Term Debt Loan Representative, in accordance with the provisions of the Intercreditor Agreement dated as of July 27, 20092023, as amended amended, restated or otherwise modified from time to time."” (b) Each of the 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 Collateral pursuant to its applicable the ABL Security Documents or the Term Loan Security Documents, with respect to the Receivables Buyer, the Receivables Sale Agreement or with respect to the Receivables Representative, the Credit and Security Agreementas applicable, such possession or control is also for the benefit of the Term Loan Representative and the other Term Loan Secured Parties who have a Lien thereonor the ABL Representative and the other ABL Secured Parties, as applicable, solely to the extent required to perfect their security interest in such Collateral. Nothing in the preceding sentence shall be construed to impose any duty on any the ABL Representative or the Term Loan Representative (or any third party acting on either such Person's ’s behalf) with respect to such Collateral or provide the Term Loan Representative, any other Term Loan Secured Party, the ABL Representative or any other ABL Secured Party, as applicable, with any rights with respect to such Collateral beyond those specified in this Agreement Agreement, the ABL Security Documents and the applicable Term Loan Security Documents, the Receivables Sale Agreement or Credit and Security Agreement to which each is a partyas applicable; provided, provided that: (i) that subsequent to the occurrence of the ABL Priority Obligations Payment Date (so long as the Term Debt Loan Priority Obligations Payment Date shall not have occurred), the ABL Representative shall (Ai) deliver to the Term Debt Loan Representative, at the Loan Parties' ’ sole cost and expense, the Collateral in its possession or control together with any necessary endorsements to the extent required by the Term Debt Loan Documents or (Bii) direct and deliver such Collateral as a court of competent jurisdiction otherwise directs; (ii) ; provided, further, that subsequent to the occurrence of the Term Debt Loan Priority Obligations Payment Date (so long as the ABL Priority Obligations Payment Date shall not have occurred), the Term Debt Loan Representative shall (A) deliver to the ABL Loan Representative, at the Loan Parties' ’ sole cost and expense, the Collateral in its possession or control together with any necessary endorsements to the extent required by the ABL Documents or (B) direct and deliver such Collateral as a court of competent jurisdiction otherwise directs; and (iii) subsequent to the occurrence of the Receivables Obligations Payment Date (so long as the ABL Obligations Payment Date shall not have occurred), the Receivables Representative shall (A) deliver to the ABL Representative, at the Loan Parties' sole cost and expense, the Collateral in its possession or control together with any necessary endorsements to the extent required by the Receivables Documents, (B) if the ABL Obligations Payment Date shall have occurred and the Term Debt Obligations Payment Date shall not have occurred, deliver to the Term Debt Representative, at the Loan Parties' sole cost and expense, the Collateral in its possession or control together with any necessary endorsements to the extent required by the Receivables Documents or (C) direct and deliver such Collateral as a court of competent jurisdiction otherwise directs; provided, further, that (i) prior to the occurrence of the Term Debt Obligations Payment Date, upon the request of the Term Debt Representative or the Company, the ABL Representative, Receivables Representative and the Receivables Buyer shall turn over to the Term Debt Representative any Term Debt Priority Collateral of which it has physical possession, (ii) prior to the occurrence of the ABL Obligations Payment Date, upon the request of the ABL Representative or the Company, the Term Debt Representative, Receivables Representative and the Receivables Buyer shall turn over to the ABL Representative any ABL Priority Collateral of which it has physical possession; and (iii) prior to the occurrence of the Receivables Obligations Payment Date, upon the request of the Receivables Buyer, the Receivables Representative or the Company, the Term Debt Representative and the ABL Representative shall turn over to the Receivables Representative any Receivables Assets or Receivables Priority Collateral of which it has physical possession. The provisions of this Agreement are intended solely to govern the respective Lien priorities as among between the ABL Secured Parties and the Term Loan Secured Parties and shall not impose on any the ABL Secured Parties or the Term Loan Secured Parties any obligations in respect of the disposition of any 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.

Agreements Regarding Actions to Perfect Liens. (ia) The ABL Representative agrees on behalf of itself and the other ABL Secured Parties that all mortgages, deeds of trust, deeds and similar instruments (collectively, "mortgages") now or hereafter filed against Real Property in favor of or for the benefit Each of the ABL Representative shall contain and 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 U.S. Bank National Association, as Term Debt Representative, in accordance with the provisions of the Intercreditor Agreement dated as of July 2, 2009, as amended from time to time." (b) Each 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, any Term Loan Collateral, in the case of the ABL Representative, or any Common Collateral pursuant to its applicable in the case of the Term Loan Documents, with respect to the Receivables Buyer, the Receivables Sale Agreement or with respect to the Receivables Representative, the Credit ABL Representative and Security Agreementthe Term Loan Representative, such possession as applicable, each agrees to hold or control is also such Term Loan Collateral or Common Collateral, as applicable, as 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 Sections 9-313(c), 9-104, 9-105, 9-106, and 9-107 of the other Secured Parties who have a Lien thereonUCC 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 or 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 in such Collateralcapacity, the “Control Representative”). Nothing in the preceding sentence this Section 2.6 shall be construed to impose any duty on any the ABL Representative or the Term Loan Representative (or any third party acting on either such Person's ’s behalf) or create any fiduciary relationship with respect to such Term Loan Collateral or Common Collateral, as applicable, or provide the Term Loan Representative, any other Term Loan Secured Party, the ABL Representative or any other ABL Secured Party, as applicable, with any rights with respect to such Term Loan Collateral or Common Collateral, as applicable, beyond those specified in this Agreement Agreement, the ABL Security Documents and the applicable Term Loan Security Documents, the Receivables Sale Agreement or Credit and Security Agreement to which each is a partyas applicable, provided that: (i) that subsequent to the occurrence of the ABL Obligations Payment Date (so long as the Term Debt Loan Obligations Payment Date shall not have occurred), the ABL Representative shall (Ai) deliver to the Term Debt Loan Representative, at the Loan Parties' Grantors’ sole cost and expense, the Term Loan Collateral in its possession or control together with any necessary endorsements to the extent required by the Term Debt Loan Documents or (Bii) direct and deliver such Term Loan Collateral as a court of competent jurisdiction otherwise directs; (ii) ; provided, further, that subsequent to the occurrence of the Term Debt Loan Obligations Payment Date (so long as the ABL Obligations Payment Date shall not have occurred), the Term Debt Loan Representative shall (A) deliver to the ABL Representative, at the Loan Parties' Grantors’ sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the ABL Documents or (B) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs; and (iii) subsequent to the occurrence of the Receivables Obligations Payment Date (so long as the ABL Obligations Payment Date shall not have occurred), the Receivables Representative shall (A) deliver to the ABL Representative, at the Loan Parties' sole cost and expense, the Collateral in its possession or control together with any necessary endorsements to the extent required by the Receivables Documents, (B) if the ABL Obligations Payment Date shall have occurred and the Term Debt Obligations Payment Date shall not have occurred, deliver to the Term Debt Representative, at the Loan Parties' sole cost and expense, the Collateral in its possession or control together with any necessary endorsements to the extent required by the Receivables Documents or (C) direct and deliver such Collateral as a court of competent jurisdiction otherwise directs; provided, further, that (i) prior to the occurrence of the Term Debt Obligations Payment Date, upon the request of the Term Debt Representative or the Company, the ABL Representative, Receivables Representative and the Receivables Buyer shall turn over to the Term Debt Representative any Term Debt Priority Collateral of which it has physical possession, (ii) prior to the occurrence of the ABL Obligations Payment Date, upon the request of the ABL Representative or the Company, the Term Debt Representative, Receivables Representative and the Receivables Buyer shall turn over to the ABL Representative any ABL Priority Collateral of which it has physical possession; and (iii) prior to the occurrence of the Receivables Obligations Payment Date, upon the request of the Receivables Buyer, the Receivables Representative or the Company, the Term Debt Representative and the ABL Representative shall turn over to the Receivables Representative any Receivables Assets or Receivables Priority Collateral of which it has physical possession. The provisions of this Agreement are intended solely to govern the respective Lien priorities as among between the ABL Secured Parties and the Term Loan Secured Parties and shall not impose on any the 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. (b) The ABL Representative hereby agrees that after the ABL Obligations Payment Date and upon the written request of the Term Loan Representative, to the extent that the applicable Account Agreement is in full force and effect and has not been terminated, the ABL Representative shall continue to act as the Control Representative for the Term Loan Representative (solely for the purpose of perfecting the security interest granted under the Term Loan Documents and at the expense of the Grantors) with respect to the Deposit Account, Commodity Account or Securities Account that is the subject of such Account Agreement, until the earlier to occur of (i) 60 days after the ABL Obligations Payment Date and (ii) the date when an Account Agreement is executed in favor of the Term Loan Representative with respect to such Deposit Account, Commodity Account or Securities Account. The Term Loan Representative hereby agrees that after the Term Loan Obligations Payment Date and upon the written request of the ABL Representative, to the extent that the applicable Account Agreement is in full force and effect and has not been terminated, the Term Loan Representative shall continue to act as the Control Representative for the ABL Representative (solely for the purpose of perfecting the security interest granted under the ABL Documents and at the expense of the Grantors) with respect to the Deposit Account, Commodity Account or Securities Account that is the subject of such Account Agreement, until the earlier to occur of (1) 60 days after the Term Loan Obligations Payment Date and (2) the date when an Account Agreement is executed in favor of the ABL Representative with respect to such Deposit Account, Commodity Account or Securities Account. (c) Until the Term Loan Obligations Payment Date, the ABL Representative agrees that to the extent it is in possession of any Collateral constituting Term Loan Priority Collateral, promptly upon the request of the Term Loan Representative at any time prior to the Term Loan Obligations Payment Date, the ABL Representative shall deliver to the Term Loan Representative any such Term Loan Priority Collateral held by it, and shall use commercially reasonable efforts to cause each ABL Creditor known to it to be holding such Term Loan Priority Collateral to deliver the same to the Term Loan Representative, together with any necessary endorsements without warranty or representation of any kind (or otherwise allow the Term Loan Representative to obtain control of such Term Loan Priority Collateral). (d) Until the ABL Obligations Payment Date, the Term Loan Representative agrees that to the extent it is in possession of any Common Collateral constituting ABL Facility Priority Collateral, promptly upon the request of the ABL Representative at any time prior to the ABL Obligations Payment Date, the Term Loan Representative shall deliver to the ABL Representative any such ABL Facility Priority Collateral held by it, and shall use commercially reasonable efforts to cause each Term Loan Creditor known to it to be holding such ABL Facility Priority Collateral to deliver the same to the ABL Representative, together with any necessary endorsements without warranty or representation of any kind (or otherwise allow the ABL Representative to obtain control of such ABL Facility Priority Collateral). (e) The ABL Representative shall have no obligation whatsoever to the Term Loan Representative or any Term Loan Creditor to ensure that any Term Loan Collateral is genuine or owned by any Grantor or to preserve rights or benefits of any person except as expressly set forth in this Section 2.6. The duties or responsibilities of the ABL Representative under this Section 2.6 shall be limited solely to holding or controlling the Term Loan Collateral as bailee and non-fiduciary agent in accordance with this Section 2.6 and delivering the Term Loan Collateral upon the ABL Obligations Payment Date as provided in this Section 2.6. The Term Loan Representative shall have no obligation whatsoever to the ABL Representative or any ABL Creditor to ensure that the Common Collateral is genuine or owned by any Grantor or to preserve rights or benefits of any person except as expressly set forth in this Section 2.6. The duties or responsibilities of the Term Loan Representative under this Section 2.6 shall be limited solely to holding or controlling the Common Collateral as bailee and non-fiduciary agent in accordance with this Section 2.6 and delivering the Common Collateral upon the Term Loan Obligations Payment Date as provided in this Section 2.6.