Common use of Perfection of DIP Liens and Adequate Protection Liens Clause in Contracts

Perfection of DIP Liens and Adequate Protection Liens. (a) With respect to (i) the Senior DIP Agent, the Senior DIP Lenders, the Pre-Petition First Lien Agent, the Pre-Petition First Lien Secured Lenders, the Existing DIP Agent and the Existing DIP Lenders, pursuant to the Existing DIP Order and continued by this Order, subject to the provisions of Paragraph 8(a) of the Existing DIP Order and paragraph 11(b) above, and (ii) the Supplemental DIP Agent, the Supplemental DIP Lenders, the Pre-Petition Second Lien Notes Trustee and the Pre-Petition Second Lien Noteholders, upon the occurrence of the Effective Date, subject to the provisions of paragraph 11(b) above, the DIP Agents, the Existing DIP Agent, the Pre-Petition First Lien Agent and the Pre-Petition Second Lien Notes Trustee are authorized, but not required, to file or record financing statements, patent filings, trademark filings, copyright filings, mortgages, notices of lien or similar instruments in any jurisdiction, or take possession of or control over assets, or take any other action, in each case, in order to validate and perfect the liens and security interests granted to it hereunder. Whether or not the DIP Agents on behalf of the DIP Lenders, the Existing DIP Agent on behalf of the Existing DIP Lenders, the Pre-Petition First Lien Agent on behalf of the Pre-Petition First Lien Secured Lenders or the Pre-Petition Second Lien Notes Trustee on behalf of the Pre-Petition Second Lien Noteholders, shall, in their sole discretion, choose to file such financing statements, patent filings, trademark filings, copyright filings, mortgages, notices of lien or similar instruments, or take possession of or control over, or otherwise confirm perfection of the liens and security interests granted to it hereunder, such liens and security interests shall be deemed valid, perfected, allowed, enforceable, non-avoidable and not subject to challenge, dispute or subordination, at the time and on the date of entry of the Interim DIP Order, with respect to the Senior DIP Facility and Existing DIP Facility, and immediately upon the occurrence of the Effective Date, with respect to the Supplemental DIP Term Loan Facility. Upon the request of either of the DIP Agents, each of the Pre-Petition First Lien Agent, the Pre-Petition First Lien Secured Lenders, the Pre-Petition Second Lien Notes Trustee and the Pre-Petition Second Lien Noteholders, without any further consent of any party, are authorized to take, execute, deliver and file such instruments (in each case, without representation or warranty of any kind) to enable the DIP Agents to further validate, perfect, preserve and enforce the DIP Liens.

Perfection of DIP Liens and Adequate Protection Liens. (a) With respect Without in any way limiting the automatic validity and effective perfection of the DIP Liens granted pursuant to (i) the Senior DIP Agent, the Senior DIP Lenders, the Pre-Petition First Lien Agent, the Pre-Petition First Lien Secured Lenders, the Existing DIP Agent paragraph 7 hereof and the Existing DIP Lenders, Adequate Protection Liens granted pursuant to the Existing DIP Order and continued by this Order, subject to the provisions of Paragraph 8(a) of the Existing DIP Order and paragraph 11(b) above, and (ii) the Supplemental DIP Agent, the Supplemental DIP Lenders, the Pre-Petition Second Lien Notes Trustee and the Pre-Petition Second Lien Noteholders, upon the occurrence of the Effective Date, subject to the provisions of paragraph 11(b) above15 hereof, the DIP Agents, the Existing DIP Agent, the Pre-Petition First Lien Agent Secured Parties and the Pre-Petition Second Lien Notes Trustee Prepetition Secured Parties are hereby authorized, but not required, to file or record (and to execute in the name of the Debtors and the Prepetition Secured Parties (as applicable), as their true and lawful attorneys, with full power of substitution, to the maximum extent permitted by law) financing statements, patent filings, trademark filings, copyright filings, mortgages, notices of lien or similar instruments in any jurisdiction, including as may be reasonably required or deemed appropriate by the DIP Agent, acting at the direction of the Requisite Lenders, or take possession of or control over assetscash or securities, or to amend or modify security documents, or enter into, amend or modify intercreditor agreements, or to subordinate existing liens and any other similar action or action in connection therewith or take any other action, in each case, action in order to document, validate and perfect the liens and security interests granted to it hereunderthem hereunder the (“Perfection Actions”). Whether or not the DIP Agents Agent, on behalf of the DIP Secured Parties and acting at the direction of the Requisite Lenders, or the Existing DIP Agent on behalf of the Existing DIP LendersPrepetition Secured Parties shall take such Perfection Actions, the Pre-Petition First Lien Agent on behalf of the Pre-Petition First Lien Secured Lenders or the Pre-Petition Second Lien Notes Trustee on behalf of the Pre-Petition Second Lien Noteholders, shall, in their sole discretion, choose to file such financing statements, patent filings, trademark filings, copyright filings, mortgages, notices of lien or similar instruments, or take possession of or control over, or otherwise confirm perfection of the liens and security interests granted to it hereunder, such liens and security interests shall be deemed valid, perfected, allowed, enforceable, non-avoidable and not subject to challenge, dispute or subordination, at the time and on the date of entry of the this Interim DIP Order, with respect to the Senior DIP Facility and Existing DIP Facility, and immediately upon the occurrence of the Effective Date, with respect to the Supplemental DIP Term Loan Facility. Upon the request of either DIP Agent, acting at the direction of the DIP Agents, each of the Pre-Petition First Lien Agent, the Pre-Petition First Lien Secured Requisite Lenders, the Pre-Petition Second Lien Notes Trustee Prepetition Secured Parties and the Pre-Petition Second Lien NoteholdersDebtors, without any further consent of any party, and at the sole cost of the Debtors as set forth herein, are authorized authorized, and such direction is hereby deemed to constitute required direction under the applicable DIP Documents or Prepetition Secured Debt Documents, to take, execute, deliver and file such actions, instruments and agreements (in each case, without representation or warranty of any kind) to enable the DIP Agents Agent to further validate, perfect, preserve and enforce the DIP Liens in all jurisdictions required under the DIP Credit Agreement, including all local law documentation therefor determined to be reasonably necessary by the DIP Agent, acting at the direction of the Requisite Lenders; provided, however, that no action need be taken in a foreign jurisdiction that would jeopardize the validity and enforceability of the Prepetition Liens. All such documents will be deemed to have been recorded and filed as of the Petition Date. To the extent necessary to effectuate the terms of this Interim Order and the DIP Documents, each of the DIP Agent and the Prepetition Agent hereby is deemed to appoint the other (and deemed to have accepted such appointment) to act as its agent with respect to the Collateral (as defined in the DIP Documents) and under the Security Documents (as defined in the DIP Documents) to which they are a party in such capacity, with such powers as are expressly delegated thereto under the DIP Documents and Prepetition Secured Debt Documents, (and even if it involves self-contracting and multiple representation to the extent legally possible), together with such other powers as are reasonably incidental thereto.

Perfection of DIP Liens and Adequate Protection Liens. This Interim Order shall be sufficient and conclusive evidence of the creation, validity, perfection, and priority of all liens granted herein, including the Carve Out, the DIP Liens and the Adequate Protection Liens, without the necessity of filing or recording any financing statement, mortgage, notice, or other instrument or document which may otherwise be required under the law or regulation of any jurisdiction or the taking of any other action (aincluding, for the avoidance of doubt, entering into any deposit account control agreement) With respect to validate or perfect (iin accordance with applicable non-bankruptcy law) the Senior DIP Liens or the Adequate Protection Liens or to entitle the DIP Agent, the Senior DIP Lenders, the Pre-Petition First Lien Agent, the Pre-Petition First Lien Secured Lenders, the Existing DIP Agent and the Existing DIP Lenders, pursuant Prepetition Secured Parties to the Existing DIP Order and continued by this Orderpriorities granted herein. Notwithstanding the foregoing, subject to the provisions of Paragraph 8(a) each of the Existing DIP Order and paragraph 11(b) above, and (ii) the Supplemental DIP Agent, the Supplemental DIP Lenders, the Pre-Petition Second Lien Notes Trustee and the Pre-Petition Second Lien Noteholders, upon the occurrence of the Effective Date, subject to the provisions of paragraph 11(b) above, the DIP Agents, the Existing DIP Prepetition ABL Agent, the Pre-Petition First Lien Agent Prepetition Term Agent, and the Pre-Petition Second Lien Notes Trustee are authorized, but not required, Prepetition IPCo Indenture Trustees is authorized to file or record record, as it in its sole discretion deems necessary or advisable, such financing statements, patent filings, trademark filings, copyright filingssecurity agreements, mortgages, notices of lien or liens, and other similar instruments documents to perfect its respective liens in any jurisdictionaccordance with applicable non-bankruptcy law, or take possession of or control over assets, or take any other action, in each case, in order to validate and perfect the liens and security interests granted to it hereunder. Whether or not the DIP Agents on behalf of the DIP Lenders, the Existing DIP Agent on behalf of the Existing DIP Lenders, the Pre-Petition First Lien Agent on behalf of the Pre-Petition First Lien Secured Lenders or the Pre-Petition Second Lien Notes Trustee on behalf of the Pre-Petition Second Lien Noteholders, shall, in their sole discretion, choose to file all such financing statements, patent filingsmortgages, trademark filingsnotices, copyright filingsand other documents shall be deemed to have been filed or recorded as of the Petition Date; provided, however, that no such filing or recordation shall be necessary or required in order to create or perfect the DIP Liens or the Adequate Protection Liens. The Debtors are authorized and directed to execute and deliver, promptly upon demand to the DIP Agent, the Prepetition ABL Agent, the Prepetition Term Agent, and the Prepetition IPCo Indenture Trustees, all such financing statements, mortgages, notices of lien or similar instrumentsnotices, and other documents as the DIP Agent, the Prepetition ABL Agent, the Prepetition Term Agent, or take possession of or control overthe Prepetition IPCo Indenture Trustees, or otherwise confirm perfection of the liens and security interests granted to it hereunderas applicable, such liens and security interests shall be deemed valid, perfected, allowed, enforceable, non-avoidable and not subject to challenge, dispute or subordination, at the time and on the date of entry of the Interim DIP Order, with respect to the Senior DIP Facility and Existing DIP Facility, and immediately upon the occurrence of the Effective Date, with respect to the Supplemental DIP Term Loan Facilitymay reasonably request. Upon the request of either Each of the DIP Agents, each of the Pre-Petition First Lien Agent, the Pre-Petition First Lien Secured LendersPrepetition ABL Agent, the Pre-Petition Second Lien Notes Trustee Prepetition Term Agent, and the Pre-Petition Second Lien NoteholdersPrepetition IPCo Indenture Trustees, in its discretion, may file a photocopy of this Interim Order as a financing statement with any filing or recording office or with any registry of deeds or similar office, in addition to or in lieu of such financing statements, notices of lien, or similar instrument, and all applicable officials are hereby directed to accept a photocopy of this Interim Order for filing or recordation for such purpose. To the extent the Prepetition ABL Agent, the Prepetition Term Agent, the Prepetition IPCo New Money Notes Indenture Trustee, or the Prepetition IPCo Exchange Notes Indenture Trustee is the secured party under any security agreement, mortgage, landlord waiver, credit card processor notices or agreements, bailee letters, custom broker agreements, financing statement, account control agreements, or any other Prepetition Documents or is listed as loss payee or additional insured under any of the Debtors’ insurance policies, the DIP Agent shall also be deemed without any further consent action to be the secured party or the loss payee or additional insured, as applicable, under such documents. The Prepetition ABL Agent, the Prepetition Term Agent, and the Prepetition IPCo Indenture Trustees, as applicable, shall serve as agents for the DIP Agent for purposes of any party, are authorized to take, execute, deliver and file perfecting the DIP Liens on all DIP Collateral that is of a type such instruments (in each casethat, without representation giving effect to the Bankruptcy Code and this Interim Order, perfection of a lien thereon may be accomplished only by possession or warranty of any kind) to enable the DIP Agents to further validate, perfect, preserve and enforce the DIP Lienscontrol by a secured party.

Perfection of DIP Liens and Adequate Protection Liens. (a) With respect to (i) This Interim Order shall be sufficient and conclusive evidence of the Senior DIP Agentvalidity, perfection and priority of all liens granted herein, including, without limitation, the Senior DIP LendersLiens and the Adequate Protection Liens, without the necessity of execution, filing or recording of any loan document, financing statement, deed of trust, mortgage, notice, control agreement or other instrument or document that may otherwise be required under the law or regulation of any jurisdiction to validate, attach, perfect or prioritize liens (any such instrument or document, a “Security Document”) or the taking of any other action (including, for the avoidance of doubt, entering into any deposit account control agreement) to validate or perfect (in accordance with applicable law) such liens, or to entitle the DIP Secured Parties and the Prepetition Secured Parties to the priorities granted herein. Notwithstanding the foregoing, the Pre-Petition First Lien Agent, the Pre-Petition First Lien Secured Lenders, the Existing DIP Agent and the Existing DIP Lenders, pursuant to the Existing DIP Order and continued by this Order, subject to the provisions of Paragraph 8(a) of the Existing DIP Order and paragraph 11(b) above, and (ii) the Supplemental DIP Agent, the Supplemental DIP Lenders, the Pre-Petition Second Lien Notes Trustee and the Pre-Petition Second Lien Noteholders, upon the occurrence of the Effective Date, subject to the provisions of paragraph 11(b) above, the DIP Prepetition Agents, the Existing DIP Agent, the Pre-Petition First Lien Agent and the Pre-Petition Second Lien Notes Trustee are authorized, but not required, to file or record financing statements, patent filings, trademark filings, copyright filings, mortgages, notices of lien or similar instruments in any jurisdiction, or take possession of or control over assets, or take any other action, in each case, in order to validate and perfect the liens and security interests granted to it hereunder. Whether or not the DIP Agents on behalf of the DIP Lenders, the Existing DIP Agent on behalf of the Existing DIP Lenders, the Pre-Petition First Lien Agent on behalf of the Pre-Petition First Lien Secured Lenders or the Pre-Petition Second Lien Notes Trustee on behalf of the Pre-Petition Second Lien Noteholders, shall, in their sole discretion, choose to file such financing statements, patent filings, trademark filings, copyright filings, mortgages, notices of lien or similar instruments, or take possession of or control over, or otherwise confirm perfection of the liens and security interests granted to it hereunder, such liens and security interests shall be deemed valid, perfected, allowed, enforceable, non-avoidable and not subject to challenge, dispute or subordination, at the time and on the date of entry of the Interim DIP Order, with respect to the Senior DIP Facility and Existing DIP Facility, and immediately upon the occurrence of the Effective Date, with respect to the Supplemental DIP Term Loan Facility. Upon the request of either of the DIP Agents, each of the Pre-Petition First Lien Agent, the Pre-Petition First Lien Secured Lenders, the Pre-Petition Second Lien Notes Trustee and the Pre-Petition Second Lien Noteholders, without any further consent of any party, are authorized to take, execute, deliver file or record (and file the DIP Agent and Prepetition Agents may require the execution, filing or recording), as each, in its sole discretion, deems necessary, such instruments (in each casefinancing statements, without representation or warranty notices of any kind) lien, and other similar documents to enable the DIP Agent and the Prepetition Agents to further validate, perfect, preserve and enforce the DIP Liens, Adequate Protection Liens, or other liens and security interests granted hereunder, perfect in accordance with applicable law or to otherwise evidence such liens, and all such financing statements, notices, and other documents shall be deemed to have been filed or recorded as of the Petition Date; provided that no such filing or recordation shall be necessary or required in order to create or perfect the DIP Liens and/or the Adequate Protection Liens. The Debtors are authorized to execute and deliver promptly upon demand to the DIP Agent and the Prepetition Agents all such financing statements, notices, and other documents as the DIP Agent and the Prepetition Agents may reasonably request. The DIP Agent and the Prepetition Agents, each in its discretion, may file a photocopy of this Interim Order as a financing statement with any filing or recording office or with any registry of deeds or similar office, in addition to or in lieu of such financing statements, notices of lien, or similar instruments. To the extent that any Prepetition Agent is a secured party under any account control agreement, listed as an additional insured, loss payee under any of the Debtors’ insurance policies or is the secured party under any Security Document, the DIP Agent shall also be deemed to be the secured party under each such Security Document, and shall have all the rights and powers attendant to that position (including, without limitation, rights of enforcement), and shall act in that capacity and distribute any proceeds recovered or received subject to the Carve Out and in accordance with the relative lien priorities and terms of this Interim Order and/or the Final Order, as applicable, and the other DIP Loan Documents. The Prepetition Agents shall serve as agent for the DIP Agent solely for the purposes of perfecting its security interests in and liens on all DIP Collateral that is of a type such that perfection of a security interest therein (but for the entry of this Interim Order) may be accomplished only by possession or control by a secured party.

Perfection of DIP Liens and Adequate Protection Liens. (a) With This Interim Order shall be sufficient and conclusive evidence of the priority, perfection, and validity of the DIP Liens, the Adequate Protection Liens, and the other security interests granted herein, effective as of the Petition Date, without any further act and without regard to any other federal, state, or local requirements or law requiring notice, execution, filing, registration, recording, or possession of the DIP Collateral, or other act to validate or perfect such security interest or lien, including, without limitation, entering into any control agreements with any financial institution(s) party to a control agreement or other depository account consisting of DIP Collateral or requirement to register liens on any certificates of title (a “Perfection Act”) required to validate or perfect (in accordance with applicable law) such liens, or to entitle the DIP Secured Parties and the Prepetition Secured Parties to the liens and priorities granted herein. Notwithstanding the foregoing, if the DIP Agent or any of the Prepetition Agents/Trustee (in the latter case, solely with respect to such Adequate Protection Liens), as applicable, shall, in its sole discretion, elect for any reason to file, record, or otherwise effectuate any Perfection Act, then such DIP Agent or Prepetition Agent/Trustee (i) solely with respect to such Adequate Protection Liens), as applicable, is authorized to perform such act, and the Senior Debtors are authorized to perform such act to the extent necessary or required by the DIP AgentDocuments, which act or acts shall be deemed to have been accomplished as of the date and time of entry of this Interim Order notwithstanding the date and time actually accomplished, and, in such event, the Senior subject filing or recording office is authorized to accept, file, or record any document in regard to such act in accordance with applicable law. The DIP LendersAgent or any Prepetition Agent/Trustee (solely with respect to such Adequate Protection Liens), as applicable, may choose to file, record, or present a certified copy of this Interim Order in the same manner as a Perfection Act, which shall be tantamount to a Perfection Act, and, in such event, the Pre-Petition First Lien Agentsubject filing or recording office is authorized to accept, file, or record such certified copy of this Interim Order in accordance with applicable law. Should any of the Pre-Petition First Lien Secured Lenders, the Existing DIP Agent or the Prepetition Agents/Trustee (solely with respect to such Adequate Protection Liens), as applicable, so choose and attempt to file, record, or perform a Perfection Act, no defect or failure in connection with such attempt shall in any way limit, waive, or alter the Existing DIP Lendersvalidity, pursuant to the Existing DIP Order and continued by this Orderenforceability, subject to the provisions of Paragraph 8(a) attachment, priority, or perfection of the Existing DIP Order and paragraph 11(b) above, and (ii) the Supplemental DIP Agent, the Supplemental DIP Lenders, the Pre-Petition Second Lien Notes Trustee and the Pre-Petition Second Lien Noteholders, upon the occurrence of the Effective Date, subject to the provisions of paragraph 11(b) above, the DIP Agents, the Existing DIP Agent, the Pre-Petition First Lien Agent and the Pre-Petition Second Lien Notes Trustee are authorized, but not required, to file or record financing statements, patent filings, trademark filings, copyright filings, mortgages, notices of lien or similar instruments in any jurisdiction, or take possession of or control over assets, or take any other action, in each case, in order to validate and perfect the postpetition liens and security interests granted to it hereunder. Whether or not the DIP Agents on behalf herein by virtue of the DIP Lenders, the Existing DIP Agent on behalf of the Existing DIP Lenders, the Pre-Petition First Lien Agent on behalf of the Pre-Petition First Lien Secured Lenders or the Pre-Petition Second Lien Notes Trustee on behalf of the Pre-Petition Second Lien Noteholders, shall, in their sole discretion, choose to file such financing statements, patent filings, trademark filings, copyright filings, mortgages, notices of lien or similar instruments, or take possession of or control over, or otherwise confirm perfection of the liens and security interests granted to it hereunder, such liens and security interests shall be deemed valid, perfected, allowed, enforceable, non-avoidable and not subject to challenge, dispute or subordination, at the time and on the date of entry of the this Interim DIP Order, with respect to the Senior DIP Facility and Existing DIP Facility, and immediately upon the occurrence of the Effective Date, with respect to the Supplemental DIP Term Loan Facility. Upon the request of either of the DIP Agents, each of the Pre-Petition First Lien Agent, the Pre-Petition First Lien Secured Lenders, the Pre-Petition Second Lien Notes Trustee and the Pre-Petition Second Lien Noteholders, without any further consent of any party, are authorized to take, execute, deliver and file such instruments (in each case, without representation or warranty of any kind) to enable the DIP Agents to further validate, perfect, preserve and enforce the DIP Liens.

Perfection of DIP Liens and Adequate Protection Liens. (a) With respect to (i) the Senior The DIP Agent, the Senior DIP Lenders, the Pre-Petition First Lien Prepetition 2012 Credit Agreement Agent, the Pre-Petition First Lien Secured Lenders, the Existing DIP Prepetition Term Loan Credit Agreement Agent and the Existing DIP Lenders, pursuant to the Existing DIP Order and continued by this Order, subject to the provisions of Paragraph 8(a) of the Existing DIP Order and paragraph 11(b) above, and (ii) the Supplemental DIP Agent, the Supplemental DIP Lenders, the Pre-Petition Prepetition Second Lien Notes Trustee and the Pre-Petition Second Lien Noteholders, upon the occurrence of the Effective Date, subject to the provisions of paragraph 11(b) above, the DIP Agents, the Existing DIP Agent, the Pre-Petition First Lien Agent and the Pre-Petition Second Lien Notes Trustee are hereby authorized, but not required, to file or record financing statements, patent filings, trademark filings, copyright filings, mortgages, notices of lien or similar instruments in any jurisdiction, or take possession of or control over assetsover, or take any other action, in each case, action in order to validate and perfect the liens and security interests granted to it them hereunder, in each case, without the necessity to pay any mortgage recording fee or similar fee or tax. Whether or not the DIP Agents Agent on behalf of the DIP LendersSecured Parties, the Existing DIP Prepetition 2012 Credit Agreement Agent on behalf of the Existing DIP Prepetition 2012 Credit Agreement Lenders, the Pre-Petition First Lien Prepetition Term Loan Credit Agreement Agent on behalf of the Pre-Petition First Lien Secured Prepetition Term Loan Credit Agreement Lenders or and the Pre-Petition Prepetition Second Lien Notes Trustee on behalf of the Pre-Petition Prepetition Second Lien Noteholders, Noteholders shall, in their sole discretion, choose to file such financing statements, patent filings, trademark filings, copyright filings, mortgages, notices of lien or similar instruments, or take possession of or control over, or otherwise confirm perfection of the liens and security interests granted to it them hereunder, such liens and security interests shall be deemed valid, perfected, allowed, enforceable, non-avoidable avoidable, and not subject to challenge, dispute or subordinationsubordination (other than as provided in the Prepetition Intercreditor Agreements), at the time and on the date of entry of the Interim DIP OrderOrder Entry Date. The Obligors shall, with respect if requested, execute and deliver to the Senior DIP Facility and Existing DIP Facility, and immediately upon the occurrence of the Effective Date, with respect to the Supplemental DIP Term Loan Facility. Upon the request of either of the DIP Agents, each of the Pre-Petition First Lien Agent, the Pre-Petition First Lien Secured LendersPrepetition 2012 Credit Agreement Agent, the Pre-Petition Prepetition Term Loan Credit Agreement Agent, and the Prepetition Second Lien Notes Trustee all such agreements, financing statements, instruments and other documents as the DIP Agent, the Prepetition 2012 Credit Agreement Agent, the Prepetition Term Loan Credit Agreement Agent, and the Pre-Petition Prepetition Second Lien NoteholdersTrustee may reasonably request to more fully evidence, without any further consent of any partyconfirm, are authorized to take, execute, deliver and file such instruments (in each case, without representation or warranty of any kind) to enable the DIP Agents to further validate, perfect, preserve preserve, and enforce the DIP Liens and the Adequate Protection Liens, all such documents will be deemed to have been recorded and filed as of the Filing Date.