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<br />Bankruptcy Code; provided, that nothing in the foregoing shall limit the rights of the DIP
<br />Secured Parties under the DIP Documents to the extent such liens are not permitted
<br />thereunder;
<br />(iv) Liens Senior to Certain Other Liens. The DIP Liens shall not be (i)
<br />subject or subordinate to or made pari passu with (A) any lien or security interest that is
<br />avoided and preserved for the benefit of the Credit Parties and their estates under section
<br />551 of the Bankruptcy Code, (B) unless otherwise provided for in the DIP Documents or
<br />in this Final Order, any liens or security interests arising after the Petition Date,
<br />including, without limitation, any liens or security interests granted in favor of any
<br />federal, state, municipal or other governmental unit (including any regulatory body),
<br />commission, board or court for any liability of the Credit Parties, or (C) any
<br />intercompany or affiliate liens of the Credit Parties or security interests of the Credit
<br />Parties; or (ii) subordinated to or made pari passu with any other lien or security interest
<br />under section 363 or 364 of the Bankruptcy Code.
<br />(b) Specified Leases. Notwithstanding anything to the contrary in the Motion,
<br />the DIP Documents, or this Final Order, for purposes of this Final Order, in no event shall the
<br />DIP Collateral include or the DIP Liens or Adequate Protection Liens granted under this Final
<br />Order attach to any lease or other real property right, to which any Debtor is a party or any of
<br />such relevant Debtor's rights or interests thereunder, if and for so long as the grant of such
<br />security interest would constitute or result in: (x) the abandonment, invalidation, unenforceability
<br />or other impairment of any right, title or interest of any Debtor therein, or (y) a breach or
<br />termination pursuant to the terms of, or a default under, any such lease or other real property
<br />32
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<br />/860.7311-at39.2
<br />NY 78179867
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<br />granted thereto pursuant to the Prepetition Credit Documents or the Interim Order, or otherwise
<br />seek to exercise or enforce any rights or remedies against such DIP Collateral, including in
<br />connection with the Prepetition Liens or the Adequate Protection Liens; (ii) be deemed to have
<br />consented to any transfer, disposition or sale of, or release of liens on, such DIP Collateral (btu
<br />not any proceeds of such transfer, disposition or sale to the extent remaining after payment in
<br />cash in full of the DIP Obligations and termination of the DIP Commitments), to the extent such
<br />transfer, disposition, sale or release is authorized under the DIP Documents; (iii) not file any
<br />further financing statements, trademark filings, copyright filings, mortgages, notices of lien or
<br />similar instruments, or otherwise take any action to perfect their security interests in such DIP
<br />Collateral unless, solely w to this clause (iii), the DIP Collateral Agent or the DIP Lenders file
<br />financing statements or other documents to perfect the liens granted pursuant to this Final Order,
<br />or as may be required by applicable state law to continue the perfection of valid and non -
<br />avoidable liens or security interests as of the Petition Date and (iv) at the request of the DIP
<br />Collateral Agent, deliver or cause to be delivered, at the Credit Parties' cost and expense, any
<br />termination statements, releases and/or assignments in favor of the DIP Collateral Agent or the
<br />DIP Lenders or other documents necessary to effectuate and/or evidence the release, termination
<br />and/or assignment of liens on any portion of such DIP Collateral subject to any sale or
<br />disposition permitted by the DIP Documents and this Final Order; providedhowever that the
<br />foregoing shall not in any way limit the ability of the Prepetition Secured Parties from credit
<br />bidding at any sale of DIP Collateral or Prepetition Collateral.
<br />(b) To the extent any Prepetition Secured Party has possession of any
<br />Prepetition Collateral or DIP Collateral or has control with respect to any Prepetition Collateral
<br />right pursuant to any provision thereof, unless, in the case of each of clauses (x) and (y), the
<br />applicable provision is rendered ineffective, unenforceable, and/or invalid by applicable non -
<br />bankruptcy law or the Bankruptcy Code (such leases the "Specified Lease"); provided that, the
<br />foregoing shall not preclude any counterparty to a Specified Lease from an opportunity to be
<br />heard in this Court on notice with respect to whether applicable non -bankruptcy law or the
<br />Bankruptcy Code renders such provision ineffective, unenforceable, and/or invalid if requested
<br />by this non -Debtor party to the Specified Lease, and the Court shall retain jurisdiction to hear
<br />and adjudicate issues related thereto; provided further that DIP Collateral shall include and the
<br />DIP Liens and Adequate Protection Liens granted under this Final Order shall attach to any
<br />proceeds of any Specified Lease.
<br />(c) Automatic Effectiveness of Liens. The automatic stay imposed under
<br />section 362(a) of the Bankruptcy Code is hereby vacated and modified to effectuate all of the
<br />terms and provisions of this Final Order, including to (i) permit the Credit Parties to grant the
<br />liens and security interests to the DIP Collateral Agent, the other DIP Secured Parties and the
<br />Pmpetition Secured Parties, and (ii) authorize the Credit Parties to pay, and the DIP Secured
<br />Parties and Prepetition Secured Parties to retain and apply, payments made in accordance with
<br />this Final Order, to the extent, in cases (i) and (ii), contemplated by this Final Order and the other
<br />DIP Documents.
<br />13. Protection of DIP Lenders'kights.
<br />(a) So long as there we any DIP Obligations outstanding or the DIP Secured
<br />Parties have any outstanding DIP Commitments, the Prepetition Secured Parties shall: (i) have
<br />no right to and shall take no action to foreclose upon, or recover in connection with, the liens
<br />a
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<br />or DIP Collateral, or has been noted as a secured party on any certificate of title for a titled good
<br />constituting Prepetition Collateral or DIP Collateral, then such Prepetition Secured Party shall he
<br />deemed to maintain such possession or notation or exercise such control as a gratuitous bailee
<br />and/or gratuitous agent for perfection for the benefit of the DIP Collateral Agent and the DIP
<br />Lenders and it shall comply with the instructions of the DIP Collateral Agent with respect to the
<br />exercise of such control. The Prepetition Collateral Agent is not and shall not be deemed to be a
<br />fiduciary of any kind for the DIP Agents, the DIP Lenders and the DIP Agents, on behalf of
<br />themselves and the DIP Lenders, is hereby deemed to waive and release the Pmpetition Agent
<br />and the Prepetition Collateral Agent from all claims and liabilities arising pursuant to their role
<br />under this paragraph 13(b) as gratuitous bailee and agent with respect to the Prepetition
<br />Collateral or the DIP Collateral.
<br />(c) Any proceeds of Prepetition Collateral received by any Prepetition
<br />Secured Party in connection with the exercise of any right or remedy relating to the Prepetition
<br />Collateral or otherwise received by any Prepetition Secured Party shall be segregated and held in
<br />trust for the benefit of and forthwith paid over to the DIP Collateral Agent for the benefit of the
<br />applicable DIP Secured Parties in the same form as received, with any necessary endorsements,
<br />or as a court of competent jurisdiction may otherwise direct. The DIP Collateral Agent is hereby
<br />authorized to make any such endorsements as agent for any such Prepetition Secured Party. This
<br />authorization is coupled with an interest and is irrevocable.
<br />(d) The automatic stay provisions of section 362 of the Bankruptcy Code are
<br />hereby vacated and modified to the extent necessary to permit the DIP Secured Parties to enforce
<br />all of their rights under the applicable DIP Documents and take any or all of the following
<br />34
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