Common use of Preference Issues Clause in Contracts

Preference Issues. If any Senior Financing Party is required in any Bankruptcy Proceeding or otherwise to turn over or otherwise pay to the estate of the Senior Borrower any amount (whether received by or on behalf of the Senior Borrower, as proceeds of security, enforcement of any right of setoff or otherwise) (a "Recovery"), then the obligation or part thereof originally intended to be satisfied shall be reinstated and outstanding as Senior Obligations, as of the date of such Recovery to the extent of such Recovery and the Discharge of Senior Obligations shall be deemed not to have occurred, except to the extent such turnover obligation arose from an Improper Act. If this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto from such date of reinstatement. The Subordinated Financing Parties agree that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with this Agreement, whether by preference or otherwise, it being understood and agreed that the benefit of such avoidance action otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Agreement, subject to Section 4.2 and except to the extent such turnover obligation arose from an Improper Act. In the event that any such payment with respect to the Senior Obligations results in a Discharge of Senior Obligations, the Senior Financing Parties agree that the Subordinated Financing Parties shall be permitted to act hereunder as though a Discharge of Senior Obligations had occurred during the period from such payment until the date of such reinstatement of the Senior Obligations and shall have no liability to the Senior Financing Parties for any action taken or omitted to be taken hereunder in accordance therewith, except to the extent such act or omission is found by a final, non-appealable judgment of a court of competent jurisdiction to arise from the gross negligence, bad faith or willful misconduct of the Subordinated Financing Parties.

Preference Issues. If any Senior Financing Priority Secured Party is required in any Bankruptcy Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay any amount to the estate of Holdings, the Senior Borrower or any other Grantor (or any trustee, receiver or similar Person therefor), because the payment of such amount was declared to be or avoided as fraudulent or preferential in any respect or for any other reason (any such amount, a “Recovery”), whether received by or on behalf of the Senior Borrower, as proceeds Proceeds of security, enforcement of any right of setoff or otherwise) (a "Recovery"), then the obligation or part thereof originally intended to be satisfied Senior Priority Obligations shall be reinstated and outstanding as Senior Obligations, as of the date of such Recovery to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred and the Senior Priority Secured Parties shall be entitled to the benefits of this Agreement until a Discharge of Senior Priority Obligations shall be deemed not with respect to have occurred, except to the extent all such turnover obligation arose from an Improper Actrecovered amounts. If this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto from such date hereto. Each Second Priority Representative, for itself and on behalf of reinstatement. The Subordinated Financing Parties agree each Second Priority Secured Party under its Second Priority Debt Facility, hereby agrees that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with this Agreement, whether by preference or otherwise, it being understood and agreed that the benefit of such avoidance action otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Agreement. Without limiting the generality of the foregoing, to the extent that Senior Priority Secured Parties are granted adequate protection in the form of payments in the amount of current post-petition fees and expenses, and/or other cash payments, then the Second Priority Representatives, for themselves and on behalf of the Second Priority Secured Parties under the Second Priority Debt Facilities, shall not be prohibited from seeking adequate protection in the form of payments in the amount of current post-petition incurred fees and expenses, and/or other cash payments (as applicable), subject to Section 4.2 and except to the extent such turnover obligation arose from an Improper Act. In the event that any such payment with respect to the Senior Obligations results in a Discharge of Senior Obligations, the Senior Financing Parties agree that the Subordinated Financing Parties shall be permitted to act hereunder as though a Discharge of Senior Obligations had occurred during the period from such payment until the date of such reinstatement right of the Senior Obligations and shall have no liability Priority Secured Parties to object to the Senior Financing Parties for any action taken or omitted to be taken hereunder in accordance therewith, except to the extent such act or omission is found by a final, non-appealable judgment of a court of competent jurisdiction to arise from the gross negligence, bad faith or willful misconduct reasonableness of the Subordinated Financing amounts of fees and expenses or other cash payments so sought by the Second Priority Secured Parties.

Preference Issues. If the First Lien Agent or any Senior Financing Party First Lien Lender is required in any Bankruptcy Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay to the estate of the Senior First Lien Borrower or any First Lien Guarantor any amount (whether received by or on behalf of the Senior BorrowerFirst Lien Borrower or any First Lien Guarantor, as proceeds of security, enforcement of any right of setoff or otherwise) (a "“Recovery"”), then the obligation or part thereof originally intended to be satisfied shall be reinstated and outstanding as Senior Obligations, First Lien Obligations as of the date of if such Recovery payment had not occurred to the extent of such Recovery and the Discharge of Senior First Lien Obligations shall be deemed to not to have occurred, except to the extent such turnover obligation arose from an Improper Act. If this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto from such date of reinstatement. The Subordinated Financing Parties Second Lien Agent and the Second Lien Lenders agree that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with this Agreement, whether by preference or otherwise, it being understood and agreed that the benefit of such avoidance action otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Agreement, subject to Section 4.2 and except to the extent such turnover obligation arose from an Improper Act. In the event that any such payment with respect to the Senior First Lien Obligations results in a Discharge of Senior First Lien Obligations, the Senior Financing Parties First Lien Agent and the First Lien Lenders agree that the Subordinated Financing Parties Second Lien Agent and the Second Lien Lenders shall be permitted to act hereunder as though a Discharge of Senior First Lien Obligations had occurred during the period from such payment until the date of such reinstatement of the Senior First Lien Obligations and shall have no liability to the Senior Financing Parties First Lien Agent or the First Lien Lenders for any action taken or omitted to be taken hereunder in accordance therewith, except to the extent such act or omission is found by a final, non-appealable judgment of a court of competent jurisdiction to arise from the gross negligence, bad faith or willful misconduct of the Subordinated Financing PartiesSecond Lien Agent or Second Lien Lenders.

Preference Issues. (a) If any Senior Financing Party First Priority Lender is required to or does, in any Bankruptcy Insolvency or Liquidation Proceeding or otherwise to otherwise, turn over or otherwise pay to the estate of the Senior Borrower Company, any other Grantor or any other Person, any amount (whether a “First Priority Claim Recovery”) received by or on behalf of the Senior Borrower, as proceeds of security, enforcement in respect of any right of setoff or otherwise) (a "Recovery")First Priority Collateral, then the obligation or part thereof originally intended to be satisfied First Priority Claims shall be reinstated and outstanding as Senior Obligations, as of the date of such Recovery to the extent of such First Priority Claim Recovery and the Discharge of Senior Obligations First Priority Lenders shall be deemed not entitled to have occurredreceive payment in full in cash (including, except in the ease of any outstanding letter of credit or unreimbursed draws with respect to the extent letters of credit, cash collateral therefor) with respect to all such turnover obligation arose from an Improper Actrecovered amounts. If this Agreement shall have been terminated prior to such First Priority Claim Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto from such date of reinstatementhereto. The Subordinated Financing Parties Second Priority Agent and each Second Priority Lender agree that none of them shall be entitled to benefit from any avoidance action (including any First Priority Claim Recovery) affecting or otherwise relating to any distribution or allocation made in accordance with this Agreement, whether by preference or otherwise, it being understood and agreed that the benefit of such avoidance action otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Agreement. (b) If any Second Priority Lender is required to or does, subject in any Insolvency or Liquidation Proceeding or otherwise, turn over or otherwise pay to Section 4.2 and except the estate of the Company, any other Grantor, or any other Person, any amount (a “Second Priority Claim Recovery”) received in respect of any Second Priority Collateral, then the Second Priority Claims shall be reinstated to the extent of such turnover obligation arose from an Improper Act. In Second Priority Claim Recovery and the event that Second Priority Lenders shall be entitled to receive payment in full in cash (including, in the case of any such payment letter of credit, cash collateral therefor) with respect to all such recovered amounts. If this Agreement shall have been terminated prior to such Second Priority Claim Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the Senior Obligations results in a Discharge obligations of Senior Obligations, the Senior Financing Parties parties hereto. The First Priority Agent and each First Priority Lender agree that the Subordinated Financing Parties none of them shall be permitted entitled to act hereunder as though a Discharge of Senior Obligations had occurred during benefit from any avoidance action (including any Second Priority Claim Recovery) affecting or otherwise relating to any distribution or allocation made in accordance with this Agreement, whether by preference or otherwise, it being understood and agreed that the period from such payment until the date benefit of such reinstatement of the Senior Obligations avoidance action otherwise allocable to them shall instead be allocated and shall have no liability to the Senior Financing Parties turned over for any action taken or omitted to be taken hereunder application in accordance therewithwith the priorities set forth in this Agreement. INTERCREDITOR AGREEMENT BETWEEN CIT FINANCE LLC AND THE BANK OF NEW YORK MELLON/BROADVIEW NETWORKS HOLDINGS, except to the extent such act or omission is found by a final, non-appealable judgment of a court of competent jurisdiction to arise from the gross negligence, bad faith or willful misconduct of the Subordinated Financing Parties.INC AND SUBSIDIARIES

Preference Issues. (a) If any Senior Financing Party Credit Facility Claim Holder is required in any Bankruptcy Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay to the estate of the Senior Borrower Company or any other Grantor any amount (whether a "Credit Facility Claim Recovery") received by or on behalf of the Senior Borrower, as proceeds of security, enforcement in respect of any right of setoff or otherwise) (a "Recovery")Credit Facility Priority Collateral, then the obligation or part thereof originally intended to be satisfied Credit Facility Claims shall be reinstated and outstanding as Senior Obligations, as of the date of such Recovery to the extent of such Credit Facility Claim Recovery and the Discharge of Senior Obligations Credit Facility Claim Holders shall be deemed not entitled to have occurred, except receive payment in full in cash with respect to the extent all such turnover obligation arose from an Improper Actrecovered amounts. If this Agreement shall have been terminated prior to such Credit Facility Claim Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto from such date of reinstatementhereto. The Subordinated Financing Parties Indenture Agent and each Indenture Holder agree that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with this Agreement, whether by preference or otherwise, ; it being understood and agreed that the benefit of such avoidance action otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Agreement. (b) If any Indenture Holder is required in any Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay to the estate of the Company or any other Grantor any amount (a "Indenture Obligation Recovery") received in respect of any Indenture Priority Collateral, subject to Section 4.2 and except then the Indenture Obligations shall be reinstated to the extent of such turnover obligation arose from an Improper Act. In Indenture Obligation Recovery and the event that Indenture Holders shall be entitled to receive payment in full in cash (including, in the case of any such payment letter of credit, cash collateral therefor) with respect to all such recovered amounts. If this Agreement shall have been terminated prior to such Indenture Obligation Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the Senior Obligations results in a Discharge obligations of Senior Obligations, the Senior Financing Parties parties hereto. The Credit Facility Agent and each Credit Facility Claim Holder agree that the Subordinated Financing Parties none of them shall be permitted entitled to act hereunder as though a Discharge of Senior Obligations had occurred during benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with this Agreement, whether by preference or otherwise; it being understood and agreed that the period from such payment until the date benefit of such reinstatement of the Senior Obligations avoidance action otherwise allocable to them shall instead be allocated and shall have no liability to the Senior Financing Parties turned over for any action taken or omitted to be taken hereunder application in accordance therewith, except to with the extent such act or omission is found by a final, non-appealable judgment of a court of competent jurisdiction to arise from the gross negligence, bad faith or willful misconduct of the Subordinated Financing Partiespriorities set forth in this Agreement.

Preference Issues. If any Senior Financing Priority Secured Party is required in any Bankruptcy Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay any amount to the estate of Holdings, the Senior Borrower or any other Grantor (or any trustee, receiver or similar Person therefor), because the payment of such amount was declared to be or avoided as fraudulent or preferential in any respect or for any other reason (any such amount, a “Recovery”), whether received by or on behalf of the Senior Borrower, as proceeds Proceeds of security, enforcement of any right of setoff or otherwise) (a "Recovery"), then the obligation or part thereof originally intended to be satisfied Senior Priority Obligations shall be reinstated and outstanding as Senior Obligations, as of the date of such Recovery to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred and the Senior Priority Secured Parties shall be entitled to the benefits of this Agreement until a Discharge of Senior Priority Obligations shall be deemed not with respect to have occurred, except to the extent all such turnover obligation arose from an Improper Actrecovered amounts. If this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto from such date hereto. Each Second Priority Representative, for itself and on behalf of reinstatement. The Subordinated Financing Parties agree each Second Priority Secured Party under its Second Priority Debt Facility, hereby agrees that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with this Agreement, whether by preference or otherwise, it being understood and agreed that the benefit of such avoidance action otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Agreement. Without limiting the generality of the foregoing, to the extent that Senior Priority Secured Parties are granted adequate protection in the form of payments in the amount of current post-petition fees and expenses, and/or other cash payments, then the Second Priority Representatives, for themselves and on behalf of the Second Priority Secured Parties under the Second Priority Debt Facilities, shall not be prohibited from seeking adequate protection in the form of payments in the amount of current post- petition incurred fees and expenses, and/or other cash payments (as applicable), subject to Section 4.2 and except to the extent such turnover obligation arose from an Improper Act. In the event that any such payment with respect to the Senior Obligations results in a Discharge of Senior Obligations, the Senior Financing Parties agree that the Subordinated Financing Parties shall be permitted to act hereunder as though a Discharge of Senior Obligations had occurred during the period from such payment until the date of such reinstatement right of the Senior Obligations and shall have no liability Priority Secured Parties to object to the Senior Financing Parties for any action taken or omitted to be taken hereunder in accordance therewith, except to the extent such act or omission is found by a final, non-appealable judgment of a court of competent jurisdiction to arise from the gross negligence, bad faith or willful misconduct reasonableness of the Subordinated Financing amounts of fees and expenses or other cash payments so sought by the Second Priority Secured Parties.

Preference Issues. (a) If any Senior Financing Party Credit Facility Lender is required in any Bankruptcy Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay to the estate of the Senior Borrower any Grantor any amount (whether a “Credit Facility Claim Recovery”) received by or on behalf of the Senior Borrower, as proceeds of security, enforcement in respect of any right of setoff or otherwise) (a "Recovery")Credit Facility Priority Collateral, then the obligation or part thereof originally intended to be satisfied Credit Facility Claims shall be reinstated and outstanding as Senior Obligations, as of the date of such Recovery to the extent of such Credit Facility Claim Recovery and the Discharge of Senior Obligations Credit Facility Lenders shall be deemed not entitled to have occurredreceive payment in full in cash (including, except in the case of any letter of credit, cash collateral therefor) with respect to the extent all such turnover obligation arose from an Improper Actrecovered amounts. If this Agreement shall have been terminated prior to such Credit Facility Claim Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto hereto. Each Priority Lien Secured Party and Subordinated Lien Secured Party agrees that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with this Agreement, whether by preference or otherwise; it being understood and agreed that the benefit of such date avoidance action otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Agreement. (b) If any Priority Lien Secured Party is required in any Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay to the estate of reinstatementany Grantor any amount (a “Indenture Obligation Recovery”) received in respect of any Indenture Priority Collateral, then the Priority Lien Obligations shall be reinstated to the extent of such Indenture Obligation Recovery and the Priority Lien Secured Parties shall be entitled to receive payment in full in cash (including, in the case of any letter of credit, cash collateral therefor) with respect to all such recovered amounts. If this Agreement shall have been terminated prior to such Indenture Obligation Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto. The Credit Facility Agent and each Credit Facility Lender and each Subordinated Financing Parties Lien Secured Party agree that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with this Agreement, whether by preference or otherwise, ; it being understood and agreed that the benefit of such avoidance action otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Agreement, subject to Section 4.2 and except to the extent such turnover obligation arose from an Improper Act. In the event that any such payment with respect to the Senior Obligations results in a Discharge of Senior Obligations, the Senior Financing Parties agree that the Subordinated Financing Parties shall be permitted to act hereunder as though a Discharge of Senior Obligations had occurred during the period from such payment until the date of such reinstatement of the Senior Obligations and shall have no liability to the Senior Financing Parties for any action taken or omitted to be taken hereunder in accordance therewith, except to the extent such act or omission is found by a final, non-appealable judgment of a court of competent jurisdiction to arise from the gross negligence, bad faith or willful misconduct of the Subordinated Financing Parties.

Preference Issues. (a) If any Senior Financing Party First-Lien Creditor is required in any Bankruptcy Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay to the estate of the Senior Borrower or any other Grantor any amount (whether received by or on behalf of the Senior Borrower, as proceeds of security, enforcement of any right of setoff or otherwise) (a "Recovery"), then the obligation or part thereof originally intended to be satisfied First-Lien Obligations shall be reinstated and outstanding as Senior Obligations, as of the date of such Recovery to the extent of such Recovery and the First-Lien Creditors shall be entitled to a reinstatement of First-Lien Obligations with respect to all such recovered amounts. In such event, any Discharge of Senior First-Lien Obligations for all purposes of this Agreement shall be deemed not to have occurred, except not occurred (unless and until same subsequently occurs with respect to the extent such turnover obligation arose from an Improper ActFirst-Lien Obligations after giving effect to the provisions to this Section 6.5(a)). If this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and effecteffect (and any prior Discharge of First-Lien Obligations shall be deemed not to have occurred), and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto from such date of reinstatement. The Subordinated Financing Parties agree that none Any amounts received by the Second-Lien Collateral Agent or any Second-Lien Creditor on account of them the Second-Lien Obligations, or by the Third-Lien Collateral Agent or any Third-Lien Creditor on account of the Third-Lien Obligations, after the termination of this Agreement (or any prior Discharge of First-Lien Obligations) shall, in the event of a reinstatement pursuant to this Section 6.5(a), be held in trust for and paid over to the First-Lien Collateral Agent for the benefit of the First-Lien Creditors, for application to the reinstated First-Lien Obligations. (b) If any Second-Lien Creditor is required in any Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay to the estate of the Borrower or any other Grantor any amount (a "Second-Lien Recovery"), then the Second-Lien Obligations shall be reinstated to the extent of such Second-Lien Recovery and the Second-Lien Creditors shall be entitled to benefit from any avoidance action affecting or otherwise relating a reinstatement of Second-Lien Obligations with respect to any distribution or allocation made in accordance with this Agreement, whether by preference or otherwise, it being understood and agreed that the benefit of all such avoidance action otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Agreement, subject to Section 4.2 and except to the extent such turnover obligation arose from an Improper Actrecovered amounts. In the event that such event, any such payment Discharge of Second-Lien Obligations for all purposes of this Agreement shall be deemed to have not occurred (unless and until same subsequently occurs with respect to the Senior Second-Lien Obligations results after giving effect to the provisions to this Section 6.5(b)). If this Agreement shall have been terminated prior to such Second-Lien Recovery, this Agreement shall be reinstated in a full force and effect (and any prior Discharge of Senior Second-Lien Obligations shall be deemed not to have occurred), and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto from such date of reinstatement. Any amounts received by the Third-Lien Collateral Agent or any Third-Lien Creditor on account of the Third-Lien Obligations, after the Senior Financing Parties agree that the Subordinated Financing Parties shall be permitted to act hereunder as though a termination of this Agreement (or any prior Discharge of Senior Obligations had occurred during Second-Lien Obligations) shall, in the period from such payment until event of a reinstatement pursuant to this Section 6.5(b), be held in trust for and paid over to the date of such reinstatement Second-Lien Collateral Agent for the benefit of the Senior Obligations and shall have no liability Second-Lien Creditors, for application to the Senior Financing Parties for any action taken or omitted to be taken hereunder in accordance therewith, except to the extent such act or omission is found by a final, nonreinstated Second-appealable judgment Lien Obligations. (c) This Section 6.5 shall survive termination of a court of competent jurisdiction to arise from the gross negligence, bad faith or willful misconduct of the Subordinated Financing Partiesthis Agreement.

Preference Issues. (a) If any Senior Financing Party Lender is required in any Bankruptcy Insolvency or Liquidation Proceeding in respect of PM&C, the Company or otherwise to turn over or otherwise pay to the estate of the Senior Borrower Company any amount (whether received by in respect of Common Collateral or on behalf of the Senior Borrower, as proceeds of security, enforcement of any right of setoff or otherwise) thereof (a "Common Collateral Recovery"), then the obligation or part thereof originally intended to be satisfied Senior Lender Claims shall be reinstated and outstanding as Senior Obligations, as of the date of such Recovery to the extent of such Common Collateral Recovery and the Discharge of Senior Obligations Lenders shall be deemed not entitled to have occurred, except indefeasible payment in full cash of such Senior Lender Claims with respect to the extent all such turnover obligation arose from an Improper Actrecovered amounts in respect of Common Collateral or proceeds thereof. If this Agreement shall have been terminated prior to such Common Collateral Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto from such date of reinstatement. The Subordinated Financing Parties agree that none If any Term Loan Lender is required in any Insolvency or Liquidation Proceeding in respect of them the Company or otherwise to turn over or otherwise pay to the estate of the Company any amount in respect of Other Common Collateral or proceeds thereof (an "Other Common Collateral Recovery"), then the Term Loan Lender Claims shall be reinstated to the extent of such Other Common Collateral Recovery and the Term Loan Lenders shall be entitled to benefit from any avoidance action affecting indefeasible payment in full in cash of such Term Loan Lender Claims with respect to all such recovered amounts in respect of Other Common Collateral or proceeds thereof. If this Agreement shall have been terminated prior to such Other Common Collateral Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise relating affect the obligations of the parties hereto from such date of reinstatement. (b) If any Term Loan Lender or Senior Lender is required in any Insolvency or Liquidation Proceeding in respect of the Company or otherwise to turn over or otherwise pay to the estate of the Company any distribution amount in respect of Pari Passu Common Collateral or allocation made in accordance with this Agreementproceeds thereof (a "Pari Passu Common Collateral Recovery"), whether by preference then the Term Loan Lender Claims or otherwise, it being understood and agreed that Senior Lender Claims (as the benefit of such avoidance action otherwise allocable to them case may be) shall instead be allocated and turned over for application in accordance with the priorities set forth in this Agreement, subject to Section 4.2 and except reinstated to the extent of such turnover obligation arose from an Improper Act. In Pari Passu Common Collateral Recovery and the event that any Term Loan Lenders or Senior Lenders (as the case may be) shall be entitled to indefeasible prorata payment in full in cash of such payment Term Loan Lender Claims or Senior Lender Claims (as the case may be) with respect to the Senior Obligations results all such recovered amounts in a Discharge respect of Senior ObligationsPari Passu Common Collateral or proceeds thereof. If this Agreement shall have been terminated prior to such Pari Passu Common Collateral Recovery, the Senior Financing Parties agree that the Subordinated Financing Parties this Agreement shall be permitted to act hereunder as though a Discharge reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of Senior Obligations had occurred during the period parties hereto from such payment until the date of such reinstatement of the Senior Obligations and shall have no liability to the Senior Financing Parties for any action taken or omitted to be taken hereunder in accordance therewith, except to the extent such act or omission is found by a final, non-appealable judgment of a court of competent jurisdiction to arise from the gross negligence, bad faith or willful misconduct of the Subordinated Financing Partiesreinstatement.

Preference Issues. (a) If any Senior Financing Party First Priority Lender is required in any Bankruptcy Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay to the estate of the Senior Borrower Company or any other Grantor any amount (whether a “First Priority Claim Recovery”) received by or on behalf of the Senior Borrower, as proceeds of security, enforcement in respect of any right of setoff or otherwise) (a "Recovery")First Priority Collateral, then the obligation or part thereof originally intended to be satisfied First Priority Claims shall be reinstated and outstanding as Senior Obligations, as of the date of such Recovery to the extent of such First Priority Claim Recovery and the Discharge of Senior Obligations First Priority Lenders shall be deemed not entitled to have occurredreceive payment in full in cash (including, except in the case of any letter of credit, cash collateral therefor) with respect to the extent all such turnover obligation arose from an Improper Actrecovered amounts. If this Agreement shall have been terminated prior to such First Priority Claim Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto from such date of reinstatementhereto. The Subordinated Financing Parties Second Priority Agent and each Second Priority Lender agree that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with this Agreement, whether by preference or otherwise, it being understood and agreed that the benefit of such avoidance action otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Agreement. (b) If any Second Priority Lender is required in any Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay to the estate of the Company or any other Grantor any amount (a “Second Priority Claim Recovery”) received in respect of any Second Priority Collateral, subject to Section 4.2 and except then the Second Priority Claims shall be reinstated to the extent of such turnover obligation arose from an Improper Act. In Second Priority Claim Recovery and the event that Second Priority Lenders shall be entitled to receive payment in full in cash (including, in the case of any such payment letter of credit, cash collateral therefor) with respect to all such recovered amounts. If this Agreement shall have been terminated prior to such Second Priority Claim Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the Senior Obligations results in a Discharge obligations of Senior Obligations, the Senior Financing Parties parties hereto. The First Priority Agent and each First Priority Lender agree that the Subordinated Financing Parties none of them shall be permitted entitled to act hereunder as though a Discharge of Senior Obligations had occurred during benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with this Agreement, whether by preference or otherwise, it being understood and agreed that the period from such payment until the date benefit of such reinstatement of the Senior Obligations avoidance action otherwise allocable to them shall instead be allocated and shall have no liability to the Senior Financing Parties turned over for any action taken or omitted to be taken hereunder application in accordance therewith, except to with the extent such act or omission is found by a final, non-appealable judgment of a court of competent jurisdiction to arise from the gross negligence, bad faith or willful misconduct of the Subordinated Financing Partiespriorities set forth in this Agreement.

Preference Issues. If any Senior Financing Priority Secured Party is required in any Bankruptcy Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay any amount to the estate of Holdings, the Senior Borrower or any other Grantor (or any trustee, receiver or similar Person therefor), because the payment of such amount was declared to be fraudulent or preferential in any respect or for any other reason (any such amount, a “Recovery”), whether received by or on behalf of the Senior Borrower, as proceeds Proceeds of security, enforcement of any right of setoff or otherwise) (a "Recovery"), then the obligation or part thereof originally intended to be satisfied Senior Priority Obligations shall be reinstated and outstanding as Senior Obligations, as of the date of such Recovery to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred and the Senior Priority Secured Parties shall be entitled to the benefits of this Agreement until a Discharge of Senior Priority Obligations shall be deemed not with respect to have occurred, except to the extent all such turnover obligation arose from an Improper Actrecovered amounts. If this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto from such date hereto. Each Second Priority Representative, for itself and on behalf of reinstatement. The Subordinated Financing Parties agree each Second Priority Secured Party under its Second Priority Debt Facility, hereby agrees that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with this Agreement, whether by preference or otherwise, it being understood and agreed that the benefit of such avoidance action otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Agreement. Without limiting the generality of the foregoing, to the extent that Senior Priority Secured Parties are granted adequate protection in the form of payments in the amount of current post-petition fees and expenses, and/or other cash payments, then the Second Priority Representatives, for themselves and on behalf of the Second Priority Secured Parties under the Second Priority Debt Facilities, shall not be prohibited from seeking adequate protection in the form of payments in the amount of current post-petition incurred fees and expenses, and/or other cash payments (as applicable), subject to Section 4.2 and except to the extent such turnover obligation arose from an Improper Act. In the event that any such payment with respect to the Senior Obligations results in a Discharge of Senior Obligations, the Senior Financing Parties agree that the Subordinated Financing Parties shall be permitted to act hereunder as though a Discharge of Senior Obligations had occurred during the period from such payment until the date of such reinstatement right of the Senior Obligations and shall have no liability Priority Secured Parties to object to the Senior Financing Parties for any action taken or omitted to be taken hereunder in accordance therewith, except to the extent such act or omission is found by a final, non-appealable judgment of a court of competent jurisdiction to arise from the gross negligence, bad faith or willful misconduct reasonableness of the Subordinated Financing amounts of fees and expenses or other cash payments so sought by the Second Priority Secured Parties.