Common use of Avoidance Issues Clause in Contracts

Avoidance Issues. If any First Lien Secured Party is required in any Insolvency Proceeding or otherwise to disgorge, turn over or otherwise pay to the estate of any Obligor, because such amount was avoided or ordered to be paid or disgorged for any reason, including without limitation because it was found to be a fraudulent or preferential transfer, any amount (a “Recovery”), whether received as proceeds of security, enforcement of any right of set-off or otherwise, then (i) such First Lien Secured Party shall have a claim under Section 4.03 as if payment in respect of such amount had never been made by the Collateral Agent to such First Lien Secured Party; provided, however, that any amounts payable by Collateral Agent to a First Lien Secured Party pursuant to this Section 5.05 shall be payable solely from proceeds of Collateral, if any, and no First Lien Secured Party shall acquire direct or participating interests in such First Lien Secured Party’s Obligations or be required to pay to Collateral Agent, such First Lien Secured Party or any other Person any amounts in respect of any such amounts and (ii) the First Lien Obligations shall be reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred and the First Lien Obligations Payment Date shall be deemed not to have occurred. 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 until such time as the First Lien Obligations Payment Date shall have fully and finally occurred with respect to all such reinstated First Lien Obligations. The Second Lien Agent, on behalf of itself and the other Second Lien Secured Parties, 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.

Avoidance Issues. If any First Lien Secured Party is required in any Insolvency Proceeding or otherwise to disgorge, turn over or otherwise pay or relinquish to a trustee, a receiver, or the estate of any ObligorLoan Party, because such amount was avoided or ordered to be paid paid, disgorged or disgorged relinquished for any reason, including including, without limitation because it was found to be a fraudulent or preferential transfertransfer or because the Liens securing the First Lien Obligations are unperfected or otherwise voided, avoided, invalidated or lapsed, any amount (a “Recovery”), whether received as proceeds of security, enforcement of any right of set-off or otherwise, then (i) such First Lien Secured Party shall have a claim under Section 4.03 as if payment in respect of such amount had never been made by then, subject to the Collateral Agent to such First Lien Secured Party; providedproviso below, however, that any amounts payable by Collateral Agent to a First Lien Secured Party pursuant to this Section 5.05 shall be payable solely from proceeds of Collateral, if any, and no First Lien Secured Party shall acquire direct or participating interests in such First Lien Secured Party’s Obligations or be required to pay to Collateral Agent, such First Lien Secured Party or any other Person any amounts in respect of any such amounts and (ii) the First Lien Obligations shall be reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred and the First Lien Obligations Payment Date shall be deemed not to have occurred. 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 until such time as from the First Lien Obligations Payment Date shall have fully and finally occurred with respect to all such reinstated First Lien Obligationsdate of reinstatement. The Second Lien Agent, on behalf of itself and the other Second Lien Secured Parties, agrees Parties agree that none of them shall be entitled to benefit from any avoidance action affecting Recovery, solely to the extent arising in respect of or otherwise relating on account of each First Lien Secured Party's interest in the Second Lien Collateral or on account of such First Lien Secured Party's "secured claim" against any Loan Party within the meaning of section 506 of the Bankruptcy Code, to any distribution extent beyond what they would have been entitled to had such Recovery not occurred (solely to the extent arising in respect of or allocation made on account of such Second Lien Secured Party's interest in accordance with this Agreementthe Second Lien Collateral or an account of such Second Lien Secured Party's "secured claim" against any Loan Party within the meaning of section 506 of the Bankruptcy)(in each case, whether by preference or otherwisea "Secured Claim Recovery"), it being understood and agreed that the benefit of such avoidance action Secured Claim Recovery otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Agreement; provided, that notwithstanding anything to the contrary contained herein, (i) any amount received by the Second Lien Secured Parties in respect of a Secured Claim Recovery to be so turned over shall be limited to the amount in excess of the amount they would have received on account of its interest in the Second Lien Collateral or pursuant to its secured claim under section 506 of the Bankruptcy Code had such Secured Claim Recovery not occurred and (ii) except for the amounts specified in the foregoing clause (i) in respect of a Secured Claim Recovery, the Second Lien Secured Parties shall otherwise be entitled to receive and retain any amounts allocable to them in respect of any other Recovery.

Avoidance Issues. If any First Lien Secured Party Claimholder is required in any Insolvency Proceeding or otherwise to disgorgeturn over, turn over disgorge or otherwise pay to the estate of any Obligor, because such amount was avoided or ordered to be paid or disgorged for any reason, including without limitation because it was found to be a fraudulent or preferential transfer, Grantor any amount paid in respect of Revolving Obligations or Notes Obligations, as the case may be (a “Recovery”), whether received as proceeds of security, enforcement of any right of set-off or otherwise, then (i) such First Lien Secured Party Claimholders shall have a claim under Section 4.03 as if payment in respect of such amount had never been made by the Collateral Agent to such First Lien Secured Party; provided, however, that any amounts payable by Collateral Agent be entitled to a First Lien Secured Party pursuant reinstatement of the Revolving Obligations or the Notes Obligations, as applicable, with respect to this Section 5.05 shall be payable solely from proceeds of Collateral, if anyall such recovered amounts, and no First Lien Secured Party all rights, interests, priorities and privileges recognized in this Agreement shall acquire direct or participating interests in such First Lien Secured Party’s Obligations or be required apply with respect to pay to Collateral Agent, such First Lien Secured Party or any other Person any amounts in respect of any such amounts and Recovery (ii) including that the First Lien Obligations shall be reinstated to the extent amount of such Recovery and deemed to be outstanding is a Revolving Obligation or Notes Obligation, as if such payment had not occurred and the First Lien Obligations Payment Date shall be deemed not to have occurredapplicable, secured by Collateral in accordance with this Agreement). 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 impair, or otherwise affect the obligations of the parties hereto until from such time as date of reinstatement. Notwithstanding anything to the First contrary contained herein, if in any Insolvency Proceeding a determination is made that any prior Lien Obligations Payment Date shall have fully and finally occurred with respect to all such reinstated First Lien Obligations. The Second Lien Agentencumbering any Collateral is not enforceable for any reason then the Revolving Collateral Agent or Revolving Claimholders, on behalf of itself the one hand, and the Notes Collateral Agent or Notes Claimholders, on the other Second Lien Secured Partieshand, agrees having Liens of lower ranking priority as provided in this Agreement agree that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made recovery they may receive with respect to, or allocable to, the value of the assets constituting Collateral subject to an enforceable Lien in accordance with this Agreementfavor of any such lower ranking priority Lien holder or any proceeds thereof shall (for so long as the Discharge of Revolving Obligations has not occurred, whether by preference in the case of assets constituting Revolving Priority Collateral, or otherwisethe Discharge of Note Loan Obligations has not occurred, it being understood in the case of assets constituting Notes Priority Collateral) be segregated and agreed that held in trust and forthwith paid over to the Revolving Collateral Agent for the benefit of the Revolving Claimholders or to the Notes Collateral Agent for the benefit of the Note Claimholders, as applicable based on whichever holds or is intended to hold the prior Lien as provided in Section 2.1, in the same form as received without recourse, representation or warranty (other than a representation of the applicable Revolving Collateral Agent or Notes Collateral Agent (required to so segregate and pay over) that it has not otherwise sold, assigned, transferred or pledged any right, title or interest in and to such avoidance action distribution or recovery) but with any necessary endorsements or as a court of competent jurisdiction may otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Agreementdirect.

Avoidance Issues. (a) If any First Lien ABL Secured Party is required in any Insolvency Proceeding or otherwise to disgorge, turn over or otherwise pay to the estate of any ObligorBorrower or any other Grantor (or any trustee, receiver, interim receiver, monitor or similar Person therefor), because the payment of such amount was avoided or ordered declared to be paid fraudulent, preferential or disgorged transaction at undervalue in any respect or for any other reason, including without limitation because it was found to be a fraudulent or preferential transfer, any amount (a an “ABL Recovery”), whether received as proceeds of security, enforcement of any right of set-off setoff or otherwise, then (i) such First Lien Secured Party shall have a claim under Section 4.03 as if payment in respect of such amount had never been made by among the Collateral Agent to such First Lien Secured Party; provided, however, that any amounts payable by Collateral Agent to a First Lien Secured Party pursuant to this Section 5.05 parties hereto the ABL Obligations shall be payable solely from proceeds of Collateral, if any, and no First Lien Secured Party shall acquire direct or participating interests in such First Lien Secured Party’s Obligations or be required deemed to pay to Collateral Agent, such First Lien Secured Party or any other Person any amounts in respect of any such amounts and (ii) the First Lien Obligations shall be reinstated to the extent of such ABL Recovery and deemed to be outstanding as if such payment had not occurred occurred, and the First Lien Obligations Payment Date ABL Secured Parties shall be deemed not entitled, to the extent they are entitled hereunder, to a Discharge of ABL Obligations with respect to all such recovered amounts and shall have occurredall rights hereunder until such time. If this Agreement shall have been terminated prior to such ABL 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 until such time hereto. Any amounts received by the Term Loan Agent or any Term Loan Secured Party or by the Notes Agent or any Notes Secured Party, as the First Lien Obligations Payment Date shall have fully and finally occurred with respect to all such reinstated First Lien Obligations. The Second Lien Agentapplicable, on behalf account of itself the ABL Obligations after the termination of this Agreement shall, in the event of a reinstatement of this Agreement pursuant to this Section 6.5(a), be held in trust for and paid over to the other Second Lien ABL Agent for the benefit of the ABL Secured Parties, 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 to the priorities set forth in this Agreementreinstated ABL Obligations.

Avoidance Issues. If any First Lien Secured Party is required in any Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay to the estate of the Company or any Obligor, because such amount was avoided or ordered to be paid or disgorged for any reason, including without limitation because it was found to be a fraudulent or preferential transfer, other Grantor any amount paid, whether received as a payment from the proceeds of Collateral or other security, enforcement of set off rights, or otherwise, in respect of First Lien Obligations (a “First Lien Recovery”), then such First Lien Secured Party shall be entitled to a reinstatement of its First Lien Obligations with respect to all such recovered amounts on the date of such First Lien Recovery, and from and after the date of such reinstatement the Discharge of First Lien Obligations shall be deemed not to have occurred for all purposes hereunder. If any Second Lien Secured Party 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 paid, whether received as a payment from the proceeds of Collateral or other security, enforcement of set off rights, or otherwise, in respect of Second Lien Obligations (a “Second Lien Recovery” and, together with the First Lien Recovery, a “Recovery”), whether received as proceeds of security, enforcement of any right of set-off or otherwise, then (i) such First Second Lien Secured Party shall have be entitled to a claim under Section 4.03 as if payment in reinstatement of its Second Lien Obligations with respect to all such recovered amounts on the date of such amount had never been made by the Collateral Agent to such First Second Lien Secured Party; provided, however, that any amounts payable by Collateral Agent to a First Lien Secured Party pursuant to this Section 5.05 shall be payable solely from proceeds of Collateral, if anyRecovery, and no First Lien Secured Party shall acquire direct or participating interests in from and after the date of such First Lien Secured Party’s Obligations or be required to pay to Collateral Agent, such First Lien Secured Party or any other Person any amounts in respect reinstatement the Discharge of any such amounts and (ii) the First Second Lien Obligations shall be reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred and the First Lien Obligations Payment Date shall be deemed not to have occurredoccurred for all purposes hereunder. If this Agreement shall have been terminated prior to any 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 until from such time as date of reinstatement and to the extent the Cap Amount was decreased in connection with such payment of the First Lien Obligations Payment Date shall have fully and finally occurred with respect to all such reinstated First Lien Obligations. The Second Lien Agent, on behalf of itself and the other Second Lien Secured Parties, agrees that none of them Cap Amount shall be entitled increased 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 Agreementextent.

Avoidance Issues. If any First Lien Secured Party is required in any Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay to the estate of the Company or any Obligor, because such amount was avoided or ordered to be paid or disgorged for any reason, including without limitation because it was found to be a fraudulent or preferential transfer, other Grantor any amount (a “Recovery”), whether received as proceeds of security, enforcement of any right of set-off or otherwise, then (i) such First Lien Secured Party shall have be entitled to a claim under Section 4.03 as if payment in respect reinstatement of such amount had never been made by the Collateral Agent to such First Lien Secured Party; provided, however, that Obligations with respect to all such recovered amounts. If any amounts payable by Collateral Agent Discharge of First Lien Obligations occurs prior to a First Lien Secured Party pursuant to this Section 5.05 shall be payable solely from proceeds of Collateral, if any, and no First Lien Secured Party shall acquire direct or participating interests in such First Lien Secured Party’s Obligations or be required to pay to Collateral Agent, such First Lien Secured Party or any other Person any amounts in respect of any such amounts and (ii) Recovery but the First Lien Obligations shall be are reinstated to the extent as a result of such Recovery and deemed to be outstanding as if such payment had not occurred and Recovery, the Discharge of First Lien Obligations Payment Date shall for all purposes hereunder be deemed not to have occurredoccurred and any such obligations shall be reinstated under Section 5.6. If this Agreement shall have been terminated prior to such RecoveryRecovery or any finding of the invalidity of a Lien of the First Lien Collateral Agent, 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 until from such time as date of reinstatement. Any and all amounts received by and remaining on deposit with the Second Lien Collateral Agent or received by any Second Lien Secured Party from or in respect of Collateral or the proceeds thereof on account of the Second Lien Obligations after the termination of this Agreement shall, in the event of a reinstatement of this Agreement pursuant to this Section 6.5, be held in trust for and paid over to the First Lien Obligations Payment Date shall have fully and finally occurred with respect Collateral Agent for the benefit of the First Lien Secured Parties, for application to all such the reinstated First Lien Obligations. The Second Lien Agent, on behalf This Section 6.5 shall survive termination of itself and the other Second Lien Secured Parties, 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.

Avoidance Issues. If any First Lien Priority Secured Party is required in any Insolvency Proceeding or otherwise to disgorge, turn over or otherwise pay to the estate of any ObligorLoan Party, because such amount was avoided or ordered to be paid or disgorged for any reason, including without limitation because it was found to be a fraudulent or preferential transfer, any amount (a “Recovery”), whether received as proceeds of security, enforcement of any right of set-off or otherwise, then (i) such First Lien Secured Party shall have a claim under Section 4.03 as if payment in respect of such amount had never been made by the Collateral Agent to such First Lien Secured Party; provided, however, that any amounts payable by Collateral Agent to a First Lien Secured Party pursuant to this Section 5.05 shall be payable solely from proceeds of Collateral, if any, and no First Lien Secured Party shall acquire direct or participating interests in such First Lien Secured Party’s Obligations or be required to pay to Collateral Agent, such First Lien Secured Party or any other Person any amounts in respect of any such amounts and (ii) the First Lien Priority Obligations shall be reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred and the First Lien Priority Obligations Payment Date shall be deemed not to have occurred. 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 until such time as the First Lien Obligations Payment Date shall have fully and finally occurred with respect to all such reinstated First Lien Obligationshereto. The Second Lien Agent, on behalf of itself Priority Secured Parties and the other Second Lien Junior Priority Secured Parties, agrees 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. 5.6. Asset Dispositions in an Insolvency Proceeding. In an Insolvency Proceeding, neither the Second Priority Representative, the Junior Priority Representative nor any other Second Priority Secured Party or Junior Priority Secured Party shall oppose any sale or disposition of any assets of any Loan Party that is supported by the First Priority Secured Parties, and the Second Priority Representative, the Junior Priority Representative and each other Second Priority Secured Party and Junior Priority Secured Party will be deemed to have consented under Section 363 of the Bankruptcy Code (and otherwise) to any sale supported by the First Priority Secured Parties and to have released their Liens on such assets. 5.7.

Avoidance Issues. If any First Lien Secured Party Claimholder is required in any Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay to the estate of any Obligor, because Loan Party any amount paid in respect of First Lien Obligations (other than any such amount was avoided or ordered in respect of the BDK Collateral prior to be paid or disgorged for any reason, including without limitation because it was found to be a fraudulent or preferential transfer, any amount the Discharge of BDK Obligations) (a “Recovery”), whether received as proceeds of security, enforcement of any right of set-off or otherwise, then (i) such First Lien Secured Party Claimholder shall have a claim under Section 4.03 as if payment in respect of such amount had never been made by the Collateral Agent to such First Lien Secured Party; provided, however, that any amounts payable by Collateral Agent be entitled to a First Lien Secured Party pursuant to this Section 5.05 shall be payable solely from proceeds reinstatement of Collateral, if any, and no First Lien Secured Party shall acquire direct or participating interests in such First Lien Secured Party’s Obligations or be required to pay to Collateral Agent, such First Lien Secured Party or any other Person any amounts in respect of any such amounts and (ii) the its First Lien Obligations shall be reinstated with respect to all such recovered amounts on the extent date of such Recovery Recovery, and deemed to be outstanding as if from and after the date of such payment had not occurred and reinstatement the Discharge of First Lien Obligations Payment Date (or, as applicable, payment in full in cash of all Excess First Lien Obligations (including interest accruing thereon on or after the commencement of any Insolvency or Liquidation Proceeding, whether or not such interest would be allowed in such Insolvency or Liquidation Proceeding)) shall be deemed not to have occurredoccurred for all purposes hereunder. 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 until from such time as date of reinstatement. If, prior to the First Discharge of BDK Obligations, any BDK Senior Lien Claimholder is required in any Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay to the estate of any Loan Party any amount paid in respect of BDK Senior Lien Obligations Payment Date (other than any such amount in respect of the Collateral) (a “BDK Recovery”), then such BDK Senior Lien Claimholder shall have fully and finally occurred be entitled to a reinstatement of its BDK Senior Lien Obligations with respect to all such reinstated First recovered amounts on the date of such BDK Recovery, and from and after the date of such reinstatement the Discharge of BDK Senior Lien Obligations. The Second Obligations in respect of such BDK Senior Lien Agent, on behalf of itself and the other Second Lien Secured Parties, agrees that none of them Claimholders shall be entitled deemed not to benefit from any avoidance action affecting have occurred for all purposes hereunder. If this Agreement shall have been terminated prior to such BDK Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair 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 affect the benefit obligations of the parties hereto from such avoidance action otherwise allocable to them date of reinstatement. This Section 6.5 shall instead be allocated and turned over for application in accordance with the priorities set forth in survive termination of this Agreement.

Avoidance Issues. If any First Lien Secured Party Claimholder is required in any Insolvency Proceeding or otherwise to disgorgeturn over, turn over disgorge or otherwise pay to the estate of any Obligor, because such amount was avoided or ordered to be paid or disgorged for any reason, including without limitation because it was found to be a fraudulent or preferential transfer, Grantor any amount paid in respect of Revolving Obligations or Notes Obligations, as the case may be (a “Recovery”), whether received as proceeds of security, enforcement of any right of set-off or otherwise, then (i) such First Lien Secured Party Claimholders shall have a claim under Section 4.03 as if payment in respect of such amount had never been made by the Collateral Agent to such First Lien Secured Party; provided, however, that any amounts payable by Collateral Agent be entitled to a First Lien Secured Party pursuant reinstatement of the Revolving Obligations or the Notes Obligations, as applicable, with respect to this Section 5.05 shall be payable solely from proceeds of Collateral, if anyall such recovered amounts, and no First Lien Secured Party all rights, interests, priorities and privileges recognized in this Agreement shall acquire direct or participating interests in such First Lien Secured Party’s Obligations or be required apply with respect to pay to Collateral Agent, such First Lien Secured Party or any other Person any amounts in respect of any such amounts and Recovery (ii) including that the First Lien Obligations shall be reinstated to the extent amount of such Recovery and deemed to be outstanding is a Revolving Obligation or Notes Obligation, as if such payment had not occurred and the First Lien Obligations Payment Date shall be deemed not to have occurredapplicable, secured by Collateral in accordance with this Agreement). 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 impair, or otherwise affect the obligations of the parties hereto until from such time as date of reinstatement. Notwithstanding anything to the First contrary contained herein, if in any Insolvency Proceeding a determination is made that any prior Lien Obligations Payment Date shall have fully and finally occurred with respect to all such reinstated First Lien Obligations. The Second Lien Agentencumbering any Collateral is not enforceable for any reason then the Revolving Collateral Agent orLender or Revolving Claimholders, on behalf of itself the one hand, and the Notes Collateral Agent or Notes Claimholders, on the other Second Lien Secured Partieshand, agrees having Liens of lower ranking priority as provided in this Agreement agree that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made recovery they may receive with respect to, or allocable to, the value of the assets constituting Collateral subject to an enforceable Lien in accordance with this Agreementfavor of any such lower ranking priority Lien holder or any proceeds thereof shall (for so long as the Discharge of Revolving Obligations has not occurred, whether by preference in the case of assets constituting Revolving Priority Collateral, or otherwisethe Discharge of Note Loan Obligations has not occurred, it being understood in the case of assets constituting Notes Priority Collateral) be segregated and agreed that held in trust and forthwith paid over to the Revolving Collateral AgentLender for the benefit of the Revolving Claimholders or to the Notes Collateral Agent for the benefit of the Note Claimholders, as applicable based on whichever holds or is intended to hold the prior Lien as provided in Section 2.1, in the same form as received without recourse, representation or warranty (other than a representation of the applicable Revolving Collateral AgentLender or Notes Collateral Agent (required to so segregate and pay over) that it has not otherwise sold, assigned, transferred or pledged any right, title or interest in and to such avoidance action distribution or recovery) but with any necessary endorsements or as a court of competent jurisdiction may otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Agreementdirect.

Avoidance Issues. If any First Lien Secured Party is required in any Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay to the estate of any Obligor, because such amount was avoided or ordered to be paid or disgorged for any reason, including without limitation because it was found to be a fraudulent or preferential transfer, Grantor any amount paid in respect of First Lien Obligations (a “Recovery”), whether received as proceeds of security, enforcement of any right of set-off or otherwise, then (i) such First Lien Secured Party shall have a claim under Section 4.03 as if payment in respect of such amount had never been made by the Collateral Agent to such First Lien Secured Party; provided, however, that any amounts payable by Collateral Agent be entitled to a First Lien Secured Party pursuant to this Section 5.05 shall be payable solely from proceeds reinstatement of Collateral, if any, and no First Lien Secured Party shall acquire direct or participating interests in such First Lien Secured Party’s Obligations or be required to pay to Collateral Agent, such First Lien Secured Party or any other Person any amounts in respect of any such amounts and (ii) the First Lien Obligations shall be reinstated with respect to the extent of all such Recovery and deemed to be outstanding as if such payment had not occurred recovered amounts, and the Discharge of First Lien Obligations Payment Date shall be deemed not to have occurredoccurred for all purposes hereunder. If this Agreement shall have been terminated prior to such RecoveryRecovery or any finding of the invalidity of a Lien of the First Lien Collateral Agent, 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 until from such time as date of reinstatement. If any Second Lien Secured Party is required in any Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay to the First estate of any Grantor any amount paid in respect of Second Lien Obligations Payment Date (a “Second Lien Recovery”), then such Second Lien Secured Party shall have fully and finally occurred be entitled to a reinstatement of Second Lien Obligations with respect to all such reinstated First Lien Obligations. The recovered amounts, and the Discharge of Second Lien Obligations shall be deemed not to have occurred for all purposes hereunder. If this Agreement shall have been terminated prior to such Second Lien Recovery or any finding of the invalidity of a Lien of the Second Lien Collateral Agent, on behalf of itself and the other Second Lien Secured Parties, agrees that none of them this Agreement shall be entitled to benefit from any avoidance action affecting reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair 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 affect the benefit obligations of the parties hereto from 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 Agreementdate of reinstatement.

Avoidance Issues. If any First Lien Priority Secured Party is required in any Insolvency Proceeding or otherwise to disgorge, turn over or otherwise pay to the estate of any ObligorLoan Party, because such amount was avoided or ordered to be paid or disgorged for any reason, including including, without limitation limitation, because it was found to be a fraudulent or preferential transfer, any amount (a “Recovery”), whether received as proceeds of security, enforcement of any right of set-off or otherwise, then (i) such First Lien Secured Party shall have a claim under Section 4.03 as if payment in respect of such amount had never been made by the Collateral Agent to such First Lien Secured Party; provided, however, that any amounts payable by Collateral Agent to a First Lien Secured Party pursuant to this Section 5.05 shall be payable solely from proceeds of Collateral, if any, and no First Lien Secured Party shall acquire direct or participating interests in such First Lien Secured Party’s Obligations or be required to pay to Collateral Agent, such First Lien Secured Party or any other Person any amounts in respect of any such amounts and (ii) the First Lien Priority Obligations shall be reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred and the First Lien Priority Obligations Payment Date shall be deemed not to have occurred. 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 until such time as the First Lien Obligations Payment Date shall have fully and finally occurred with respect to all such reinstated First Lien Obligationshereto. The Second Lien Agent, on behalf of itself and the other Second Lien Priority Secured Parties, agrees 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.. 5.6 Asset Dispositions in an Insolvency Proceeding. Neither the Second Priority Representative nor any other Second Priority Secured Party shall, in an Insolvency Proceeding or otherwise, oppose any sale or disposition of any assets of any Loan Party that is supported by the First Priority Secured Parties, and the Second Priority Representative and each other Second Priority Secured Party will be deemed to have consented under Section 363 of the Bankruptcy Code (and otherwise) to any sale supported by the First Priority Secured Parties and to have released their Liens on such assets. 5.7

Avoidance Issues. If any First Lien Secured Party is required in any Insolvency Proceeding or otherwise to disgorge, turn over or otherwise pay or relinquish to a trustee, a receiver, or the estate of any ObligorLoan Party, because such amount was avoided or ordered to be paid paid, disgorged or disgorged relinquished for any reason, including including, without limitation because it was found to be a fraudulent or preferential transfertransfer or because the Liens securing the First Lien Obligations are unperfected or otherwise voided, avoided, invalidated or lapsed, any amount (a “Recovery”), whether received as proceeds of security, enforcement of any right of set-off or otherwise, then (i) such First Lien Secured Party shall have a claim under Section 4.03 as if payment in respect of such amount had never been made by then, subject to the Collateral Agent to such First Lien Secured Party; providedproviso below, however, that any amounts payable by Collateral Agent to a First Lien Secured Party pursuant to this Section 5.05 shall be payable solely from proceeds of Collateral, if any, and no First Lien Secured Party shall acquire direct or participating interests in such First Lien Secured Party’s Obligations or be required to pay to Collateral Agent, such First Lien Secured Party or any other Person any amounts in respect of any such amounts and (ii) the First Lien Obligations shall be reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred and the First Lien Obligations Payment Date shall be deemed not to have occurred. 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 until such time as from the First Lien Obligations Payment Date shall have fully and finally occurred with respect to all such reinstated First Lien Obligationsdate of reinstatement. The Second Lien Agent, on behalf of itself and the other Second Lien Secured Parties, agrees Parties agree that none of them shall be entitled to benefit from any avoidance action affecting Recovery, solely to the extent arising in respect of or otherwise relating on account of each First Lien Secured Party’s interest in the Second Lien Collateral or on account of such First Lien Secured Party’s “secured claim” against any Loan Party within the meaning of section 506 of the Bankruptcy Code, to any distribution extent beyond what they would have been entitled to had such Recovery not occurred (solely to the extent arising in respect of or allocation made on account of such Second Lien Secured Party’s interest in accordance with this Agreementthe Second Lien Collateral or an account of such Second Lien Secured Party’s “secured claim” against any Loan Party within the meaning of section 506 of the Bankruptcy)(in each case, whether by preference or otherwisea “Secured Claim Recovery”), it being understood and agreed that the benefit of such avoidance action Secured Claim Recovery otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Agreement; provided, that notwithstanding anything to the contrary contained herein, (i) any amount received by the Second Lien Secured Parties in respect of a Secured Claim Recovery to be so turned over shall be limited to the amount in excess of the amount they would have received on account of its interest in the Second Lien Collateral or pursuant to its secured claim under section 506 of the Bankruptcy Code had such Secured Claim Recovery not occurred and (ii) except for the amounts specified in the foregoing clause (i) in respect of a Secured Claim Recovery, the Second Lien Secured Parties shall otherwise be entitled to receive and retain any amounts allocable to them in respect of any other Recovery.

Avoidance Issues. If any First Lien Senior Secured Party is required in any Insolvency Proceeding or otherwise to disgorge, turn over or otherwise pay to the estate of any Obligorthe Vendor, because such amount was avoided or ordered to be paid or disgorged for any reason, including without limitation because it was found to be a fraudulent or preferential transfer, any amount (a “Recovery”), whether received as proceeds of security, enforcement of any right of set-off or otherwise, then (i) such First Lien Secured Party shall have a claim under Section 4.03 as if payment in respect of such amount had never been made by the Collateral Agent to such First Lien Secured Party; provided, however, that any amounts payable by Collateral Agent to a First Lien Secured Party pursuant to this Section 5.05 shall be payable solely from proceeds of Collateral, if any, and no First Lien Secured Party shall acquire direct or participating interests in such First Lien Secured Party’s Obligations or be required to pay to Collateral Agent, such First Lien Secured Party or any other Person any amounts in respect of any such amounts and (ii) the First Lien Senior Obligations shall be reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred and the First Lien Senior Obligations Payment Date shall be deemed not to have occurred. 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 until such time as the First Lien Obligations Payment Date shall have fully and finally occurred with respect to all such reinstated First Lien Obligationshereto. The Second Lien Agent, on behalf of itself and the other Second Lien Junior Secured Parties, agrees 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.. 5.6 Asset Dispositions in an Insolvency Proceeding. (a) The Purchaser shall not, in an Insolvency Proceeding or otherwise, oppose any sale or disposition of any Senior Debt Priority Collateral that is supported by the Senior Debt Secured Parties, and the Purchaser will consent (and will be deemed hereunder to have consented), under the applicable Insolvency Laws to any sale of any Senior Debt Priority Collateral supported by the Senior Debt Secured Parties and to have released the Junior Liens on such assets. Notwithstanding the foregoing, it is agreed that no Senior Debt Secured Party shall convey or approve a transfer of any mineral tenures necessary or desirable for the extraction of gold at the Xxxxxxxx Property without requiring such transferee to agree in writing that its interests in such mineral tenures are subject to the obligations of the Vendor under the Royal Gold Purchase Agreement; provided that the Purchaser shall not oppose any such transfer of mineral tenures in compliance with the foregoing requirement. (b) Neither the Senior Debt Representative nor any Senior Debt Secured Party shall, in an Insolvency Proceeding or otherwise, oppose any sale or disposition of any Royal Gold Priority Collateral that is supported by the Purchaser, and the Senior Debt Representative and the Senior Debt Secured Parties will consent (and will be deemed hereunder to have consented) under Section 363 of the Bankruptcy Code or similar provision of any other applicable Insolvency Law, to any sale of any Royal Gold Priority Collateral supported by the Purchaser and to have released the Junior Liens on such assets. 5.7

Avoidance Issues. If any First Lien Secured Party Landlord is required in any Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay to the estate of any Obligor, because such amount was avoided or ordered to be paid or disgorged for any reason, including without limitation because it was found to be a fraudulent or preferential transfer, Tenant any amount paid in respect of CPLV Lease Obligations (a “Landlord Recovery”), then Landlord shall be entitled to a reinstatement of its CPLV Lease Obligations with respect to all such recovered amounts on the date of such Landlord Recovery, and from and after the date of such reinstatement the Discharge of CPLV Lease Obligations shall be deemed not to have occurred for all purposes hereunder. If any Tenant Financing Claimholder is required in any Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay to the estate of Tenant any amount paid in respect of Tenant Financing Obligations (a “Tenant Financing Recovery” and, together with a Landlord Recovery, a “Recovery”), whether received as proceeds then such Tenant Financing Claimholder shall be entitled to a reinstatement of security, enforcement of any right of set-off or otherwise, then (i) its Tenant Financing Obligations with respect to all such First Lien Secured Party shall have a claim under Section 4.03 as if payment in respect recovered amounts on the date of such amount had never been made by the Collateral Agent to such First Lien Secured Party; provided, however, that any amounts payable by Collateral Agent to a First Lien Secured Party pursuant to this Section 5.05 shall be payable solely from proceeds of Collateral, if anyRecovery, and no First Lien Secured Party shall acquire direct or participating interests in such First Lien Secured Party’s Obligations or be required to pay to Collateral Agent, such First Lien Secured Party or any other Person any amounts in respect of any such amounts from and (ii) after the First Lien Obligations shall be reinstated to the extent date of such Recovery and deemed to be outstanding as if such payment had not occurred and reinstatement the First Lien Discharge of Tenant Financing Obligations Payment Date shall be deemed not to have occurredoccurred for all purposes hereunder. If this Agreement shall have been terminated prior to such any 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 until from such time as the First Lien Obligations Payment Date shall have fully and finally occurred with respect to all such reinstated First Lien Obligationsdate of reinstatement. The Second Lien Agent, on behalf of itself and the other Second Lien Secured Parties, agrees parties hereto agree that none of them they shall not 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. This Section 6.4 shall survive termination of this Agreement.

Avoidance Issues. If any First Lien Secured Party is required in any Insolvency Proceeding or otherwise to disgorge, turn over or otherwise pay to the estate of any the Obligor, because such amount was avoided or ordered to be paid or disgorged for any reason, including without limitation because it was found to be a fraudulent or preferential transfer, any amount (a “Recovery”), whether received as proceeds of security, enforcement of any right of set-off or otherwise, then (i) such First Lien Secured Party shall have a claim under Section 4.03 as if payment in respect of such amount had never been made by the Collateral Agent to such First Lien Secured Party; provided, however, that any amounts payable by Collateral Agent to a First Lien Secured Party pursuant to this Section 5.05 shall be payable solely from proceeds of Collateral, if any, and no First Lien Secured Party shall acquire direct or participating interests in such First Lien Secured Party’s Obligations or be required to pay to Collateral Agent, such First Lien Secured Party or any other Person any amounts in respect of any such amounts and (ii) the First Lien Obligations shall be reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred and the First Lien Obligations Payment Date shall be deemed not to have occurred. 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 until such time as the First Lien Obligations Payment Date shall have fully and finally occurred with respect to all such reinstated First Lien Obligations. The Second Lien Agent, on behalf of itself and the other Second Lien Secured Parties, 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.

Avoidance Issues. If any First Lien Secured Party Landlord is required in any Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay to the estate of any Obligor, because such amount was avoided or ordered to be paid or disgorged for any reason, including without limitation because it was found to be a fraudulent or preferential transfer, Tenant any amount paid in respect of Non-CPLV Lease Obligations (a “Landlord Recovery”), then Landlord shall be entitled to a reinstatement of its Non-CPLV Lease Obligations with respect to all such recovered amounts on the date of such Landlord Recovery, and from and after the date of such reinstatement the Discharge of Non-CPLV Lease Obligations shall be deemed not to have occurred for all purposes hereunder. If any Tenant Financing Claimholder is required in any Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay to the estate of Tenant any amount paid in respect of Tenant Financing Obligations (a “Tenant Financing Recovery” and, together with a Landlord Recovery, a “Recovery”), whether received as proceeds then such Tenant Financing Claimholder shall be entitled to a reinstatement of security, enforcement of any right of set-off or otherwise, then (i) its Tenant Financing Obligations with respect to all such First Lien Secured Party shall have a claim under Section 4.03 as if payment in respect recovered amounts on the date of such amount had never been made by the Collateral Agent to such First Lien Secured Party; provided, however, that any amounts payable by Collateral Agent to a First Lien Secured Party pursuant to this Section 5.05 shall be payable solely from proceeds of Collateral, if anyRecovery, and no First Lien Secured Party shall acquire direct or participating interests in such First Lien Secured Party’s Obligations or be required to pay to Collateral Agent, such First Lien Secured Party or any other Person any amounts in respect of any such amounts from and (ii) after the First Lien Obligations shall be reinstated to the extent date of such Recovery and deemed to be outstanding as if such payment had not occurred and reinstatement the First Lien Discharge of Tenant Financing Obligations Payment Date shall be deemed not to have occurredoccurred for all purposes hereunder. If this Agreement shall have been terminated prior to such any 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 until from such time as the First Lien Obligations Payment Date shall have fully and finally occurred with respect to all such reinstated First Lien Obligationsdate of reinstatement. The Second Lien Agent, on behalf of itself and the other Second Lien Secured Parties, agrees parties hereto agree that none of them they shall not 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. This Section 6.4 shall survive termination of this Agreement.