Common use of Exercise of Remedies – Set Off and Tracing of and Priorities in Proceeds Clause in Contracts

Exercise of Remedies – Set Off and Tracing of and Priorities in Proceeds. The Term Agent, for itself and on behalf of the Term Lenders, acknowledges and agrees that, to the extent the Term Agent or any Term Lender exercises its rights of set-off against any Loan Party’s Deposit Accounts, Securities Accounts or other assets, the amount of such set-off shall be deemed to be ABL Priority Collateral to be held and distributed pursuant to Section 4.1; provided, however, that the foregoing shall not apply to any set-off by the Term Agent or Term Lender against any Term Priority Collateral to the extent applied to payment of Term Obligations. The ABL Agent, for itself and on behalf of the ABL Lenders, and the Term Agent, for itself and on behalf of the Term Lenders, further agree that prior to an issuance of any notice of Exercise of Secured Creditor Remedies by such Secured Party, any proceeds of Collateral, whether or not deposited under control agreements, which are used by any Loan Party to acquire other property which is Collateral shall not (solely as between the Agents and the Lenders) be treated as proceeds of Collateral for purposes of determining the relative priorities in the Collateral which was so acquired. In addition, unless and until the Discharge of ABL Obligations occurs, the Term Agent and the Term Lenders each hereby consents to the application, prior to the issuance of a notice of Exercise of Secured Creditor Remedies by the Term Agent, of cash or other proceeds of Collateral, deposited under control agreements (other than any cash held in Term Loan Priority Accounts) to the repayment of ABL Obligations pursuant to the ABL Documents (subject to reborrowing as permitted in the ABL Credit Agreement).

Exercise of Remedies – Set Off and Tracing of and Priorities in Proceeds. The Term Agent, for itself and on behalf of the Term Lenders, acknowledges and agrees that, to the extent the Term Agent or any Term Lender exercises its rights of set-off against any Loan PartyGrantor’s Deposit Accounts, Securities Accounts or other assetsSecurities Accounts, the amount of such set-off shall be deemed to be ABL Priority Collateral to be held and distributed pursuant to Section 4.14.3; provided, however, that the foregoing shall not apply to any set-off by the Term Agent or Term Lender against any Term Priority Collateral to the extent applied to payment of Term Obligations. The ABL Agent, for itself and on behalf of the ABL Lenders, and the Term Agent, for itself and on behalf of the Term Lenders, further agree that prior to an issuance of any notice of Exercise of Any Secured Creditor Remedies by such Secured Party, any proceeds of Collateral, whether or not deposited under control agreements, which are used by any Loan Party Grantor to acquire other property which is Collateral shall not (solely as between the Agents and the Lenders) be treated as proceeds of Collateral for purposes of determining the relative priorities in the Collateral which was so acquired. In addition, unless and until the Discharge of ABL Obligations occurs, the Term Agent and the Term Lenders each hereby consents to the application, prior to the issuance of a notice of Exercise of Any Secured Creditor Remedies by the Term Agent, of cash or other proceeds of Collateral, deposited under control agreements (other than any cash held in Term Loan Priority Accounts) to the repayment of ABL Obligations pursuant to the ABL Documents (subject to reborrowing as permitted in the ABL Credit Agreement)Documents.

Exercise of Remedies – Set Off and Tracing of and Priorities in Proceeds. The Term Collateral Agent, for itself and on behalf of the Term LendersLoan Secured Parties, acknowledges and agrees that, to the extent the Term Collateral Agent or any Term Lender Loan Secured Party exercises its rights of set-off against any Loan Party’s Deposit Accounts, Securities Accounts or other assetsABL Priority Collateral, the amount of such set-off shall be deemed held and distributed pursuant to be Section 4.1(b). The ABL Collateral Agent, on behalf of the ABL Secured Parties, acknowledges and agrees that, to the extent the ABL Collateral Agent or any ABL Secured Party exercises its rights of set-off against any Term Priority Collateral to Collateral, the amount of such set-off shall be held and distributed pursuant to Section 4.1; provided, however, that the foregoing shall not apply to any set-off by the Term Agent or Term Lender against any Term Priority Collateral to the extent applied to payment of Term Obligations4.1(b). The ABL Collateral Agent, for itself and on behalf of the ABL LendersSecured Parties, and the Term Collateral Agent, for itself and on behalf of the Term LendersLoan Secured Parties, further agree that prior to an issuance of an Enforcement Notice or the commencement of any notice of Exercise of Secured Creditor Remedies by such Secured PartyInsolvency or Liquidation Proceeding, any proceeds Proceeds of Collateral, whether or not deposited under in an account subject to an account control agreementsagreement, which are used by any Loan Party Grantor to acquire other property which is Collateral shall not (solely as between the Agents Agents, the ABL Secured Parties and the LendersTerm Loan Secured Parties) be treated as proceeds Proceeds of Collateral for purposes of determining the relative priorities in the Collateral which was so acquired. In addition, unless and until the Discharge of ABL Obligations occurs, subject to Section 4.1(c), the Term Collateral Agent and the Term Lenders Loan Secured Parties each hereby (i) consents to the application, prior to the issuance receipt by the ABL Collateral Agent of a notice of Exercise of Secured Creditor Remedies an Enforcement Notice issued by the Term Collateral Agent, of cash or other proceeds Proceeds of Collateral, deposited under in accounts subject to an account control agreements (other than any cash held in Term Loan Agreement that constitute ABL Priority Accounts) Collateral to the repayment of ABL Obligations pursuant to the ABL Documents Documents, (ii) agrees that such cash or other Proceeds that were applied to the repayment of the ABL Obligations shall be treated as ABL Priority Collateral and, (iii) unless the ABL Collateral Agent has actual knowledge to the contrary, any claim that payments made to the ABL Collateral Agent through the Deposit Accounts and Securities Accounts that are subject to reborrowing such account control agreements are Proceeds of or otherwise constitute Term Priority Collateral is waived by the Term Collateral Agent and the Term Loan Secured Parties; provided that after the receipt by the ABL Collateral Agent of an Enforcement Notice issued by the Term Collateral Agent or the commencement of any Insolvency or Liquidation Proceeding, all identifiable proceeds of Term Priority Collateral shall be treated as permitted Term Priority Collateral. In the event that directly or indirectly some or all of the ABL Priority Collateral and some or all of the Term Priority Collateral are disposed of in a single transaction or series of related transactions in which the aggregate sales price is not allocated between ABL Priority Collateral and Term Priority Collateral being sold (including in connection with or as a result of the sale of the Capital Stock of a Company Subsidiary which shall be treated as a sale of assets), then solely for purposes of this Agreement, the portion of the aggregate sales price determined to be proceeds of the ABL Priority Collateral on the one hand, and Term Priority Collateral on the other hand, shall be allocated based upon, in the case of (i) any ABL Credit Agreement)Priority Collateral consisting of accounts receivable, no less than the book value as assessed on the date of such disposition, and (ii) all other ABL Priority Collateral and Term Priority Collateral, fair market value of such ABL Priority Collateral and Term Priority Collateral sold.

Exercise of Remedies – Set Off and Tracing of and Priorities in Proceeds. The Term Collateral Agent, for itself and on behalf of the Term LendersLoan Secured Parties, acknowledges and agrees that, to the extent the Term Collateral Agent or any Term Lender Loan Secured Party exercises its rights of set-off against any Loan Party’s Deposit Accounts, Securities Accounts or other assetsABL Priority Collateral, the amount of such set-off shall be deemed held and distributed pursuant to be Section 4.1(b). The ABL Collateral Agent, on behalf of the ABL Secured Parties, acknowledges and agrees that, to the extent the ABL Collateral Agent or any ABL Secured Party exercises its rights of set-off against any Term Priority Collateral to Collateral, the amount of such set-off shall be held and distributed pursuant to Section 4.1; provided, however, that the foregoing shall not apply to any set-off by the Term Agent or Term Lender against any Term Priority Collateral to the extent applied to payment of Term Obligations4.1(b). The ABL Collateral Agent, for itself and on behalf of the ABL LendersSecured Parties, and the Term Collateral Agent, for itself and on behalf of the Term LendersLoan Secured Parties, further agree that prior to an issuance of an Enforcement Notice or the commencement of any notice of Exercise of Secured Creditor Remedies by such Secured PartyInsolvency or Liquidation Proceeding, any proceeds Proceeds of Collateral, whether or not deposited under in an account subject to an account control agreementsagreement, which are used by any Loan Party Grantor to acquire other property which is Collateral shall not (solely as between the Agents Agents, the ABL Secured Parties and the LendersTerm Loan Secured Parties) be treated as proceeds Proceeds of Collateral for purposes of determining the relative priorities in the Collateral which was so acquired. In addition, unless and until the Discharge of ABL Obligations occurs, subject to Section 4.1(c), the Term Collateral Agent and the Term Lenders Loan Secured Parties each hereby (i) consents to the application, prior to the issuance receipt by the ABL Collateral Agent of a notice of Exercise of Secured Creditor Remedies an Enforcement Notice issued by the Term Collateral Agent, of cash or other proceeds Proceeds of Collateral, deposited under in accounts subject to an account control agreements (other than any cash held in Term Loan agreement that constitute ABL Priority Accounts) Collateral to the repayment of ABL Obligations pursuant to the ABL Documents Documents, (ii) agrees that such cash or other Proceeds that were applied to the repayment of the ABL Obligations shall be treated as ABL Priority Collateral and, (iii) unless the ABL Collateral Agent has actual knowledge to the contrary, any claim that payments made to the ABL Collateral Agent through the Deposit Accounts and Securities Accounts that are subject to reborrowing such account control agreements are Proceeds of or otherwise constitute Term Priority Collateral is waived by the Term Collateral Agent and the Term Loan Secured Parties; provided that after the receipt by the ABL Collateral Agent of an Enforcement Notice issued by the Term Collateral Agent or the commencement of any Insolvency or Liquidation Proceeding, all identifiable proceeds of Term Priority Collateral shall be treated as permitted Term Priority Collateral. In the event that directly or indirectly some or all of the ABL Priority Collateral and some or all of the Term Priority Collateral are disposed of in a single transaction or series of related transactions in which the aggregate sales price is not allocated between ABL Priority Collateral and Term Priority Collateral being sold (including in connection with or as a result of the sale of the Capital Stock of a Company Subsidiary which shall be treated as a sale of assets), then solely for purposes of this Agreement, the portion of the aggregate sales price determined to be proceeds of the ABL Priority Collateral on the one hand, and Term Priority Collateral on the other hand, shall be allocated based upon, in the case of (i) any ABL Credit Agreement)Priority Collateral consisting of accounts receivable, no less than the book value as assessed on the date of such disposition, and (ii) all other ABL Priority Collateral and Term Priority Collateral, fair market value of such ABL Priority Collateral and Term Priority Collateral sold.

Exercise of Remedies – Set Off and Tracing of and Priorities in Proceeds. The Term Notes Agent, for itself and on behalf of the Term LendersNote Claimholders, acknowledges and agrees that, to the extent the Term Notes Agent or any Term Lender Note Claimholder exercises its rights of set-off against any Loan Party’s Grantors’ Deposit Accounts, Securities Accounts or other assets, the amount of such set-off shall be deemed to be ABL Priority SCF Primary Collateral to be held and distributed pursuant to Section 4.14.3; provided, however, that the foregoing shall not apply to any set-off by the Term Notes Agent or Term Lender against any Term Priority Note Primary Collateral (including the Notes Collateral Account) to the extent applied to payment of Term Note Obligations. The ABL SCF Agent, for itself and on behalf of the ABL LendersSCF Claimholders, and the Term Notes Agent, for itself and on behalf of the Term LendersNote Claimholders, further agree that prior to an issuance of any notice of Exercise of Secured Creditor Remedies by such Secured Partyan Enforcement Notice, any proceeds of Collateral, whether or not deposited under control agreementsAccount Agreements, which are used by any Loan Party Grantor to acquire other property which is Collateral shall not (solely as between the Agents Agents, the SCF Claimholders and the LendersNote Claimholders) be treated as proceeds of Collateral for purposes of determining the relative priorities in the Collateral which was so acquired. In addition, unless and until the Discharge of ABL SCF Obligations occurs, subject to Section 4.2, the Term Notes Agent and the Term Lenders Note Claimholders each hereby consents to the application, prior to the issuance of a notice of Exercise of Secured Creditor Remedies receipt by the Term SCF Agent of an Enforcement Notice issued by the Notes Agent, of cash or other proceeds of Collateral, deposited under control agreements (other than any cash held in Term Loan Priority Accounts) Account Agreements to the repayment of ABL SCF Obligations pursuant to the ABL Documents (subject to reborrowing as permitted in the ABL Credit Agreement)SCF Loan Documents.