Common use of In Furtherance of Lien Priorities Clause in Contracts

In Furtherance of Lien Priorities. Each Party agrees as follows: (a) All payments or distributions of or with respect to the Collateral that are received by any Party contrary to the provisions of this Agreement shall be segregated from other funds and property held by such Party and shall be held in trust for the Party entitled thereto (the "ENTITLED PARTY") in accordance with the provisions of SECTION 3.4 and such Party shall forthwith pay over such remaining proceeds to the Entitled Party in the same form as so received (with any necessary endorsement) to be applied (in the case of cash) or held as Collateral (in the case of non-cash property or securities) in accordance with the provisions hereof and the provisions of the applicable Financing Documents. (b) After the earlier of (i) the date on which all Credit Facility Indebtedness is Fully Paid, and (ii) the first date following the Trigger Date on which the Maximum Amount of Credit Facility Indebtedness is Fully Paid, the Credit Facility Secured Party will promptly execute and deliver all further instruments and documents, and take all further acts that may be necessary, or that the Trustee may reasonably request, to permit the Trustee to evidence the termination of the Lien Priority hereunder, or in furtherance thereof; provided that (x) the Credit Facility Secured Party shall not be required to pay over any payment or distribution, execute any instruments or documents, or take any other action referred to in this SECTION 4.1(b) to the extent that such action would contravene any law, order or other legal requirement, and in the event of a controversy or dispute, the Credit Facility Secured Party may interplead any payment or distribution in any court of competent jurisdiction; and (y) the Credit Facility Secured Party shall not incur any liability to the Trustee for failure to provide any such further instruments and documents or take any further acts, so long as the failure to provide any such further instruments and documents or take any such further act was not the result of malfeasance, willful misconduct or gross negligence. (c) Each Party is hereby authorized to demand specific performance of this Agreement, whether or not either Issuer or any Subsidiary Guarantor shall have complied with any of the provisions hereof applicable to it, at any time when either Party shall have failed to comply with the provisions of this Agreement applicable to it; provided that the remedy of specific performance shall not be available, and the asserting Party shall be free to assert any and all legal defenses it may possess, if such remedy would result in, or otherwise constitute, a violation of the Employee Retirement Income Security Act of 1974, as amended. Each Party hereby irrevocably waives any defense based on the adequacy of a remedy at law, which might be asserted as a bar to such remedy of specific performance. (d) This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Secured Liabilities is, other than as a result of any intentional fraud or gross negligence of the applicable Party, rescinded or must otherwise be returned by the applicable Party upon the insolvency, bankruptcy or reorganization of either Issuer or any Subsidiary Guarantor or otherwise, all as though such payment had not been made.

In Furtherance of Lien Priorities. Each Party agrees as follows: (a) All payments or distributions of or with respect to the Collateral that are received by any Party contrary to the provisions of this Agreement shall be segregated from other funds and property held by such Party and shall be held in trust for the Party entitled thereto (the "ENTITLED PARTY"“Entitled Party”) in accordance with the provisions of SECTION Section 3.4 and such Party shall forthwith pay over such remaining proceeds to the Entitled Party in the same form as so received (with any necessary endorsement) to be applied (in the case of cash) or held as Collateral (in the case of non-cash noncash property or securities) in accordance with the provisions hereof and the provisions of the applicable Financing Documents. (b) After the earlier of (i) the date on which all Credit Facility Indebtedness is Fully Paid, and (ii) the first date following the Trigger Date on which the Maximum Amount of Credit Facility Indebtedness is Fully Paid, the Credit Facility Secured Party Senior Creditor will promptly execute and deliver all further instruments and documents, and take all further acts actions that may be necessary, or that the Trustee may reasonably request, to permit the Trustee to evidence the termination of the Lien Priority hereunder, or in furtherance thereof; provided that that, (x) the Credit Facility Secured Party Senior Creditor shall not be required to pay over any payment or distribution, execute any instruments or documents, or take any other action referred to in this SECTION Section 4.1(b) to the extent that such action would contravene any law, order or other legal requirement, and in the event of a controversy or dispute, the Credit Facility Secured Party Senior Creditor may interplead any payment or distribution in any court of competent jurisdiction; and (y) the Credit Facility Secured Party Senior Creditor shall not incur any liability to the Trustee for failure to provide any such further instruments and documents or take any further acts, so long as the failure to provide any such further instruments and documents or take any such further act was not the result of malfeasance, willful misconduct or gross negligence. (c) Each Party is hereby authorized to demand specific performance of this Agreement, whether or not either the Issuer or any Subsidiary Guarantor shall have complied with any of the provisions hereof applicable to it, at any time when either Party shall have failed to comply with the provisions of this Agreement applicable to it; provided that the remedy of specific performance shall not be available, and the asserting Party shall be free to assert any and all legal defenses it may possess, if such remedy would result in, or otherwise constitute, a violation of the Employee Retirement Income Security Act of 1974, as amended. Each Party hereby irrevocably waives any defense based on the adequacy of a remedy at law, which might be asserted as a bar to such remedy of specific performance. (d) This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Secured Liabilities is, other than as a result of any intentional fraud or gross negligence of the applicable Party, rescinded or must otherwise be returned by the applicable Party upon the insolvency, bankruptcy or reorganization of either the Issuer or any Subsidiary Guarantor or otherwise, all as though such payment had not been made.

In Furtherance of Lien Priorities. Each Party agrees as follows: (a) All payments or distributions of of, or with respect to to, the Collateral that are received by any Party Senior Lien Creditor or Subordinated Lien Creditor contrary to the provisions of this Agreement (including payments or distributions in connection with any Insolvency Proceeding) shall be segregated from other funds and property held by such Party Senior Lien Creditor or Subordinated Lien Creditor, as applicable, and shall be held in trust for the Party party or parties entitled thereto (the "ENTITLED PARTY") in accordance with the provisions of SECTION Section 3.4 (the “Entitled Parties”) and such Party Senior Lien Creditor or Subordinated Lien Creditor, as applicable, shall forthwith pay over such remaining proceeds to the Entitled Party Parties in the same form as so received (with any necessary endorsement) to be applied (in the case of cash) or held as Collateral (in the case of non-cash property or securities) in accordance with the provisions hereof and the provisions of the applicable Financing Documents. (b) After the earlier of (i) the date on which all Credit Facility Indebtedness is Fully Paid, From and (ii) after the first date following the Trigger Date on which the Maximum Amount of Credit Facility Indebtedness Amount is Fully Paid, the Credit Facility Secured Party Senior Lien Administrative Agent will promptly execute and deliver all further instruments and documents, and take all further acts that may be necessary, or that the Trustee Subordinated Lien Creditor Representative may reasonably request, to permit the Trustee Subordinated Lien Creditor Representative to evidence the termination of the Lien Priority hereunder, or in furtherance thereof; provided that (x) the Credit Facility Secured Party Senior Lien Administrative Agent shall not be required to pay over any payment or distribution, execute any instruments or documents, or take any other action referred to in this SECTION 4.1(bclause (b) to the extent that such action would contravene any applicable law, order or other legal requirement, and and, in the event of a controversy or dispute, the Credit Facility Secured Party Senior Lien Administrative Agent may interplead any payment or distribution in any court of competent jurisdiction; and (y) the Credit Facility Secured Party shall not incur any liability to the Trustee for failure to provide any such further instruments and documents or take any further acts, so long as the failure to provide any such further instruments and documents or take any such further act was not the result of malfeasance, willful misconduct or gross negligence. (c) Each Party is hereby authorized to demand specific performance of this Agreement, whether or not either Issuer or any Subsidiary Guarantor the Grantors shall have complied with any of the provisions hereof applicable to it, at any time when either the other Party shall have failed to comply with the provisions of this Agreement applicable to it; provided that the remedy of specific performance shall not be available, and the asserting Party shall be free to assert any and all legal defenses it may possess, if such remedy would result in, or otherwise constitute, a violation of the Employee Retirement Income Security Act of 1974, as amended. Each Party hereby irrevocably waives any defense based on the adequacy of a remedy at law, which might be asserted as a bar to such remedy of specific performance. (d) On or prior to the date hereof, (i) the Subordinated Lien Creditor Representative and the Senior Lien Administrative Agent shall enter into one or more control agreements with respect to the deposit accounts and securities accounts of any Grantor at any financial institution or securities intermediary, constituting part of the Collateral, in each case, in form and substance reasonably acceptable to the Senior Lien Administrative Agent and the Subordinated Lien Creditor Representative, which control agreements shall supersede any existing control agreements between the Senior Lien Administrative Agent, the Subordinated Lien Creditor Representative and such financial institution or securities intermediary, and (ii) the Senior Lien Administrative Agent and the Subordinated Lien Creditor Representative agree to terminate or amend and restate such existing control agreements. (e) This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Secured Liabilities is, other than as a result of any intentional fraud or gross negligence of the applicable Party, rescinded or must otherwise be returned by the applicable Party upon the insolvency, bankruptcy or reorganization of either Issuer or any Subsidiary Guarantor in connection with an Insolvency Proceeding or otherwise, all as though such payment had not been made.

In Furtherance of Lien Priorities. Each Party agrees as follows: (a) All payments or distributions of or with respect to the Collateral that are received by any Party contrary to the provisions of this Agreement shall be segregated from other funds and property held by such Party and shall be held in trust for the Party entitled thereto (the "ENTITLED PARTYEntitled Party") in accordance with the provisions of SECTION Section 3.4 and such Party shall forthwith pay over such remaining proceeds to the Entitled Party in the same form as so received (with any necessary endorsement) to be applied (in the case of cash) or held as Collateral (in the case of non-cash property or securities) in accordance with the provisions hereof and the provisions of the applicable Financing Documents. (b) After the earlier of (i) the date on which all Credit Facility Indebtedness is Fully Paid, and (ii) the first date following the Trigger Date on which the Maximum Amount of Credit Facility Indebtedness is Fully Paid, the Credit Facility Secured Party will promptly execute and deliver all further instruments and documents, and take all further acts that may be necessary, or that the Trustee may reasonably request, to permit the Trustee to evidence the termination of the Lien Priority hereunderhereunder (or, in the event there exists Credit Facility Indebtedness in excess of the Maximum Amount, to evidence or effect the distribution order set forth in clauses "THIRD" and "FOURTH" of Section 3.4 in lieu of such termination), or in furtherance thereof; provided that (x) the Credit Facility Secured Party shall not be required to pay over any payment or distribution, execute any instruments or documents, or take any other action referred to in this SECTION Section 4.1(b) to the extent that such action would contravene any law, order or other legal requirement, and in the event of a controversy or dispute, the Credit Facility Secured Party may interplead any payment or distribution in any court of competent jurisdiction; and (y) the Credit Facility Secured Party shall not incur any liability to the Trustee for failure to provide any such further instruments and documents or take any further acts, so long as the failure to provide any such further instruments and documents or take any such further act was not the result of malfeasance, willful misconduct or gross negligence. (c) Each Party is hereby authorized to demand specific performance of this Agreement, whether or not either Issuer or any Subsidiary Guarantor shall have complied with any of the provisions hereof applicable to it, at any time when either Party shall have failed to comply with the provisions of this Agreement applicable to it; provided that the remedy of specific performance shall not be available, and the asserting Party shall be free to assert any and all legal defenses it may possess, if such remedy would result in, or otherwise constitute, a violation of the Employee Retirement Income Security Act of 1974, as amended. Each Party hereby irrevocably waives any defense based on the adequacy of a remedy at law, which might be asserted as a bar to such remedy of specific performance. (d) This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Secured Liabilities is, other than as a result of any intentional fraud or gross negligence of the applicable Party, rescinded or must otherwise be returned by the applicable Party upon the insolvency, bankruptcy or reorganization of either Issuer or any Subsidiary Guarantor or otherwise, all as though such payment had not been made.

In Furtherance of Lien Priorities. Each Party agrees as follows: (a) All payments or distributions of or with respect to the Collateral that are received by any Party contrary to the provisions of this Agreement (including payments or distributions in connection with any Insolvency Proceeding) shall be segregated from other funds and property held by such Party and shall be held in trust for the Party entitled thereto in accordance with the provisions of Section 3.4 (the "ENTITLED PARTY") in accordance with the provisions of SECTION 3.4 and such Party shall forthwith pay over such remaining proceeds to the Entitled Party in the same form as so received (with any necessary endorsement) to be applied (in the case of cash) or held as Collateral (in the case of non-cash property or securities) in accordance with the provisions hereof and the provisions of the applicable Financing Documents. (b) After the earlier of (i) the first date on which all the Maximum Credit Facility Indebtedness Amount relating to any Senior Lien Documents is Fully Paid, and (ii) the first date following the Trigger Date on which the Maximum Amount of Credit Facility Indebtedness is Fully Paid, the Credit Facility Secured Party each applicable Senior Lien Creditor Representative will promptly execute and deliver all further instruments and documents, and take all further acts that may be necessary, or that the Trustee may reasonably request, to permit the Trustee to evidence the termination of the Lien Priority applicable to such Senior Lien Creditor Representative hereunder, or in furtherance thereof; provided that (x) the Credit Facility Secured Party that, no Senior Lien Creditor Representative shall not be required to pay over any payment or distribution, execute any instruments or documents, or take any other action referred to in this SECTION 4.1(bclause (b) to the extent that such action would contravene any law, order or other legal requirement, and in the event of a controversy or dispute, the Credit Facility Secured Party such Senior Lien Creditor Representative may interplead any payment or distribution in any court of competent jurisdiction; and (y) the Credit Facility Secured Party shall not incur any liability to the Trustee for failure to provide any such further instruments and documents or take any further acts, so long as the failure to provide any such further instruments and documents or take any such further act was not the result of malfeasance, willful misconduct or gross negligence. (c) Each Party is hereby authorized to demand specific performance of this Agreement, whether or not either Issuer the Issuers or any Subsidiary Guarantor shall have complied with any of the provisions hereof applicable to it, at any time when either any other Party shall have failed to comply with the provisions of this Agreement applicable to it; , provided that that, the remedy of specific performance shall not be available, and the asserting Party shall be free to assert any and all legal defenses it may possess, if such remedy would result in, or otherwise constitute, a violation of the Employee Retirement Income Security Act of 1974, as amended. Each Party hereby irrevocably waives any defense based on the adequacy of a remedy at law, which might be asserted as a bar to such remedy of specific performance. (d) Upon the earlier to occur of (x) the Refinancing and (y) ten Business Days after the date hereof, (i) the Trustee and the applicable Senior Lien Creditor Representative shall enter into a control agreement or control agreements with respect to the deposit accounts of any Issuer or Guarantor at any financial institution, constituting part of the Collateral, in form and substance reasonably acceptable to the Trustee and such Senior Lien Creditor Representative, which shall supersede any existing control agreements between the Trustee and such financial institution, and (ii) the Trustee and such Senior Lien Creditor Representative agrees to terminate or amend and restate such existing control agreements. (e) This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Secured Liabilities is, other than as a result of any intentional fraud or gross negligence of the applicable Party, rescinded or must otherwise be returned by the applicable Party upon the insolvency, bankruptcy or reorganization of either Issuer the Issuers or any Subsidiary Guarantor or otherwise, all as though such payment had not been made.

In Furtherance of Lien Priorities. Each Party agrees The Lender and the Subordinated Creditor agree as follows: (a) All Upon any distribution of all or any of the assets of the Borrower or its subsidiaries to creditors of the Borrower or its subsidiaries (whether in cash, securities or other property) in connection with any Insolvency Proceeding, which otherwise would be payable or deliverable upon or with respect to the Collateral, such assets shall be paid or delivered by the Subordinated Creditor directly to the Lender for application (in the case of cash) to or as collateral (in the case of securities or other non-cash property) for the payment or prepayment of the Senior Liabilities until the Senior Liabilities up to the Maximum Senior Indebtedness shall have been Fully Paid. (b) If any Insolvency Proceeding is commenced by or against the Borrower or its subsidiaries, the Subordinated Creditor, to the extent party to any such Insolvency Proceeding, and to the extent it has commenced any action described in Section 3.01, shall (i) use its commercially reasonable efforts to duly and promptly take such action as the Lender may reasonably request to collect the proceeds of Collateral for the account of the Lender at Lender's reasonable cost and expense and to file appropriate claims or proofs of claim in respect of the Subordinated Liabilities and (ii) receive any and all payments or distributions of which may be payable or deliverable upon or with respect to the Collateral and to hold such payments or distributions in trust for the Lender to the extent set forth herein; provided, however, that Subordinated Creditor shall have no liability to the Lender regarding the adequacy of any such proceeds or for any action taken pursuant to Lender's request under clause (i) except for liabilities resulting from Subordinated Creditor's wilful misconduct, bad faith, or gross negligence. (c) All payments or distributions upon or with respect to the Subordinated Liabilities which are received by any Party the Subordinated Creditor contrary to the provisions of this Agreement shall be segregated from other funds and property held by such Party the Subordinated Creditor and shall be held in trust for the Party entitled thereto (the "ENTITLED PARTY") in accordance with the provisions of SECTION 3.4 Lender and such Party Subordinated Creditor shall forthwith pay over such remaining proceeds to the Entitled Party Lender in the same form as so received (with any necessary endorsementendorsement without recourse or warranty) to be applied (in the case of cash) to or held as Collateral (in the case of non-cash property or securities) for the payment or prepayment of the Senior Liabilities up to the Maximum Senior Indebtedness in accordance with the provisions hereof and the provisions terms of the applicable Financing Documents. (b) After Lender Credit Agreement; provided, however, that if, after such application of proceeds, the earlier of (i) the date on which all Credit Facility Indebtedness is Fully Paid, and (ii) the first date following the Trigger Date on which Senior Liabilities up to the Maximum Amount of Credit Facility Senior Indebtedness is are Fully Paid, the Credit Facility Secured Party will promptly execute balance of any amounts received by the Lender from the Subordinated Creditor shall be segregated by the Lender from the Lender's other funds and deliver all further instruments properties and documents, the Lender shall hold such surplus amounts in trust for the Subordinated Creditor and take all further acts that may shall forthwith pay over such amounts to the Subordinated Creditor in the same form as so received (with any necessary endorsement without recourse or warranty) to be necessary, applied (in the case of cash) to or that held as Collateral (in the Trustee may reasonably request, to permit case of non-cash property or securities) for the Trustee to evidence the termination payment or prepayment of the Lien Priority hereunder, or Subordinated Liabilities in furtherance thereof; provided that (x) accordance with the Credit Facility Secured Party shall not be required to pay over any payment or distribution, execute any instruments or documents, or take any other action referred to in this SECTION 4.1(b) to terms of the extent that such action would contravene any law, order or other legal requirement, and in the event of a controversy or dispute, the Credit Facility Secured Party may interplead any payment or distribution in any court of competent jurisdiction; and (y) the Credit Facility Secured Party shall not incur any liability to the Trustee for failure to provide any such further instruments and documents or take any further acts, so long as the failure to provide any such further instruments and documents or take any such further act was not the result of malfeasance, willful misconduct or gross negligenceSubordinated Creditor Indenture. (cd) Each Party of the Lender and the Subordinated Creditor is hereby authorized to demand specific performance of this Agreement, whether or not either Issuer or any Subsidiary Guarantor the Borrower shall have complied with any of the provisions hereof applicable to it, at any time when either Party the other shall have failed to comply with any of the provisions of this Agreement applicable to it; provided that , provided, however, the remedy of specific performance shall not be available, and the asserting Party party shall be free to assert any and all legal defenses it may possess, if such remedy would result in, or otherwise constitute, a violation of the Employee Retirement Income Security Act of 1974, as amended. Each Party of the Lender and the Subordinated Creditor hereby irrevocably waives any defense based on the adequacy of a remedy at law, which might be asserted as a bar to such remedy of specific performance. (de) This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Secured Senior Liabilities is, other than as a result of any intentional fraud wilful misconduct, bad faith, or gross negligence of the applicable PartyLender, rescinded or must otherwise be returned by the applicable Party Lender upon the insolvency, bankruptcy or reorganization of either Issuer or any Subsidiary Guarantor the Borrower or otherwise, all as though such payment had not been made.

In Furtherance of Lien Priorities. Each Party agrees as follows: (a) All all payments or distributions of or with respect to the Collateral that are received by any Party contrary to the provisions of this Agreement shall be segregated from other funds and property held by such Party and shall be held in trust for the Party entitled thereto (the "ENTITLED PARTY") in accordance with the provisions of SECTION Section 3.4 (the "Entitled Party") and such Party shall forthwith pay over such remaining proceeds to the Entitled Party in the same form as so received (with any necessary endorsement) to be applied (in the case of cash) or held as Collateral (in the case of non-cash property or securities) in accordance with the provisions hereof and the provisions of the applicable Financing Documents.; (b) After after the earlier of (i) the date on which all Eligible Credit Facility Indebtedness is Fully PaidPaid (to the maximum amount set forth herein), and (ii) the first date following the Trigger Date on which the Maximum Amount of Eligible Credit Facility Indebtedness is Fully Paid, the Credit Facility Secured Party Lender will promptly execute and deliver all further instruments and documents, and take all further acts that may be necessary, necessary or that the Trustee reasonably may reasonably request, to permit the such Trustee to evidence or in furtherance of the termination of the Lien Priority hereunder; provided, or in furtherance thereof; provided that (xi) the Eligible Credit Facility Secured Party Lender shall not be required to pay over any payment or distribution, execute any instruments or documents, or take any other action referred to in this SECTION 4.1(bclause (b) to the extent that such action would contravene any law, order order, or other legal requirement, requirement and in the event of a controversy or dispute, the Eligible Credit Facility Secured Party Lender may interplead any payment or distribution in any court of competent jurisdiction; , and (yii) the Eligible Credit Facility Secured Party Lender shall not incur any liability to the Trustee for the failure to provide any such further instruments and documents or take any such further acts, so long as the failure to provide any such further instruments and documents or take any such further act was not the result of malfeasance, willful misconduct or gross negligence. (c) Each Party is hereby authorized to demand specific performance of this Agreement, whether or not either Issuer or any Subsidiary Guarantor shall have complied with any of the provisions hereof applicable to it, at any time when either Party shall have failed to comply with the provisions of this Agreement applicable to it; provided that the remedy of specific performance shall not be available, and the asserting Party shall be free to assert any and all legal defenses it may possess, if such remedy would result in, or otherwise constitute, a violation of the Employee Retirement Income Security Act of 1974, as amended. Each Party hereby irrevocably waives any defense based on the adequacy of a remedy at law, which might be asserted as a bar to such remedy of specific performance. (d) This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Secured Liabilities is, other than as a result of any intentional fraud or gross negligence of the applicable Party, rescinded or must otherwise be returned by the applicable Party upon the insolvency, bankruptcy or reorganization of either Issuer or any Subsidiary Guarantor or otherwise, all as though such payment had not been made.take

In Furtherance of Lien Priorities. Each Party agrees as follows: (a) All payments or distributions of or with respect to the Collateral that are received by any Party contrary to the provisions of this Agreement (including, without limitation, payments or distributions in connection with any Insolvency Proceeding) shall be segregated from other funds and property held by such Party and shall be held in trust for the Party entitled thereto (the "ENTITLED PARTY") in accordance with the provisions of SECTION Section 3.4 hereof (the “Entitled Party”) and such Party shall forthwith pay over such remaining proceeds to the Entitled Party in the same form as so received (with any necessary endorsement) to be applied (in the case of cash) or held as Collateral (in the case of non-cash property or securities) in accordance with the provisions hereof and the provisions of the applicable Financing Documents. (b) After the earlier of (i) the first date on which all Credit Facility Indebtedness is Fully Paid, and (ii) the first date following the Trigger Date on which the Maximum Amount of Credit Facility Indebtedness is Fully Paid, the Credit Facility Secured Party Lender will promptly execute and deliver to the Trustee all further instruments and documents, and take all further acts that may be necessary, or that the Trustee may reasonably request, to permit the Trustee to evidence the termination of the Lien Priority hereunder, or in furtherance thereof; provided provided, that (x) the Credit Facility Secured Party Lender shall not be required to pay over any payment or distribution, execute any instruments or documents, or take any other action referred to in this SECTION 4.1(bclause (b) to the extent that such action would contravene any law, order or other legal requirement, and in the event of a controversy or dispute, the Credit Facility Secured Party Lender may interplead any payment or distribution in any court of competent jurisdiction; and (y) the Credit Facility Secured Party shall not incur any liability to the Trustee for failure to provide any such further instruments and documents or take any further acts, so long as the failure to provide any such further instruments and documents or take any such further act was not the result of malfeasance, willful misconduct or gross negligence.. Intercreditor Agreement (c) Each Party is hereby authorized to demand specific performance of this Agreement, whether or not either Issuer Issuers or any Subsidiary Guarantor shall have complied with any of the provisions hereof applicable to it, at any time when either any other Party shall have failed to comply with the provisions of this Agreement applicable to it; provided , provided, that the remedy of specific performance shall not be available, and the asserting Party shall be free to assert any and all legal defenses it may possess, if such remedy would result in, or otherwise constitute, a violation of the Employee Retirement Income Security Act of 1974, as amended. Each Party hereto hereby irrevocably waives any defense based on the adequacy of a remedy at law, which might be asserted as a bar to such remedy of specific performance. Upon the execution of this Agreement, (i) Trustee and Credit Facility Lender shall enter into a control agreement or control agreements (“New Control Agreements”) with respect to the deposit accounts (other than the Excess Cash Flow Account) of any Issuer held at Bank One, NA or any other financial institution, constituting part of the Collateral, in form and substance reasonably acceptable to Trustee and Credit Facility Lender, which shall supercede any existing control agreements between Trustee and Bank One or such financial institution, and (ii) Trustee agrees to terminate such existing control agreements. (d) This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Secured Liabilities is, other than as a result of any intentional fraud or gross negligence of the applicable Party, rescinded or must otherwise be returned by the applicable Party upon the insolvency, bankruptcy or reorganization of either any Issuer or any Subsidiary Guarantor or otherwise, all as though such payment had not been made.

In Furtherance of Lien Priorities. Each Party agrees as follows: (a) All payments or distributions of or with respect to the Collateral that are received by any Party contrary to the provisions of this Agreement shall be segregated from other funds and property held by such Party and shall be held in trust for the Party entitled thereto (the "ENTITLED PARTY") in accordance with the provisions of SECTION Section 3.4 hereof (the "Entitled Party") and such Party shall forthwith pay over such remaining proceeds to the Entitled Party in the same form as so received (with any necessary endorsement) to be applied (in the case of cash) or held as Collateral (in the case of non-cash property or securities) in accordance with the provisions hereof and the provisions of the applicable Financing Documents. (b) After the earlier of (i) the date on which all Credit Facility Indebtedness is Fully Paid, Paid and (ii) the first date following the Trigger Date on which the Maximum Amount of Credit Facility Indebtedness is Fully Paid, the Credit Facility Secured Party Lender will promptly execute and deliver all further instruments and documents, and take all further acts that may be necessary, or that the Trustee may reasonably request, to permit the Trustee to evidence the termination of the Lien Priority hereunder, or in furtherance thereof; provided provided, that (x) the Credit Facility Secured Party Lender shall not be required to pay over any payment or distribution, execute any instruments or documents, or take any other action referred to in this SECTION 4.1(bclause (b) to the extent that such action would contravene any law, order or other legal requirement, and in the event of a controversy or dispute, the Credit Facility Secured Party Lender may interplead any payment or distribution in any court of competent jurisdiction; and (y) the Credit Facility Secured Party shall not incur any liability to the Trustee for failure to provide any such further instruments and documents or take any further acts, so long as the failure to provide any such further instruments and documents or take any such further act was not the result of malfeasance, willful misconduct or gross negligence. (c) Each Party is hereby authorized to demand specific performance of this Agreement, whether or not either Issuer Borrower or any Subsidiary Guarantor shall have complied with any of the provisions hereof applicable to it, at any time when either any other Party shall have failed to comply with the provisions of this Agreement applicable to it; provided , provided, that the remedy of specific performance shall not be available, and the asserting Party shall be free to assert any and all legal defenses it may possess, if such remedy would result in, or otherwise constitute, a violation of the Employee Retirement Income Security Act of 1974, as amended. Each Party hereto hereby irrevocably waives any defense based on the adequacy of a remedy at law, which might be asserted as a bar to such remedy of specific performance. (d) This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Secured Liabilities is, other than as a result of any intentional fraud or gross negligence of the applicable Party, rescinded or must otherwise be returned by the applicable Party upon the insolvency, bankruptcy or reorganization of either Issuer Borrower or any Subsidiary Guarantor or otherwise, all as though such payment had not been made.

In Furtherance of Lien Priorities. Each Party agrees as follows: (a) All payments or distributions of or with respect to the Collateral that are received by any Party contrary to the provisions of this Agreement shall be segregated from other funds and property held by such Party and shall be held in trust for the Party entitled thereto (the "ENTITLED PARTY") in accordance with the provisions of SECTION 3.4 and such Party shall forthwith pay over such remaining proceeds to the Entitled Party in the same form as so received (with any necessary endorsement) to be applied (in the case of cash) or held as Collateral (in the case of non-cash property or securities) in accordance with the provisions hereof and the provisions of the applicable Financing Documents. (b) After the earlier of (i) the date on which all Credit Facility Indebtedness is Fully Paid, and (ii) the first date following the Trigger Date on which the Maximum Amount of Credit Facility Indebtedness is Fully Paid, the Administrative Agent and the Credit Facility Secured Party Lenders will promptly execute and deliver all further instruments and documents, and take all further acts that may be necessary, necessary or that the Trustee may reasonably request, to permit the Trustee to evidence the termination of the Lien Priority hereunder, hereunder or in furtherance thereof; provided PROVIDED that (x) the Administrative Agent and the Credit Facility Secured Party Lenders shall not be required to pay over any payment or distribution, execute any instruments or documents, documents or take any other action referred to in this SECTION 4.1(b) to the extent that such action would contravene any law, order or other legal requirement, and in the event of a controversy or dispute, the Credit Facility Secured Party Administrative Agent may interplead any payment or distribution in any court of competent jurisdiction; and (y) the Credit Facility Secured Party Administrative Agent shall not incur any liability to the Trustee for failure to provide any such further instruments and documents or take any further acts, so long as the failure to provide any such further instruments and documents or take any such further act was not the result of malfeasance, willful misconduct or gross negligence. (c) Each Party is hereby authorized to demand specific performance of this Agreement, whether or not either Issuer the Company or any Subsidiary Guarantor shall have complied with any of the provisions hereof applicable to it, at any time when either Party shall have failed to comply with the provisions of this Agreement applicable to it; provided that the remedy of specific performance shall not be available, and the asserting Party shall be free to assert any and all legal defenses it may possess, if such remedy would result in, or otherwise constitute, a violation of the Employee Retirement Income Security Act of 1974, as amended. Each Party hereby irrevocably waives any defense based on the adequacy of a remedy at law, which might be asserted as a bar to such remedy of specific performance. (d) This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Secured Liabilities is, other than as a result of any intentional fraud or gross negligence of the applicable Party, rescinded or must otherwise be returned by the applicable Party upon the insolvency, bankruptcy or reorganization of either Issuer the Company or any Subsidiary Guarantor or otherwise, all as though such payment had not been made.

In Furtherance of Lien Priorities. Each Party agrees The Lender and the Subordinated Creditor agree as follows: (a) All payments Upon any distribution of all or distributions any of the assets of the Borrower to creditors of the Borrower (whether in cash, securities or other property) in connection with any Insolvency Proceeding, which otherwise would be payable or deliverable upon or with respect to the Collateral securing the Subordinated Liabilities, such assets shall be paid or delivered by the Subordinated Creditor directly to the Lender for application (in the case of cash) to or as collateral (in the case of securities or other non-cash property) for the payment or prepayment of the Senior Liabilities until the amount of $10 million (inclusive of principal, interest, premium and expenses thereof) of Senior Liabilities shall have been Fully Paid. (b) If any Insolvency Proceeding is commenced by or against the Borrower, the Subordinated Creditor, to the extent party to any such Insolvency Proceeding, and to the extent it has commenced any action described in Section 3.01, shall use its commercially reasonable efforts to duly and promptly take such action as the Lender may reasonably request (i) to collect the proceeds of Collateral securing the Subordinated Liabilities for account of the Lender at Lender's reasonable cost and expense and to file appropriate claims or proofs of claim in respect of the Subordinated Liabilities and (ii) to collect and receive any and all payments or distributions which may be payable or deliverable upon or with respect to the Collateral securing the Subordinated Liabilities and to hold such payments or distributions in trust for the Lender, at Lender's reasonable cost and expense, to the extent set forth herein; PROVIDED, HOWEVER, that Subordinated Creditor shall have no liability to the Lender regarding the adequacy of any such proceeds or for any such action subject to wilful misconduct, bad faith or gross negligence. (c) All payments or distributions upon or with respect to the Subordinated Liabilities which are received by any Party the Subordinated Creditor contrary to the provisions of this Agreement shall be segregated from other funds and property held by such Party the Subordinated Creditor and shall be held in trust for the Party entitled thereto (the "ENTITLED PARTY") in accordance with the provisions of SECTION 3.4 Lender and such Party shall forthwith pay over such remaining proceeds to the Entitled Party Lender in the same form as so received (with any necessary endorsement) to be applied (in the case of cash) to or held as Collateral (in the case of non-cash property or securities) for the payment or prepayment of the Senior Liabilities in accordance with the provisions hereof and the provisions terms of the applicable Financing DocumentsLender Credit Agreement; PROVIDED, HOWEVER, after such application of proceeds so that the Senior Liabilities are Fully Paid to the extent set forth herein, the Lender shall segregate any remaining payments and distributions from the Lender's other funds and properties and shall hold such payments and distributions in trust for the Subordinated Creditor and shall be forthwith paid over to the Subordinated Creditor in the same form as so received (with any necessary endorsement) to be applied (in the case of cash) to or held as Collateral (in the case of non-cash property or securities) for the payment or prepayment of the Subordinated Liabilities in accordance with the terms of the Subordinated Creditor Indenture, as further provided in Section 5.14. (bd) After the earlier of (i) the date on which all Credit Facility Indebtedness is Fully Paid, and (ii) the first date following the Trigger Date on which the Maximum Amount of Credit Facility Indebtedness is Fully Paid, the Credit Facility Secured Party will promptly execute and deliver all further instruments and documents, and take all further acts that may be necessary, or that the Trustee may reasonably request, to permit the Trustee to evidence the termination Each of the Lien Priority hereunder, or in furtherance thereof; provided that (x) Lender and the Credit Facility Secured Party shall not be required to pay over any payment or distribution, execute any instruments or documents, or take any other action referred to in this SECTION 4.1(b) to the extent that such action would contravene any law, order or other legal requirement, and in the event of a controversy or dispute, the Credit Facility Secured Party may interplead any payment or distribution in any court of competent jurisdiction; and (y) the Credit Facility Secured Party shall not incur any liability to the Trustee for failure to provide any such further instruments and documents or take any further acts, so long as the failure to provide any such further instruments and documents or take any such further act was not the result of malfeasance, willful misconduct or gross negligence. (c) Each Party Subordinated Creditor is hereby authorized to demand specific performance of this Agreement, whether or not either Issuer or any Subsidiary Guarantor the Borrower shall have complied with any of the provisions hereof applicable to it, at any time when either Party the other shall have failed to comply with any of the provisions of this Agreement applicable to it; provided that , PROVIDED, HOWEVER, the remedy of specific performance shall not be available, and the asserting Party party shall be free to assert any and all legal defenses it may possess, if such remedy would result in, or otherwise constitute, a violation of the Employee Retirement Income Security Act of 1974, as amended. Each Party of the Lender and the Subordinated Creditor hereby irrevocably waives any defense based on the adequacy of a remedy at law, which might be asserted as a bar to such remedy of specific performance. (de) This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Secured Senior Liabilities is, other than as a result of any malfeasance, intentional fraud or gross negligence of the applicable PartyLender, rescinded or must otherwise be returned by the applicable Party Lender upon the insolvency, bankruptcy or reorganization of either Issuer or any Subsidiary Guarantor the Borrower or otherwise, all as though such payment had not been made.

In Furtherance of Lien Priorities. Each Party of the Parties, the Trustee and the Tranche B Lenders agrees as follows: (a) All payments or distributions of or with respect to the Collateral that are received by any Party Party, the Trustee or the Tranche B Lenders contrary to the provisions of this Agreement shall be segregated from other funds and property held by such Party or the Tranche B Lenders, as applicable, and shall be held in trust for the Party entitled thereto (the "ENTITLED PARTY"“Entitled Party”) in accordance with the provisions of SECTION 3.4 Section 4.4 and such Party shall forthwith pay over such remaining proceeds to the Entitled Party in the same form as so received (with any necessary endorsement) to be applied (in the case of cash) or held as Collateral (in the case of non-cash property or securities) in accordance with the provisions hereof and the provisions of the applicable Financing Documents. (b) After the earlier date of (i) the Payment-In-Full of the Senior Indebtedness or the date on which all Credit Facility of consummation of any sale of the Senior Indebtedness is Fully Paid, and (ii) the first date following the Trigger Date on which the Maximum Amount of Credit Facility Indebtedness is Fully Paidunder Section 4.8, the Credit Facility Secured Party Senior Lender Representative will promptly execute and deliver all further instruments and documents, and take all further acts that may be necessary, or that the Trustee Subordinated Lien Collateral Agent may reasonably request, to permit the Trustee Subordinated Lien Collateral Agent to evidence the the (c) termination of the Lien Priority hereunder, or in furtherance thereof; provided that (x) the Credit Facility Secured Party Senior Lender Representative shall not be required to pay over any payment or distribution, execute any instruments or documents, or take any other action referred to in this SECTION 4.1(bSection 5.1(b) to the extent that such action would contravene any applicable law, order or other applicable legal requirement, and in the event of a controversy or dispute, the Credit Facility Secured Party Senior Lender Representative may interplead any payment or distribution in any court of competent jurisdiction; and (y) the Credit Facility Secured Party Senior Lender Representative shall not incur any liability to the Trustee Subordinated Lien Collateral Agent for failure to provide any such further instruments and documents or take any further acts, so long as the failure to provide any such further instruments and documents or take any such further act was not the result acts described in subclause (x) of malfeasance, willful misconduct or gross negligencethis proviso. (cd) Each Party of the Senior Lender Representative and the Subordinated Lien Collateral Agent is hereby authorized to demand specific performance of this Agreement, whether or not either the Issuer or any Subsidiary Guarantor shall have complied with any of the provisions hereof applicable to it, at any time when either such Party shall have failed to comply with the provisions of this Agreement applicable to it; provided that the remedy of specific performance shall not be available, and the asserting Party shall be free to assert any and all legal defenses it may possess, if such remedy would result in, or otherwise constitute, a violation of the Employee Retirement Income Security Act of 1974, as amended. Each Party hereby irrevocably waives any defense based on the adequacy of a remedy at law, which might be asserted as a bar to such remedy of specific performance. (d) This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Secured Liabilities is, other than as a result of any intentional fraud or gross negligence of the applicable Party, rescinded or must otherwise be returned by the applicable Party upon the insolvency, bankruptcy or reorganization of either Issuer or any Subsidiary Guarantor or otherwise, all as though such payment had not been made.

In Furtherance of Lien Priorities. Each Party agrees as follows: (a) All payments or distributions of or with respect to the Credit Agreement Collateral that are received by any Party contrary to the provisions of this Agreement shall be segregated from other funds and property held by such Party and shall be held in trust for the Party entitled thereto (the "ENTITLED PARTYEntitled Party") in accordance with the provisions of SECTION Section 3.4 and such Party shall forthwith pay over such remaining proceeds to the Entitled Party in the same form as so received (with any necessary endorsement) to be applied (in the case of cash) or held as Collateral collateral (in the case of non-cash property or securities) in accordance with the provisions hereof and the provisions of the applicable Financing Documents. In the event the Credit Agreement Secured Party receives any payments or distributions of, or with respect to, any Noteholder Collateral (other than Credit Agreement Collateral), the Credit Agreement Secured Party shall segregate such payments or distributions from other funds and property held by the Credit Agreement Secured Party and such payments or distributions shall be held in trust for the Trustee and the Credit Agreement Secured Party shall forthwith pay over such payments or distributions to the Trustee in the same form as so received (with any necessary endorsement) to be applied or held as collateral in accordance with the provisions of the Indenture Documents. (b) After the earlier of (i) the date on which all Credit Facility Indebtedness is Fully Paid, and (ii) the first date following the Trigger Date on which the Maximum Amount of Credit Facility Indebtedness is Fully Paid, the Credit Facility Secured Party will promptly execute and deliver all further instruments and documents, and take all further acts that may be necessary, or that the Trustee may reasonably request, to permit the Trustee to evidence the termination of the Lien Priority hereunder, or in furtherance thereof; provided that (x) the Credit Facility Secured Party shall not be required to pay over any payment or distribution, execute any instruments or documents, or take any other action referred to in this SECTION Section 4.1(b) to the extent that such action would contravene any law, order or other legal requirement, and in the event of a controversy or dispute, the Credit Facility Secured Party may interplead any payment or distribution in any court of competent jurisdiction; and (y) the Credit Facility Secured Party shall not incur any liability to the Trustee for failure to provide any such further instruments and documents or take any further acts, so long as the failure to provide any such further instruments and documents or take any such further act was not the result of malfeasance, willful misconduct or gross negligence. (c) Each Party is hereby authorized to demand specific performance of this Agreement, whether or not either any Issuer or any Subsidiary Guarantor Credit Party shall have complied with any of the provisions hereof applicable to it, at any time when either Party shall have failed to comply with the provisions of this Agreement applicable to it; provided that the remedy of specific performance shall not be available, and the asserting Party shall be free to assert any and all legal defenses it may possess, if such remedy would result in, or otherwise constitute, a violation of the Employee Retirement Income Security Act of 1974, as amended. Each Party hereby irrevocably waives any defense based on the adequacy of a remedy at law, which might be asserted as a bar to such remedy of specific performance. (d) This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Secured Liabilities is, other than as a result of any intentional fraud or gross negligence of the applicable Party, rescinded or must otherwise be returned by the applicable Party upon the insolvency, bankruptcy or reorganization of either any Issuer or any Subsidiary Guarantor Credit Party or otherwise, all as though such payment had not been made.

In Furtherance of Lien Priorities. Each Party agrees as follows: (a) All payments or distributions of or with respect to the Collateral that are received by any Party contrary to the provisions of this Agreement (including, without limitation, payments or distributions in connection with any Insolvency Proceeding) shall be segregated from other funds and property held by such Party and shall be held in trust for the Party entitled thereto (the "ENTITLED PARTY") in accordance with the provisions of SECTION Section 3.4 hereof (the "Entitled Party") and such Party shall forthwith pay over such remaining proceeds to the Entitled Party in the same form as so received (with any necessary endorsement) to be applied (in the case of cash) or held as Collateral (in the case of non-cash property or securities) in accordance with the provisions hereof and the provisions of the applicable Financing Documents. (b) After the earlier of (i) the date on which all Credit Facility Indebtedness is Fully Paid, Paid and (ii) the first date following the Trigger Date on which the Maximum Amount of Credit Facility Indebtedness is Fully Paid, the Credit Facility Secured Party Lender will promptly execute and deliver all further instruments and documents, and take all further acts that may be necessary, or that the Trustee may reasonably request, to permit the Trustee to evidence the termination of the Lien Priority hereunder, or in furtherance thereof; provided provided, that (x) the Credit Facility Secured Party Lender shall not be required to pay over any payment or distribution, execute any instruments or documents, or take any other action referred to in this SECTION 4.1(bclause (b) to the extent that such action would contravene any law, order or other legal requirement, and in the event of a controversy or dispute, the Credit Facility Secured Party Lender may interplead any payment or distribution in any court of competent jurisdiction; and (y) the Credit Facility Secured Party shall not incur any liability to the Trustee for failure to provide any such further instruments and documents or take any further acts, so long as the failure to provide any such further instruments and documents or take any such further act was not the result of malfeasance, willful misconduct or gross negligence. (c) Each Party is hereby authorized to demand specific performance of this Agreement, whether or not either Issuer Borrower or any Subsidiary Guarantor shall have complied with any of the provisions hereof applicable to it, at any time when either any other Party shall have failed to comply with the provisions of this Agreement applicable to it; , provided that the remedy of specific performance shall not be available, and the asserting Party shall be free to assert any and all legal defenses it may possess, if such remedy would result in, or otherwise constitute, a violation of the Employee Retirement Income Security Act of 1974, as amended. Each Party hereto hereby irrevocably waives any defense based on the adequacy of a remedy at law, which might be asserted as a bar to such remedy of specific performance. (d) This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Secured Liabilities is, other than as a result of any intentional fraud or gross negligence of the applicable Party, rescinded or must otherwise be returned by the applicable Party upon the insolvency, bankruptcy or reorganization of either Issuer Borrower or any Subsidiary Guarantor or otherwise, all as though such payment had not been made.

In Furtherance of Lien Priorities. Each Party agrees as follows: (a) All payments or distributions of or with respect to the Collateral that are received by any Party contrary to the provisions of this Agreement shall be segregated from other funds and property held by such Party and shall be held in trust for the Party entitled thereto (the "ENTITLED PARTY") in accordance with the provisions of SECTION 3.4 and such Party shall forthwith pay over such remaining proceeds to the Entitled Party in the same form as so received (with any necessary endorsement) to be applied (in the case of cash) or held as Collateral (in the case of non-cash property or securities) in accordance with the provisions hereof and the provisions of the applicable Financing Documents. (b) After the earlier of (i) the date on which all Credit Facility Indebtedness is Fully Paid, and (ii) the first date following the Trigger Date on which the Maximum Amount of Credit Facility Indebtedness is Fully Paid, the Credit Facility Secured Party will promptly execute and deliver all further instruments and documents, and take all further acts that may be necessary, or that the Trustee may reasonably request, to permit the Trustee to evidence the termination of the Lien Priority hereunder, or in furtherance thereof; provided that (x) the Credit Facility Secured Party shall not be required to pay over any payment or distribution, execute any instruments or documents, or take any other action referred to in this SECTION 4.1(b4.1(B) to the extent that such action would contravene any law, order or other legal requirement, and in the event of a controversy or dispute, the Credit Facility Secured Party may interplead any payment or distribution in any court of competent jurisdiction; and (y) the Credit Facility Secured Party shall not incur any liability to the Trustee for failure to provide any such further instruments and documents or take any further acts, so long as the failure to provide any such further instruments and documents or take any such further act was not the result of malfeasance, willful misconduct or gross negligence. (c) Each Party is hereby authorized to demand specific performance of this Agreement, whether or not either Issuer or any Subsidiary Guarantor shall have complied with any of the provisions hereof applicable to it, at any time when either Party shall have failed to comply with the provisions of this Agreement applicable to it; provided that the remedy of specific performance shall not be available, and the asserting Party shall be free to assert any and all legal defenses it may possess, if such remedy would result in, or otherwise constitute, a violation of the Employee Retirement Income Security Act of 1974, as amended. Each Party hereby irrevocably waives any defense based on the adequacy of a remedy at law, which might be asserted as a bar to such remedy of specific performance. (d) This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Secured Liabilities is, other than as a result of any intentional fraud or gross negligence of the applicable Party, rescinded or must otherwise be returned by the applicable Party upon the insolvency, bankruptcy or reorganization of either Issuer or any Subsidiary Guarantor or otherwise, all as though such payment had not been made.