Common use of Preference Issues Clause in Contracts

Preference 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 other Grantor (or any trustee, receiver or similar person therefor) or to or for the benefit of its creditors, because the payment of such amount was declared to be fraudulent or preferential in any respect or for any other reason, any amount (a “Recovery”), whether received as proceeds of security, enforcement of any right of setoff, recoupment or otherwise, then as among the parties hereto, the First Lien Obligations shall be deemed to be reinstated to the extent of such Recovery and to be outstanding as if such payment had not occurred, and such First Lien Secured Party shall be entitled to a future Discharge of First Lien Obligations with respect to all such recovered amounts and shall have all rights hereunder with respect thereto. 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. Any Collateral or First Lien Collateral or proceeds thereof received by any Junior Lien Secured Party prior to the time of such Recovery shall be deemed to have been received prior to the Discharge of First Lien Obligations and subject to the provisions of Section 4.2 and the other terms of this Agreement. The First Lien Representative shall use commercially reasonable efforts to give written notice to the Junior Lien Representative of the occurrence of any such Recovery (provided that the failure to give such notice shall not affect the First Lien Representative’s rights hereunder, except it being understood that until the delivery of such notice to the Junior Lien Representative, the Junior Lien Representative shall not be charged with knowledge of such Recovery or required to take any actions based on such Recovery). The Junior Lien Representative, for itself and on behalf of each Junior Lien Secured Party, hereby agrees that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with the provisions of Section 4.1 and the other terms of 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 provisions of Section 4.1 and the other terms of this Agreement.

Preference Issues. If any First Lien Secured Senior Financing Party is required in any Insolvency or Liquidation Bankruptcy Proceeding or otherwise to disgorge, turn over or otherwise pay to the estate of the Company or any other Grantor (or any trustee, receiver or similar person therefor) or to or for the benefit of its creditors, because the payment of such amount was declared to be fraudulent or preferential in any respect or for any other reason, Senior Borrower any amount (a “Recovery”), whether received by or on behalf of the Senior Borrower, as proceeds of security, enforcement of any right of setoff, recoupment setoff or otherwise) (a "Recovery"), then as among the parties hereto, the First Lien Obligations obligation or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as Senior Obligations, as of the date of such Recovery to the extent of such Recovery and the Discharge of Senior Obligations shall be deemed not to be outstanding as if such payment had not have occurred, and except to the extent such First Lien Secured Party shall be entitled to a future Discharge of First Lien Obligations with respect to all such recovered amounts and shall have all rights hereunder with respect theretoturnover obligation arose from an Improper Act. If this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto. Any Collateral or First Lien Collateral or proceeds thereof received by any Junior Lien Secured Party prior to the time hereto from such date of such Recovery shall be deemed to have been received prior to the Discharge of First Lien Obligations and subject to the provisions of Section 4.2 and the other terms of this Agreementreinstatement. The First Lien Representative shall use commercially reasonable efforts to give written notice to the Junior Lien Representative of the occurrence of any such Recovery (provided that the failure to give such notice shall not affect the First Lien Representative’s rights hereunder, except it being understood that until the delivery of such notice to the Junior Lien Representative, the Junior Lien Representative shall not be charged with knowledge of such Recovery or required to take any actions based on such Recovery). The Junior Lien Representative, for itself and on behalf of each Junior Lien Secured Party, hereby agrees Subordinated Financing Parties agree that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with the provisions of Section 4.1 and the other terms of 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 provisions of Section 4.1 and the other terms of priorities set forth in this Agreement, subject to Section 4.2 and except to the extent such turnover obligation arose from an Improper Act. In the event that any such payment with respect to the Senior Obligations results in a Discharge of Senior Obligations, the Senior Financing Parties agree that the Subordinated Financing Parties shall be permitted to act hereunder as though a Discharge of Senior Obligations had occurred during the period from such payment until the date of such reinstatement of the Senior Obligations and shall have no liability to the Senior Financing Parties for any action taken or omitted to be taken hereunder in accordance therewith, except to the extent such act or omission is found by a final, non-appealable judgment of a court of competent jurisdiction to arise from the gross negligence, bad faith or willful misconduct of the Subordinated Financing Parties.

Preference Issues. If any First Lien Senior Secured Party is required in any Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay any amount to the estate of the Company Company, any Borrower or any other Grantor (or any trustee, administrator, administrative receiver, receiver or similar person Person therefor) or to or for the benefit of its creditors), because the payment of such amount was declared to be or was avoided as fraudulent or preferential or otherwise under Chapter 5 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law or similar law, in any respect or for any other reason, any amount (a “Recovery”), whether received as proceeds of security, enforcement of any right of setoff, recoupment or otherwise, then as among the parties hereto, the First Lien Senior Obligations shall be deemed to be reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred, and such First Lien the Senior Secured Party Parties shall be entitled to the benefits of this Agreement until a future Discharge of First Lien Senior Obligations with respect to all such recovered amounts and shall have all rights hereunder with respect theretoamounts. 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. Any Collateral or First Lien Collateral or proceeds thereof received by any Junior Lien Secured Party prior to the time of such Recovery shall be deemed to have been received prior to the Discharge of First Lien Obligations and subject to the provisions of Section 4.2 and the other terms of this Agreement. The First Lien Representative shall use commercially reasonable efforts to give written notice to the Junior Lien Representative of the occurrence of any such Recovery (provided that the failure to give such notice shall not affect the First Lien Representative’s rights hereunder, except it being understood that until the delivery of such notice to the Junior Lien Representative, the Junior Lien Representative shall not be charged with knowledge of such Recovery or required to take any actions based on such Recovery). The Junior Lien Each Second Priority Representative, for itself and on behalf of each Junior Lien Secured PartySecond Priority Debt Party under its Second Priority Debt Facility, hereby agrees that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with the provisions of Section 4.1 and the other terms of this Agreement, whether by preference preference, fraudulent transfer, transfer at an undervalue 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 provisions of Section 4.1 and the other terms of priorities set forth in this Agreement, the Credit Agreement, the Senior Indenture, the Pari Passu Intercreditor Agreement and/or the Senior Collateral Documents, as applicable.

Preference Issues. If any First Lien Senior Priority Secured Party is required in any Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay any amount to the estate of Holdings, the Company Borrower or any other Grantor (or any trustee, receiver or similar person Person therefor) or to or for the benefit of its creditors), because the payment of such amount was declared to be or avoided as fraudulent or preferential in any respect or for any other reasonreason (any such amount, any amount (a “Recovery”), whether received as proceeds Proceeds of security, enforcement of any right of setoff, recoupment setoff or otherwise, then as among the parties hereto, the First Lien Senior Priority Obligations shall be deemed to be reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred, occurred and such First Lien the Senior Priority Secured Party Parties shall be entitled to the benefits of this Agreement until a future Discharge of First Lien Senior Priority Obligations with respect to all such recovered amounts and shall have all rights hereunder with respect theretoamounts. 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. Any Collateral or First Lien Collateral or proceeds thereof received by any Junior Lien Secured Party prior to the time of such Recovery shall be deemed to have been received prior to the Discharge of First Lien Obligations and subject to the provisions of Section 4.2 and the other terms of this Agreement. The First Lien Representative shall use commercially reasonable efforts to give written notice to the Junior Lien Representative of the occurrence of any such Recovery (provided that the failure to give such notice shall not affect the First Lien Representative’s rights hereunder, except it being understood that until the delivery of such notice to the Junior Lien Representative, the Junior Lien Representative shall not be charged with knowledge of such Recovery or required to take any actions based on such Recovery). The Junior Lien Each Second Priority Representative, for itself and on behalf of each Junior Lien Second Priority Secured PartyParty under its Second Priority Debt Facility, hereby agrees that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with the provisions of Section 4.1 and the other terms of 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 provisions of Section 4.1 and the other terms of priorities set forth in this Agreement. Without limiting the generality of the foregoing, to the extent that Senior Priority Secured Parties are granted adequate protection in the form of payments in the amount of current post-petition fees and expenses, and/or other cash payments, then the Second Priority Representatives, for themselves and on behalf of the Second Priority Secured Parties under the Second Priority Debt Facilities, shall not be prohibited from seeking adequate protection in the form of payments in the amount of current post-petition incurred fees and expenses, and/or other cash payments (as applicable), subject to the right of the Senior Priority Secured Parties to object to the reasonableness of the amounts of fees and expenses or other cash payments so sought by the Second Priority Secured Parties.

Preference Issues. If the First Lien Agent or any First Lien Secured Party Lender is required in any Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay to the estate of the Company First Lien Borrower or any other Grantor (or any trustee, receiver or similar person therefor) or to or for the benefit of its creditors, because the payment of such amount was declared to be fraudulent or preferential in any respect or for any other reason, First Lien Guarantor any amount (a “Recovery”), whether received by or on behalf of the First Lien Borrower or any First Lien Guarantor, as proceeds of security, enforcement of any right of setoff, recoupment setoff or otherwise) (a “Recovery”), then the obligation or part thereof originally intended to be satisfied shall be reinstated and outstanding as among First Lien Obligations as if such payment had not occurred to the parties hereto, extent of such Recovery and the Discharge of First Lien Obligations shall be deemed to be reinstated to the extent of such Recovery and to be outstanding as if such payment had not have occurred, and such First Lien Secured Party shall be entitled to a future Discharge of First Lien Obligations with respect to all such recovered amounts and shall have all rights hereunder with respect thereto. 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 heretohereto from such date of reinstatement. Any Collateral or First The Second Lien Collateral or proceeds thereof received by any Junior Lien Secured Party prior to the time of such Recovery shall be deemed to have been received prior to the Discharge of First Lien Obligations and subject to the provisions of Section 4.2 Agent and the other terms of this Agreement. The First Second Lien Representative shall use commercially reasonable efforts to give written notice to the Junior Lien Representative of the occurrence of any such Recovery (provided that the failure to give such notice shall not affect the First Lien Representative’s rights hereunder, except it being understood that until the delivery of such notice to the Junior Lien Representative, the Junior Lien Representative shall not be charged with knowledge of such Recovery or required to take any actions based on such Recovery). The Junior Lien Representative, for itself and on behalf of each Junior Lien Secured Party, hereby agrees Lenders agree that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with the provisions of Section 4.1 and the other terms of 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 provisions priorities set forth in this Agreement. In the event that any such payment with respect to the First Lien Obligations results in a Discharge of Section 4.1 First Lien Obligations, the First Lien Agent and the other terms First Lien Lenders agree that the Second Lien Agent and the Second Lien Lenders shall be permitted to act hereunder as though a Discharge of this AgreementFirst Lien Obligations had occurred during the period from such payment until the date of such reinstatement of the First Lien Obligations and shall have no liability to the First Lien Agent or the First Lien Lenders for any action taken or omitted to be taken hereunder in accordance therewith, except to the extent such act or omission is found by a final, non-appealable judgment of a court of competent jurisdiction to arise from the gross negligence, bad faith or willful misconduct of the Second Lien Agent or Second Lien Lenders.

Preference Issues. If any First Lien First-Priority 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 Issuer or any other Grantor (or any trustee, receiver or similar person therefor) or to or for the benefit of its creditors), because the payment of such amount was declared to be fraudulent or preferential in any respect or for any other reason, any amount (a “Recovery”), whether received as proceeds of security, enforcement of any right of setoff, recoupment setoff or otherwise, then as among the parties hereto, the First Lien First-Priority Obligations shall be deemed to be reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred, occurred and such First Lien the First-Priority Secured Party Parties shall be remain entitled to a future Discharge of First Lien First-Priority Obligations with respect to all such recovered amounts and shall have all rights hereunder with respect theretountil such time. 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. Any Collateral or First Lien Collateral or proceeds thereof amounts received by any Junior Lien Second-Priority Representative or any other Second-Priority Secured Party prior on account of the Second-Priority Obligations after the termination of this Agreement shall, in the event of a reinstatement of this Agreement pursuant to this Section 6.4, be held in trust for and paid over to the time of such Recovery shall be deemed to have been received prior to the Discharge of First Lien Obligations and subject to the provisions of Section 4.2 and the other terms of this Agreement. The First Lien Representative shall use commercially reasonable efforts to give written notice to the Junior Lien Representative of the occurrence of any such Recovery (provided that the failure to give such notice shall not affect the First Lien Representative’s rights hereunder, except it being understood that until the delivery of such notice to the Junior Lien Representative, the Junior Lien Representative shall not be charged with knowledge of such Recovery or required to take any actions based on such Recovery). The Junior Lien Representative, First-Priority Collateral Agent for itself and on behalf of each Junior Lien Secured Party, hereby agrees that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with the provisions of Section 4.1 and the other terms of 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 the First-Priority Secured Parties, for application in accordance with to the provisions of reinstated First-Priority Obligations. This Section 4.1 and the other terms 6.4 shall survive termination of this Agreement.

Preference Issues. (a) If any First Lien Secured Party Senior Lender is required in any Insolvency or Liquidation Proceeding in respect of PM&C, the Company or otherwise to disgorge, turn over or otherwise pay to the estate of the Company or any other Grantor (or any trustee, receiver or similar person therefor) or to or for the benefit of its creditors, because the payment of such amount was declared to be fraudulent or preferential in any respect or for any other reason, any amount in respect of Common Collateral or proceeds thereof (a “"Common Collateral Recovery”"), whether received as proceeds of security, enforcement of any right of setoff, recoupment or otherwise, then as among the parties hereto, the First Lien Obligations Senior Lender Claims shall be deemed to be reinstated to the extent of such Common Collateral Recovery and to be outstanding as if such payment had not occurred, and such First Lien Secured Party the Senior Lenders shall be entitled to a future Discharge indefeasible payment in full cash of First Lien Obligations such Senior Lender Claims with respect to all such recovered amounts and shall have all rights hereunder with in respect theretoof Common Collateral or proceeds thereof. If this Agreement shall have been terminated prior to such Common Collateral Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties heretohereto from such date of reinstatement. Any Collateral If any Term Loan Lender is required in any Insolvency or First Lien Liquidation Proceeding in respect of the Company or otherwise to turn over or otherwise pay to the estate of the Company any amount in respect of Other Common Collateral or proceeds thereof received by any Junior Lien Secured Party prior (an "Other Common Collateral Recovery"), then the Term Loan Lender Claims shall be reinstated to the time extent of such Other Common Collateral Recovery shall be deemed to have been received prior to the Discharge of First Lien Obligations and subject to the provisions of Section 4.2 and the other terms of this Agreement. The First Lien Representative shall use commercially reasonable efforts to give written notice to the Junior Lien Representative of the occurrence of any such Recovery (provided that the failure to give such notice shall not affect the First Lien Representative’s rights hereunder, except it being understood that until the delivery of such notice to the Junior Lien Representative, the Junior Lien Representative shall not be charged with knowledge of such Recovery or required to take any actions based on such Recovery). The Junior Lien Representative, for itself and on behalf of each Junior Lien Secured Party, hereby agrees that none of them Term Loan Lenders shall be entitled to benefit from any avoidance action affecting indefeasible payment in full in cash of such Term Loan Lender Claims with respect to all such recovered amounts in respect of Other Common Collateral or proceeds thereof. If this Agreement shall have been terminated prior to such Other Common Collateral Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise relating affect the obligations of the parties hereto from such date of reinstatement. (b) If any Term Loan Lender or Senior Lender is required in any Insolvency or Liquidation Proceeding in respect of the Company or otherwise to turn over or otherwise pay to the estate of the Company any distribution amount in respect of Pari Passu Common Collateral or allocation made in accordance with proceeds thereof (a "Pari Passu Common Collateral Recovery"), then the provisions Term Loan Lender Claims or Senior Lender Claims (as the case may be) shall be reinstated to the extent of Section 4.1 such Pari Passu Common Collateral Recovery and the other terms of this Agreement, whether by preference Term Loan Lenders or otherwise, it being understood and agreed that Senior Lenders (as the benefit case may be) shall be entitled to indefeasible prorata payment in full in cash of such avoidance action Term Loan Lender Claims or Senior Lender Claims (as the case may be) with respect to all such recovered amounts in respect of Pari Passu Common Collateral or proceeds thereof. If this Agreement shall have been terminated prior to such Pari Passu Common Collateral Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise allocable to them shall instead be allocated and turned over for application in accordance with affect the provisions obligations of Section 4.1 and the other terms parties hereto from such date of this Agreementreinstatement.

Preference 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 other Grantor (or any trustee, receiver or similar person therefor) or to or for the benefit of its creditors, because the payment of such amount was declared to be fraudulent or preferential in any respect or for any other reason, any amount (a “Recovery”), whether received as proceeds of security, enforcement of any right of setoff, recoupment setoff or otherwise, then as among the parties hereto, the First Lien Obligations shall be deemed to be reinstated to the extent of such Recovery and to be outstanding as if such payment had not occurred, and such First Lien Secured Party shall be entitled to a future Discharge reinstatement of First Lien Obligations with respect to all such recovered amounts and shall have all rights hereunder with respect theretohereunder. 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. Any Collateral or First Lien Collateral or proceeds thereof received by any Junior Lien Secured Party prior to the time of such Recovery shall be deemed to have been received prior to the Discharge of First Lien Obligations and subject to the provisions of Section 4.2 and the other terms of this Agreement. The applicable First Lien Representative Collateral Agent shall use commercially reasonable efforts to give written notice to the Junior Lien Representative Collateral Agent of the occurrence of any such Recovery (provided that the failure to give such notice shall not affect the First Lien Representative’s Collateral Agents’ rights hereunder, except it being understood that until the delivery of such notice to the Junior Lien RepresentativeCollateral Agent, the Junior Lien Representative Collateral Agent shall not be charged with knowledge of such Recovery or required to take any actions based on such Recovery). The Junior Lien Representative, for itself and on behalf of each Junior Lien Secured Party, hereby agrees that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with the provisions of Section 4.1 and the other terms of 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 provisions of Section 4.1 and the other terms of this Agreement.

Preference 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 other Grantor (or any trustee, receiver or similar person therefor) or to or for the benefit of its creditors), because the payment of such amount was declared to be fraudulent or preferential in any respect or for any other reason, any amount (a “Recovery”), whether received as proceeds of security, enforcement of any right of setoff, recoupment setoff or otherwise, then as among the parties hereto, the First Lien Obligations shall be deemed to be reinstated to the extent of such Recovery and to be outstanding as if such payment had not occurred, and such First Lien Secured Party shall be entitled to a future Discharge reinstatement of First Lien Obligations with respect to all such recovered amounts and shall have all rights hereunder with respect theretohereunder. 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. Any Common Collateral or First Lien Collateral or proceeds thereof received by any Junior Lien Secured Party prior to the time of such Recovery shall be deemed to have been received prior to the Discharge of First Lien Obligations and subject to the provisions of Section 4.2 and the other terms of this Agreement4.2. The First Lien Representative Collateral Agent shall use commercially reasonable efforts to give written notice to the Junior Lien Representative Collateral Agent of the occurrence of any such Recovery (provided that the failure to give such notice shall not affect the First Lien Representative’s Collateral Agents rights hereunder, except it being understood that until the delivery of such notice to the Junior Lien RepresentativeCollateral Agent, the Junior Lien Representative Collateral Agent shall not be charged with knowledge of such Recovery or required to take any actions based on such Recovery). The Junior Lien Representative, for itself and on behalf of each Junior Lien Secured Party, hereby agrees that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with the provisions of Section 4.1 and the other terms of 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 provisions of Section 4.1 and the other terms of this Agreement.

Preference Issues. (a) If any First Lien Secured Party Priority Lender is required to or does, in any Insolvency or Liquidation Proceeding or otherwise to disgorgeotherwise, turn over or otherwise pay to the estate of the Company Company, any other Grantor or any other Grantor (or any trustee, receiver or similar person therefor) or to or for the benefit of its creditors, because the payment of such amount was declared to be fraudulent or preferential in any respect or for any other reasonPerson, any amount (a “First Priority Claim Recovery”), whether ) received as proceeds of security, enforcement in respect of any right of setoff, recoupment or otherwiseFirst Priority Collateral, then as among the parties hereto, the First Lien Obligations Priority Claims shall be deemed to be reinstated to the extent of such First Priority Claim Recovery and to be outstanding as if such payment had not occurred, and such the First Lien Secured Party Priority Lenders shall be entitled to a future Discharge receive payment in full in cash (including, in the ease of First Lien Obligations any outstanding letter of credit or unreimbursed draws with respect to letters of credit, cash collateral therefor) with respect to all such recovered amounts and shall have all rights hereunder with respect theretoamounts. If this Agreement shall have been terminated prior to such First Priority Claim Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto. Any Collateral or First Lien Collateral or proceeds thereof received by any Junior Lien Secured Party prior to the time of such Recovery shall be deemed to have been received prior to the Discharge of First Lien Obligations The Second Priority Agent and subject to the provisions of Section 4.2 and the other terms of this Agreement. The First Lien Representative shall use commercially reasonable efforts to give written notice to the Junior Lien Representative of the occurrence of any such Recovery (provided that the failure to give such notice shall not affect the First Lien Representative’s rights hereunder, except it being understood that until the delivery of such notice to the Junior Lien Representative, the Junior Lien Representative shall not be charged with knowledge of such Recovery or required to take any actions based on such Recovery). The Junior Lien Representative, for itself and on behalf of each Junior Lien Secured Party, hereby agrees Second Priority Lender agree that none of them shall be entitled to benefit from any avoidance action (including any First Priority Claim Recovery) affecting or otherwise relating to any distribution or allocation made in accordance with the provisions of Section 4.1 and the other terms of 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 provisions of Section 4.1 and the other terms of priorities set forth in this Agreement. (b) If any Second Priority Lender is required to or does, in any Insolvency or Liquidation Proceeding or otherwise, turn over or otherwise pay to the estate of the Company, any other Grantor, or any other Person, any amount (a “Second Priority Claim Recovery”) received in respect of any Second Priority Collateral, then the Second Priority Claims shall be reinstated to the extent of such Second Priority Claim Recovery and the Second Priority Lenders shall be entitled to receive payment in full in cash (including, in the case of any letter of credit, cash collateral therefor) with respect to all such recovered amounts. If this Agreement shall have been terminated prior to such Second Priority Claim Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto. The First Priority Agent and each First Priority Lender agree that none of them shall be entitled to benefit from any avoidance action (including any Second Priority Claim Recovery) affecting or otherwise relating to any distribution or allocation made in accordance with this Agreement, whether by preference or otherwise, it being understood and agreed that the 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. INTERCREDITOR AGREEMENT BETWEEN CIT FINANCE LLC AND THE BANK OF NEW YORK MELLON/BROADVIEW NETWORKS HOLDINGS, INC AND SUBSIDIARIES

Preference Issues. If any First Lien Senior Priority Secured Party is required in any Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay any amount to the estate of Holdings, the Company Borrower or any other Grantor (or any trustee, receiver or similar person Person therefor) or to or for the benefit of its creditors), because the payment of such amount was declared to be fraudulent or preferential in any respect or for any other reasonreason (any such amount, any amount (a “Recovery”), whether received as proceeds Proceeds of security, enforcement of any right of setoff, recoupment setoff or otherwise, then as among the parties hereto, the First Lien Senior Priority Obligations shall be deemed to be reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred, occurred and such First Lien the Senior Priority Secured Party Parties shall be entitled to the benefits of this Agreement until a future Discharge of First Lien Senior Priority Obligations with respect to all such recovered amounts and shall have all rights hereunder with respect theretoamounts. 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. Any Collateral or First Lien Collateral or proceeds thereof received by any Junior Lien Secured Party prior to the time of such Recovery shall be deemed to have been received prior to the Discharge of First Lien Obligations and subject to the provisions of Section 4.2 and the other terms of this Agreement. The First Lien Representative shall use commercially reasonable efforts to give written notice to the Junior Lien Representative of the occurrence of any such Recovery (provided that the failure to give such notice shall not affect the First Lien Representative’s rights hereunder, except it being understood that until the delivery of such notice to the Junior Lien Representative, the Junior Lien Representative shall not be charged with knowledge of such Recovery or required to take any actions based on such Recovery). The Junior Lien Each Second Priority Representative, for itself and on behalf of each Junior Lien Second Priority Secured PartyParty under its Second Priority Debt Facility, hereby agrees that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with the provisions of Section 4.1 and the other terms of 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 provisions of Section 4.1 and the other terms of priorities set forth in this Agreement. Without limiting the generality of the foregoing, to the extent that Senior Priority Secured Parties are granted adequate protection in the form of payments in the amount of current post-petition fees and expenses, and/or other cash payments, then the Second Priority Representatives, for themselves and on behalf of the Second Priority Secured Parties under the Second Priority Debt Facilities, shall not be prohibited from seeking adequate protection in the form of payments in the amount of current post-petition incurred fees and expenses, and/or other cash payments (as applicable), subject to the right of the Senior Priority Secured Parties to object to the reasonableness of the amounts of fees and expenses or other cash payments so sought by the Second Priority Secured Parties.

Preference Issues. (a) If any First Lien Secured Party Priority Lender 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 other Grantor (or any trustee, receiver or similar person therefor) or to or for the benefit of its creditors, because the payment of such amount was declared to be fraudulent or preferential in any respect or for any other reason, any amount (a “First Priority Claim Recovery”), whether ) received as proceeds of security, enforcement in respect of any right of setoff, recoupment or otherwiseFirst Priority Collateral, then as among the parties hereto, the First Lien Obligations Priority Claims shall be deemed to be reinstated to the extent of such First Priority Claim Recovery and to be outstanding as if such payment had not occurred, and such the First Lien Secured Party Priority Lenders shall be entitled to a future Discharge receive payment in full in cash (including, in the case of First Lien Obligations any letter of credit, cash collateral therefor) with respect to all such recovered amounts and shall have all rights hereunder with respect theretoamounts. If this Agreement shall have been terminated prior to such First Priority Claim Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto. Any Collateral or First Lien Collateral or proceeds thereof received by any Junior Lien Secured Party prior to the time of such Recovery shall be deemed to have been received prior to the Discharge of First Lien Obligations The Second Priority Agent and subject to the provisions of Section 4.2 and the other terms of this Agreement. The First Lien Representative shall use commercially reasonable efforts to give written notice to the Junior Lien Representative of the occurrence of any such Recovery (provided that the failure to give such notice shall not affect the First Lien Representative’s rights hereunder, except it being understood that until the delivery of such notice to the Junior Lien Representative, the Junior Lien Representative shall not be charged with knowledge of such Recovery or required to take any actions based on such Recovery). The Junior Lien Representative, for itself and on behalf of each Junior Lien Secured Party, hereby agrees Second Priority Lender agree that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with the provisions of Section 4.1 and the other terms of 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 provisions of Section 4.1 and the other terms of priorities set forth in this Agreement. (b) If any Second Priority Lender is required in any Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay to the estate of the Company or any other Grantor any amount (a “Second Priority Claim Recovery”) received in respect of any Second Priority Collateral, then the Second Priority Claims shall be reinstated to the extent of such Second Priority Claim Recovery and the Second Priority Lenders shall be entitled to receive payment in full in cash (including, in the case of any letter of credit, cash collateral therefor) with respect to all such recovered amounts. If this Agreement shall have been terminated prior to such Second Priority Claim Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto. The First Priority Agent and each First Priority Lender agree that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with this Agreement, whether by preference or otherwise, it being understood and agreed that the benefit of such avoidance action otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Agreement.

Preference Issues. (a) If any First Lien Secured Party Credit Facility Lender 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 other Grantor (or any trustee, receiver or similar person therefor) or to or for the benefit of its creditors, because the payment of such amount was declared to be fraudulent or preferential in any respect or for any other reason, any amount (a “Credit Facility Claim Recovery”), whether ) received as proceeds of security, enforcement in respect of any right of setoff, recoupment or otherwiseCredit Facility Priority Collateral, then as among the parties hereto, the First Lien Obligations Credit Facility Claims shall be deemed to be reinstated to the extent of such Credit Facility Claim Recovery and to be outstanding as if such payment had not occurred, and such First Lien Secured Party the Credit Facility Lenders shall be entitled to a future Discharge receive payment in full in cash (including, in the case of First Lien Obligations any letter of credit, cash collateral therefor) with respect to all such recovered amounts and shall have all rights hereunder with respect theretoamounts. If this Agreement shall have been terminated prior to such Credit Facility Claim Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto. Any Collateral or First Lien Collateral or proceeds thereof received by any Junior Each Priority Lien Secured Party prior to the time of such Recovery shall be deemed to have been received prior to the Discharge of First Lien Obligations and subject to the provisions of Section 4.2 and the other terms of this Agreement. The First Lien Representative shall use commercially reasonable efforts to give written notice to the Junior Lien Representative of the occurrence of any such Recovery (provided that the failure to give such notice shall not affect the First Lien Representative’s rights hereunder, except it being understood that until the delivery of such notice to the Junior Lien Representative, the Junior Lien Representative shall not be charged with knowledge of such Recovery or required to take any actions based on such Recovery). The Junior Lien Representative, for itself and on behalf of each Junior Subordinated Lien Secured Party, hereby Party agrees that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with the provisions of Section 4.1 and the other terms of 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 provisions of Section 4.1 and the other terms of priorities set forth in this Agreement. (b) If any Priority Lien Secured Party is required in any Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay to the estate of any Grantor any amount (a “Indenture Obligation Recovery”) received in respect of any Indenture Priority Collateral, then the Priority Lien Obligations shall be reinstated to the extent of such Indenture Obligation Recovery and the Priority Lien Secured Parties shall be entitled to receive payment in full in cash (including, in the case of any letter of credit, cash collateral therefor) with respect to all such recovered amounts. If this Agreement shall have been terminated prior to such Indenture Obligation Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto. The Credit Facility Agent and each Credit Facility Lender and each Subordinated Lien Secured Party agree that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with this Agreement, whether by preference or otherwise; it being understood and agreed that the benefit of such avoidance action otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Agreement.

Preference Issues. If any First Lien Senior Priority Secured Party is required in any Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay any amount to the estate of the Company Borrower or any other Grantor (or any trustee, receiver or similar person Person therefor) or to or for the benefit of its creditors), because the payment of such amount was declared to be or avoided as fraudulent or preferential preferential, or otherwise disallowed under Chapter 5 of the Bankruptcy Code or any similar provision of any other Debtor Relief Law, in any respect or for any other reasonreason (any such amount, any amount (a “"Recovery”"), whether received as proceeds Proceeds of security, enforcement of any right of setoff, recoupment setoff or otherwise, then as among the parties hereto, the First Lien Senior Priority Obligations shall be deemed to be reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred, occurred and such First Lien the Senior Priority Secured Party Parties shall be entitled to the benefits of this Agreement until a future Discharge of First Lien Senior Priority Obligations has occurred with respect to all such recovered amounts and shall have all rights hereunder with respect theretoamounts. 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. Any Collateral or First Lien Collateral or proceeds thereof received by any Each Junior Lien Secured Party prior to the time of such Recovery shall be deemed to have been received prior to the Discharge of First Lien Obligations and subject to the provisions of Section 4.2 and the other terms of this Agreement. The First Lien Representative shall use commercially reasonable efforts to give written notice to the Junior Lien Representative of the occurrence of any such Recovery (provided that the failure to give such notice shall not affect the First Lien Representative’s rights hereunder, except it being understood that until the delivery of such notice to the Junior Lien Representative, the Junior Lien Representative shall not be charged with knowledge of such Recovery or required to take any actions based on such Recovery). The Junior Lien Priority Representative, for itself and on behalf of each other Junior Lien Priority Secured PartyParty under the applicable Junior Priority Debt Facility, hereby agrees that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with the provisions of Section 4.1 and the other terms of this Agreement, whether by preference preference, fraudulent transfer, 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 provisions of priorities set forth in this Agreement. This Section 4.1 and the other terms 6.04 shall survive termination of this Agreement.

Preference Issues. If any First Lien Secured Party is required in any Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay any amount to the estate of the Company or any other Grantor (or any trustee, receiver or similar person Person therefor) or to or for the benefit of its creditors), because the payment of such amount was declared to be or avoided as fraudulent or preferential in any respect or for any other reason, any amount (a “Recovery”), whether received as proceeds Proceeds of security, enforcement of any right of setoff, recoupment setoff or otherwise, then as among the parties hereto, the First Lien applicable Series of Secured Debt Obligations shall be deemed to be reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred, occurred and such First Lien Series of Secured Party Parties shall be entitled to the benefits of this Agreement until a future Discharge of First Lien Priority Debt Obligations or a Discharge of Second Priority Debt Obligations, as the case may be, with respect to such Series with respect to all such recovered amounts and shall have all rights hereunder with respect theretoamounts. 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. Any Collateral or First Lien Collateral or proceeds thereof received by any Junior Lien Secured Party prior to the time of such Recovery shall be deemed to have been received prior to the Discharge of First Lien Obligations and subject to the provisions of Section 4.2 and the other terms of this Agreement. The First Lien Representative shall use commercially reasonable efforts to give written notice to the Junior Lien Representative of the occurrence of any such Recovery (provided that the failure to give such notice shall not affect the First Lien Representative’s rights hereunder, except it being understood that until the delivery of such notice to the Junior Lien Representative, the Junior Lien Representative shall not be charged with knowledge of such Recovery or required to take any actions based on such Recovery). The Junior Lien Each Second Priority Representative, for itself and on behalf of each Junior Lien other Second Priority Secured PartyParty under its Second Priority Debt Facility, hereby agrees that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with the provisions of Section 4.1 and the other terms of 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 provisions priorities set forth in this Agreement. As between each Series of Section 4.1 First Priority Debt Obligations, each First Priority Representative, for itself and on behalf of each other First Priority Secured Party under its First Priority Debt Facility, hereby agrees that none of them shall be entitled, vis-à-vis any other First Priority Secured Party 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 other terms 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.

Preference Issues. (a) If any First Lien Secured Party Credit Facility Claim Holder 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 other Grantor (or any trustee, receiver or similar person therefor) or to or for the benefit of its creditors, because the payment of such amount was declared to be fraudulent or preferential in any respect or for any other reason, any amount (a “"Credit Facility Claim Recovery”), whether ") received as proceeds of security, enforcement in respect of any right of setoff, recoupment or otherwiseCredit Facility Priority Collateral, then as among the parties hereto, the First Lien Obligations Credit Facility Claims shall be deemed to be reinstated to the extent of such Credit Facility Claim Recovery and to be outstanding as if such payment had not occurred, and such First Lien Secured Party the Credit Facility Claim Holders shall be entitled to a future Discharge of First Lien Obligations receive payment in full in cash with respect to all such recovered amounts and shall have all rights hereunder with respect theretoamounts. If this Agreement shall have been terminated prior to such Credit Facility Claim Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto. Any Collateral or First Lien Collateral or proceeds thereof received by any Junior Lien Secured Party prior to the time of such Recovery shall be deemed to have been received prior to the Discharge of First Lien Obligations The Indenture Agent and subject to the provisions of Section 4.2 and the other terms of this Agreement. The First Lien Representative shall use commercially reasonable efforts to give written notice to the Junior Lien Representative of the occurrence of any such Recovery (provided that the failure to give such notice shall not affect the First Lien Representative’s rights hereunder, except it being understood that until the delivery of such notice to the Junior Lien Representative, the Junior Lien Representative shall not be charged with knowledge of such Recovery or required to take any actions based on such Recovery). The Junior Lien Representative, for itself and on behalf of each Junior Lien Secured Party, hereby agrees Indenture Holder agree that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with the provisions of Section 4.1 and the other terms of 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 provisions of Section 4.1 and the other terms of priorities set forth in this Agreement. (b) If any Indenture Holder is required in any Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay to the estate of the Company or any other Grantor any amount (a "Indenture Obligation Recovery") received in respect of any Indenture Priority Collateral, then the Indenture Obligations shall be reinstated to the extent of such Indenture Obligation Recovery and the Indenture Holders shall be entitled to receive payment in full in cash (including, in the case of any letter of credit, cash collateral therefor) with respect to all such recovered amounts. If this Agreement shall have been terminated prior to such Indenture Obligation Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto. The Credit Facility Agent and each Credit Facility Claim Holder agree that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with this Agreement, whether by preference or otherwise; it being understood and agreed that the benefit of such avoidance action otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Agreement.

Preference Issues. If any First Lien Senior Priority Secured Party is required in any Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay any amount to the estate of Holdings, the Company Borrower or any other Grantor (or any trustee, receiver or similar person Person therefor) or to or for the benefit of its creditors), because the payment of such amount was declared to be or avoided as fraudulent or preferential in any respect or for any other reasonreason (any such amount, any amount (a “Recovery”), whether received as proceeds Proceeds of security, enforcement of any right of setoff, recoupment setoff or otherwise, then as among the parties hereto, the First Lien Senior Priority Obligations shall be deemed to be reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred, occurred and such First Lien the Senior Priority Secured Party Parties shall be entitled to the benefits of this Agreement until a future Discharge of First Lien Senior Priority Obligations with respect to all such recovered amounts and shall have all rights hereunder with respect theretoamounts. 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. Any Collateral or First Lien Collateral or proceeds thereof received by any Junior Lien Secured Party prior to the time of such Recovery shall be deemed to have been received prior to the Discharge of First Lien Obligations and subject to the provisions of Section 4.2 and the other terms of this Agreement. The First Lien Representative shall use commercially reasonable efforts to give written notice to the Junior Lien Representative of the occurrence of any such Recovery (provided that the failure to give such notice shall not affect the First Lien Representative’s rights hereunder, except it being understood that until the delivery of such notice to the Junior Lien Representative, the Junior Lien Representative shall not be charged with knowledge of such Recovery or required to take any actions based on such Recovery). The Junior Lien Each Second Priority Representative, for itself and on behalf of each Junior Lien Second Priority Secured PartyParty under its Second Priority Debt Facility, hereby agrees that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with the provisions of Section 4.1 and the other terms of 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 provisions of Section 4.1 and the other terms of priorities set forth in this Agreement. Without limiting the generality of the foregoing, to the extent that Senior Priority Secured Parties are granted adequate protection in the form of payments in the amount of current post-petition fees and expenses, and/or other cash payments, then the Second Priority Representatives, for themselves and on behalf of the Second Priority Secured Parties under the Second Priority Debt Facilities, shall not be prohibited from seeking adequate protection in the form of payments in the amount of current post- petition incurred fees and expenses, and/or other cash payments (as applicable), subject to the right of the Senior Priority Secured Parties to object to the reasonableness of the amounts of fees and expenses or other cash payments so sought by the Second Priority Secured Parties.

Preference 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 bankruptcy estate of the Company Borrower or any other Grantor (or any trustee, receiver receiver, or similar person therefor) or to or for the benefit of its creditors), because the payment of such amount was declared to be actually or constructively fraudulent or preferential in any respect or for any other reason, any amount (a “Recovery”), whether received as proceeds of security, enforcement of any right of setoff, recoupment recoupment, or otherwise, then then, as among the parties hereto, the First Lien Obligations shall be deemed to be reinstated to the extent of such Recovery and to be outstanding as if such payment had not occurred, and such First Lien Secured Party shall be entitled to a future Discharge reinstatement of First Lien Obligations with respect to all such recovered amounts and shall have all rights hereunder with respect theretohereunder. 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. Any Common Collateral or First Lien Collateral or proceeds thereof received by any Junior Second Lien Secured Party prior to the time of such Recovery shall be deemed to have been received prior to the Discharge of First Lien Obligations and subject to the provisions of Section 4.2 and the other terms of this Agreement4.2. The First Lien Representative Collateral Agent shall use commercially reasonable efforts to give written notice to the Junior Second Lien Representative Collateral Agent of the occurrence of any such Recovery (provided that the failure to give such notice shall not affect the First Lien Representative’s Collateral Agents rights hereunder, except it being understood that until the delivery of such notice to the Junior Second Lien RepresentativeCollateral Agent, the Junior Second Lien Representative Collateral Agent shall not be charged with knowledge of such Recovery or required to take any actions based on such Recovery). The Junior Lien Representative, for itself and on behalf of each Junior Lien Secured Party, hereby agrees that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with the provisions of Section 4.1 and the other terms of 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 provisions of Section 4.1 and the other terms of this Agreement.

Preference Issues. If any First Lien Secured Party is required in any Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay any amount to the estate of the Company or any other Grantor (or any trustee, receiver or similar person Person therefor) or to or for the benefit of its creditors), because the payment of such amount was declared to be or avoided as fraudulent or preferential in any respect or for any other reason, any amount (a “Recovery”), whether received as proceeds Proceeds of security, enforcement of any right of setoff, recoupment setoff or otherwise, then as among the parties hereto, the First Lien applicable Series of Secured Debt Obligations shall be deemed to be reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred, occurred and such First Lien Series of Secured Party Parties shall be entitled to the benefits of this Agreement until a future Discharge of First Lien Priority Debt Obligations or a Discharge of Second Priority Debt Obligations, as the case may be, with respect to such Series with respect to all such recovered amounts and shall have all rights hereunder with respect theretoamounts. 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. Any Collateral or First Lien Collateral or proceeds thereof received by any Junior Lien Secured Party prior to the time of such Recovery shall be deemed to have been received prior to the Discharge of First Lien Obligations and subject to the provisions of Section 4.2 and the other terms of this Agreement. The First Lien Representative shall use commercially reasonable efforts to give written notice to the Junior Lien Representative of the occurrence of any such Recovery (provided that the failure to give such notice shall not affect the First Lien Representative’s rights hereunder, except it being understood that until the delivery of such notice to the Junior Lien Representative, the Junior Lien Representative shall not be charged with knowledge of such Recovery or required to take any actions based on such Recovery). The Junior Lien Each Second Priority Representative, for itself and on behalf of each Junior Lien other Second Priority Secured PartyParty under its Second Priority Debt Facility, hereby agrees that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or Table of Contents allocation made in accordance with the provisions of Section 4.1 and the other terms of 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 provisions priorities set forth in this Agreement. As between each Series of Section 4.1 First Priority Debt Obligations, each First Priority Representative, for itself and on behalf of each other First Priority Secured Party under its First Priority Debt Facility, hereby agrees that none of them shall be entitled, vis-à-vis any other First Priority Secured Party 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 other terms 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.

Preference Issues. (a) If any First Lien Priority Secured Party is required in any Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay any amount to the estate of the Company or any other Grantor (or any trustee, receiver or similar person Person therefor) or to or for the benefit of its creditors), because the payment of such amount was declared to be or avoided as fraudulent or preferential in any respect or for any other reasonreason (any such amount, any amount (a “First Priority Recovery”), whether received as proceeds of security, enforcement of any right of setoff, setoff or recoupment or otherwise, then as among the parties hereto, the First Lien Priority Obligations shall be deemed to be reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred, occurred and such the First Lien Priority Secured Party Parties shall be entitled to the benefits of this Agreement until a future Discharge of First Lien Priority Obligations with respect to all such recovered amounts and shall have all rights hereunder with respect theretoamounts. If this Agreement shall have been terminated prior to such First Priority Recovery, this Agreement shall be reinstated in full force and effect, and such prior #96358272v26 termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto. The Second Priority Representative, for itself and on behalf of each other Second Priority Secured Party, hereby agrees that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with this Agreement, whether by preference, fraudulent transfer or otherwise, it being understood and agreed that the benefit of such avoidance action otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Agreement. (b) If any Second Priority Secured Party is required in any Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay any amount to the estate of the Company or any other Grantor (or any trustee, receiver or similar Person therefor), because the payment of such amount was declared to be or avoided as fraudulent or preferential in any respect or for any other reason (any such amount, a “Second Priority Recovery”), whether received as proceeds of security, enforcement of any right of setoff or recoupment or otherwise, then the Second Priority Obligations shall be reinstated to the extent of such Second Priority Recovery and deemed to be outstanding as if such payment had not occurred and the Second Priority Secured Parties shall be entitled to the benefits of this Agreement until a Discharge of Second Priority Obligations with respect to all such recovered amounts. If this Agreement shall have been terminated prior to such Second Priority 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. Any Collateral or First Lien Collateral or proceeds thereof received by any Junior Lien Secured Party prior to the time of such Recovery shall be deemed to have been received prior to the Discharge of First Lien Obligations and subject to the provisions of Section 4.2 and the other terms of this Agreement. The First Lien Representative shall use commercially reasonable efforts to give written notice to the Junior Lien Representative of the occurrence of any such Recovery (provided that the failure to give such notice shall not affect the First Lien Representative’s rights hereunder, except it being understood that until the delivery of such notice to the Junior Lien Representative, the Junior Lien Representative shall not be charged with knowledge of such Recovery or required to take any actions based on such Recovery). The Junior Lien Representative, for itself and on behalf of each Junior Lien Secured Party, hereby agrees that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with the provisions of Section 4.1 and the other terms of 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 provisions of Section 4.1 and the other terms of this Agreement.

Preference Issues. (a) If any First First-Lien Secured Party Creditor is required in any Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay to the estate of the Company Borrower or any other Grantor (or any trustee, receiver or similar person therefor) or to or for the benefit of its creditors, because the payment of such amount was declared to be fraudulent or preferential in any respect or for any other reason, any amount (a “"Recovery”"), whether received as proceeds of security, enforcement of any right of setoff, recoupment or otherwise, then as among the parties hereto, the First First-Lien Obligations shall be deemed to be reinstated to the extent of such Recovery and to be outstanding as if such payment had not occurred, and such First the First-Lien Secured Party Creditors shall be entitled to a future Discharge reinstatement of First First-Lien Obligations with respect to all such recovered amounts amounts. In such event, any Discharge of First-Lien Obligations for all purposes of this Agreement shall be deemed to have not occurred (unless and shall have all rights hereunder until same subsequently occurs with respect theretoto the First-Lien Obligations after giving effect to the provisions to this Section 6.5(a)). If this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and effecteffect (and any prior Discharge of First-Lien Obligations shall be deemed not to have occurred), and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties heretohereto from such date of reinstatement. Any Collateral or First amounts received by the Second-Lien Collateral Agent or proceeds thereof received any Second-Lien Creditor on account of the Second-Lien Obligations, or by the Third-Lien Collateral Agent or any Junior Third-Lien Secured Party Creditor on account of the Third-Lien Obligations, after the termination of this Agreement (or any prior Discharge of First-Lien Obligations) shall, in the event of a reinstatement pursuant to this Section 6.5(a), be held in trust for and paid over to the time First-Lien Collateral Agent for the benefit of the First-Lien Creditors, for application to the reinstated First-Lien Obligations. (b) If any Second-Lien Creditor is required in any Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay to the estate of the Borrower or any other Grantor any amount (a "Second-Lien Recovery"), then the Second-Lien Obligations shall be reinstated to the extent of such Second-Lien Recovery and the Second-Lien Creditors shall be entitled to a reinstatement of Second-Lien Obligations with respect to all such recovered amounts. In such event, any Discharge of Second-Lien Obligations for all purposes of this Agreement shall be deemed to have been received prior not occurred (unless and until same subsequently occurs with respect to the Discharge of First Second-Lien Obligations and subject after giving effect to the provisions to this Section 6.5(b)). If this Agreement shall have been terminated prior to such Second-Lien Recovery, this Agreement shall be reinstated in full force and effect (and any prior Discharge of Section 4.2 Second-Lien Obligations shall be deemed not to have occurred), and such prior termination shall not diminish, release, discharge, impair or otherwise affect the other terms obligations of the parties hereto from such date of reinstatement. Any amounts received by the Third-Lien Collateral Agent or any Third-Lien Creditor on account of the Third-Lien Obligations, after the termination of this Agreement. The First Agreement (or any prior Discharge of Second-Lien Representative shall use commercially reasonable efforts Obligations) shall, in the event of a reinstatement pursuant to give written notice this Section 6.5(b), be held in trust for and paid over to the Junior Second-Lien Representative of the occurrence of any such Recovery (provided that the failure to give such notice shall not affect the First Lien Representative’s rights hereunder, except it being understood that until the delivery of such notice to the Junior Lien Representative, the Junior Lien Representative shall not be charged with knowledge of such Recovery or required to take any actions based on such Recovery). The Junior Lien Representative, Collateral Agent for itself and on behalf of each Junior Lien Secured Party, hereby agrees that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with the provisions of Section 4.1 and the other terms of 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 the Second-Lien Creditors, for application in accordance with to the provisions of reinstated Second-Lien Obligations. (c) This Section 4.1 and the other terms 6.5 shall survive termination of this Agreement.