Common use of Set-Off and Tracing of and Priorities in Proceeds Clause in Contracts

Set-Off and Tracing of and Priorities in Proceeds. The Senior Secured Notes Agent, on behalf of the Senior Secured Notes Claimholders, and the Junior Secured Notes Agent, on behalf of the Junior Secured Notes Claimholders, acknowledge and agree that, to the extent the Senior Secured Notes Agent, any Senior Secured Notes Claimholder, the Junior Secured Notes Agent or any Junior Secured Notes Claimholder exercises its rights of set-off against any ABL Priority Collateral, the amount of such set-off shall be held and distributed pursuant to Section 4.1. The ABL Agent, for itself and on behalf of the ABL Claimholders, the Senior Secured Notes Agent, for itself and on behalf of the Senior Secured Notes Claimholders, and the Junior Secured Notes Agent, for itself and on behalf of the Junior Secured Notes Claimholders, each further agrees that, solely as between Agents and Claimholders, prior to an issuance of an Enforcement Notice or the commencement of any Insolvency or Liquidation Proceeding, any Collateral purchased or acquired by a Grantor using Proceeds of Collateral shall be treated as Collateral, and not Proceeds of Collateral, for purposes of determining the relative priorities in such Collateral. In addition, unless and until the Discharge of ABL Obligations occurs, subject to Section 4.2, the Senior Secured Notes Agent, on behalf of itself and the Senior Secured Notes Claimholders, and the Junior Secured Notes Agent, on behalf of itself and the Junior Secured Notes Claimholders, each hereby consents to the application, prior to the receipt by the ABL Agent of an Enforcement Notice issued by the Senior Secured Notes Agent, and thereafter, except as it relates to identifiable proceeds of Senior Notes Priority Collateral, of cash or other Proceeds of Collateral, deposited under Account Agreements in favor of the ABL Agent to the repayment of ABL Obligations pursuant to the ABL Loan Documents.

Set-Off and Tracing of and Priorities in Proceeds. The Senior Secured Notes (a) Note Security Agent, on behalf of the Senior Secured Notes ClaimholdersNote Claimholders represented by it, acknowledges and the Junior Secured Notes Agent, on behalf of the Junior Secured Notes Claimholders, acknowledge and agree agrees that, to the extent the Senior Secured Notes Agent, any Senior Secured Notes Claimholder, the Junior Secured Notes Note Security Agent or any Junior Secured Notes other Note Claimholder exercises its rights of set-off against any ABL Priority Collateral, the amount of such set-off shall be held and distributed pursuant to Section 4.14.1(a). The ABL Agent, on behalf of the ABL Claimholders represented by it, acknowledges and agrees that, to the extent ABL Agent or any other ABL Claimholder exercises its rights to set-off against any Note Priority Collateral, the amount of such set-off shall be held and distributed pursuant to Section 4.1(b). (b) ABL Agent, for itself and on behalf of the each other ABL ClaimholdersClaimholder represented by it, the Senior Secured Notes and Note Security Agent, for itself and on behalf of the Senior Secured Notes Claimholderseach other Note Claimholder represented by it, and the Junior Secured Notes Agent, for itself and on behalf of the Junior Secured Notes Claimholders, each further agrees that, solely as between Agents and Claimholders, agree that prior to an issuance of an Enforcement Notice Notice, or the commencement of any Insolvency or Liquidation Proceeding, any Collateral purchased proceeds of Collateral, whether or acquired not deposited under Account Agreements, used by a any Grantor using Proceeds of to acquire property constituting Collateral shall not (solely as between ABL Agent and Note Security Agent and as between the ABL Claimholders and the Note Claimholders) be treated as Collateral, and not Proceeds proceeds of Collateral, Collateral for purposes of determining the relative priorities of the ABL Claimholders and the Note Claimholders in such Collateral. In addition, unless and until the Discharge of Collateral so acquired. (c) ABL Obligations occurs, subject to Section 4.2, the Senior Secured Notes Agent, on behalf of itself and the Senior Secured Notes ClaimholdersABL Claimholders represented by it, and the Junior Secured Notes Note Security Agent, on behalf of itself and the Junior Secured Notes ClaimholdersNote Claimholders represented by it, each hereby consents to the application, prior to the receipt by the ABL Agent agrees that after an issuance of an Enforcement Notice issued by Notice, each such Person shall cooperate in good faith to identify the Senior Secured Notes Agent, and thereafter, except as it relates to identifiable proceeds of Senior Notes the ABL Priority Collateral and the Note Priority Collateral, as the case may be (it being agreed that after an issuance of cash or other Proceeds of Collateralan Enforcement Notice, unless ABL Agent has actual knowledge to the contrary, all funds deposited under Account Agreements (other than any Account Agreement to which the Note Priority Collateral Account or the Note Specified Blocked Account is subject) and then applied to the ABL Obligations shall be presumed to be ABL Priority Collateral (a presumption that can be rebutted by Note Security Agent); provided, however, that neither any ABL Claimholder nor any Note Claimholder shall be liable or in favor any way responsible for any claims or damages from conversion of the ABL Agent Priority Collateral or Note Priority Collateral, as the case may be (it being understood and agreed that (A) the only obligation of any ABL Claimholder is to pay over to Note Security Agent, in the repayment same form as received, with any necessary endorsements, all proceeds that such ABL Claimholder received that have been identified as proceeds of the Note Priority Collateral and (B) the only obligation of any Note Claimholder is to pay over to ABL Agent, in the same form as received, with any necessary endorsements, all proceeds that such Note Claimholder received that have been identified as proceeds of the ABL Priority Collateral). Each of ABL Obligations pursuant to Agent and Note Security Agent may reasonably request in writing from the other agents an accounting of the identification of the proceeds of Collateral (and ABL Loan DocumentsAgent and Note Security Agent, as the case may be, upon which such request is made shall deliver such accounting reasonably promptly after such request is made).

Set-Off and Tracing of and Priorities in Proceeds. The Senior Secured Notes Agent, on behalf of the Senior Secured Notes Claimholders, and the Junior Secured Notes Agent, on behalf of the Junior Secured Notes Claimholders, acknowledge and agree that, to the extent the Senior Secured Notes Agent, any Senior Secured Notes Claimholder, the Junior Secured Notes Agent or any Junior Secured Notes Claimholder exercises its rights of set-off against any ABL Priority Collateral, the amount of such set-off shall be held and distributed pursuant to Section 4.1. The ABL Agent, for itself and on behalf of the ABL ClaimholdersSecured Parties, and the Senior Secured Notes AgentPari Term Loan Debt Agents, for itself themselves and on behalf of the Senior Pari Term Loan Debt Secured Notes ClaimholdersParties, and the Junior Secured Notes Agent, for itself and on behalf of the Junior Secured Notes Claimholders, each further agrees that, solely as between Agents and Claimholders, agree that prior to an issuance of an any Enforcement Notice or the commencement of any Insolvency or Liquidation Proceeding, any Collateral purchased proceeds of Collateral, whether or acquired not deposited under any control agreements, which are used by a any Grantor using Proceeds of to acquire other property which is Collateral shall not (solely as between the ABL Agent, the ABL Secured Parties, the Pari Term Loan Debt Agents and the Pari Term Loan Debt Secured Parties) be treated as Collateral, and not Proceeds proceeds of Collateral, Collateral for purposes of determining the relative priorities in such Collateralthe Collateral which was so acquired. In addition, unless and until the Discharge of ABL Obligations occurs, subject to Section 4.2, the Senior Secured Notes Agent, on behalf of itself Pari Term Loan Debt Agents and the Senior Pari Term Loan Debt Secured Notes Claimholders, and the Junior Secured Notes Agent, on behalf of itself and the Junior Secured Notes Claimholders, Parties each hereby consents to the application, prior to the receipt by the ABL Agent of an Enforcement Notice issued by the Senior Secured Notes any Pari Term Loan Debt Agent, and thereafter, except as it relates to identifiable proceeds of Senior Notes Priority Collateral, of cash or other Proceeds proceeds of Collateral, deposited under Account Agreements in favor of control agreements with the ABL Collateral Agent to the repayment of ABL Obligations pursuant to the ABL Debt Documents; provided that after the receipt by the ABL Agent of an Enforcement Notice from any Pari Term Loan DocumentsDebt Agent, any identifiable proceeds of Pari Term Debt Priority Collateral (whether or not deposited under any control agreements with the ABL Agent) shall be treated as Pari Term Debt Priority Collateral.

Set-Off and Tracing of and Priorities in Proceeds. The Senior Secured Notes Each Pari Term Loan Debt Agent, on behalf of the Senior Pari Term Loan Debt Secured Notes ClaimholdersParties, acknowledges and the Junior Secured Notes Agent, on behalf of the Junior Secured Notes Claimholders, acknowledge and agree agrees that, to the extent the Senior Secured Notes Agent, any Senior Secured Notes Claimholder, the Junior Secured Notes Pari Term Loan Debt Agent or any Junior Pari Term Loan Debt Secured Notes Claimholder Party exercises its any rights of set-off against any ABL Priority First Lien Collateral, the amount of such set-off shall be held and distributed pursuant to Section 4.12.04(b). The ABL Agent, on behalf of the ABL Secured Parties, acknowledges and agrees that, to the extent the ABL Agent or any ABL Secured Party exercises any rights of set-off against any ABL First Lien Collateral, the amount of such set-off shall be held and distributed pursuant to Section 2.04(b). The ABL Agent, for itself and on behalf of the ABL ClaimholdersSecured Parties, and the Senior Secured Notes AgentPari Term Loan Debt Agents, for itself themselves and on behalf of the Senior Pari Term Loan Debt Secured Notes ClaimholdersParties, and the Junior Secured Notes Agent, for itself and on behalf of the Junior Secured Notes Claimholders, each further agrees that, solely as between Agents and Claimholders, agree that prior to an issuance of an any Enforcement Notice with respect to the Senior Secured Obligations Collateral or the commencement of any Insolvency or Liquidation Proceeding, any Collateral purchased proceeds of Collateral, whether or acquired not deposited under Account Agreements, which are used by a any Grantor using Proceeds of to acquire other property which is Collateral shall not (solely as between the ABL Agent, the ABL Secured Parties, the Pari Term Loan Debt Agents and the Pari Term Loan Debt Secured Parties) be treated as Collateral, and not Proceeds proceeds of Collateral, Collateral for purposes of determining the relative priorities in such Collateralthe Collateral which was so acquired. In addition, unless and until the Discharge of ABL Senior Secured Debt Obligations occurs, subject to Section 4.2, the Senior Secured Notes Agent, on behalf of itself Pari Term Loan Debt Agents and the Senior Pari Term Loan Debt Secured Notes Claimholders, and the Junior Secured Notes Agent, on behalf of itself and the Junior Secured Notes Claimholders, Parties each hereby consents to the application, prior to the receipt by the ABL Agent of an Enforcement Notice issued by the Senior Secured Notes any Pari Term Loan Debt Agent, and thereafter, except as it relates to identifiable proceeds of Senior Notes Priority Collateral, of cash or other Proceeds proceeds of Collateral, deposited under Account Agreements in favor of the ABL Agent to the repayment of ABL Debt Obligations pursuant to the ABL Debt Documents; provided that after the receipt by the ABL Agent of an Enforcement Notice from any Pari Term Loan DocumentsDebt Agent and a Term Loan Proceeds Notice with respect to such proceeds, any identifiable proceeds of Term Loan First Lien Collateral (whether or not deposited under Account Agreements with the ABL Agent) shall be treated as Term Loan First Lien Collateral. Notwithstanding anything to the contrary contained herein or in the definition of ABL First Lien Collateral or Term Loan First Lien Collateral, in the event that proceeds of Collateral are received from (or are otherwise attributable to the value of) a sale or other disposition of Collateral that involves a combination of ABL First Lien Collateral and Term Loan First Lien Collateral, the portion of such proceeds that shall be allocated as proceeds of ABL First Lien Collateral for purposes of this Agreement shall be an amount equal to the net book value of such ABL First Lien Collateral (except in the case of Accounts, Supporting Obligations with respect to such Accounts and proceeds thereof, which amount shall be equal to the face amount of such Accounts). In addition, notwithstanding anything to the contrary contained herein or in the definition of ABL First Lien Collateral or Term Loan First Lien Collateral, to the extent proceeds of Collateral are proceeds received from (or are otherwise attributable to the value of) the sale or disposition of all or substantially all of the Capital Stock of any Subsidiary that is a Grantor or all or substantially all of the assets of any such Subsidiary, such proceeds shall constitute (a) first, in an amount equal to (i) the face amount of the Accounts (excluding any rights to payment for any property which specifically constitutes Term Loan First Lien Collateral that has been or is to be sold, leased, licensed, assigned or otherwise disposed of), (ii) the amount of cash held in the deposit accounts of such Grantor immediately prior to the consummation of such sale constituting the proceeds of Accounts constituting ABL First Lien Collateral and (iii) the net book value of the Inventory owned by such Subsidiary at the time of such sale, ABL First Lien Collateral, and (b) second, to the extent in excess of the amounts described in preceding clause (a), Term Loan First Lien Collateral. In the event that amounts are received in respect of Collateral consisting of Capital Stock of or intercompany loans issued to any Grantor in an Insolvency or Liquidation Proceeding, such amounts shall be deemed to be Proceeds received from a sale or disposition of ABL First Lien Collateral and Term Loan First Lien Collateral and shall be allocated as proceeds of ABL First Lien Collateral and Term Loan First Lien Collateral in proportion to the ABL First Lien Collateral and Term Loan First Lien Collateral owned at such time by the issuer of such Capital Stock (with such proportion to be determined in the same manner as is set forth in the immediately preceding sentence as it relates to a sale or disposition of Capital Stock).

Set-Off and Tracing of and Priorities in Proceeds. The Senior Secured Notes Agent, on behalf of the Senior Secured Notes Claimholders, acknowledges and the Junior Secured Notes Agent, on behalf of the Junior Secured Notes Claimholders, acknowledge and agree agrees that, to the extent the Senior Secured Notes Agent, any Senior Secured Notes Claimholder, the Junior Secured Notes Agent or any Junior Senior Secured Notes Claimholder exercises its rights of set-off against any ABL Priority Collateral, the amount of such set-off shall be held and distributed pursuant to Section 4.1. The ABL Agent, for itself and on behalf of the ABL Claimholders, and the Senior Secured Notes Agent, for itself and on behalf of the Senior Secured Notes Claimholders, and the Junior Secured Notes Agent, for itself and on behalf of the Junior Secured Notes Claimholders, each further agrees that, solely as between Agents and Claimholders, agree that prior to an issuance of an Enforcement Notice or the commencement of any Insolvency or Liquidation Proceeding, any Collateral purchased or acquired by a Grantor using Proceeds of Collateral shall be treated as Collateral, and not Proceeds of Collateral, whether or not deposited under Account Agreements, which are used by any Grantor to acquire other property which is Collateral shall not (solely as between the Agents and the Claimholders) be treated as Proceeds of Collateral for purposes of determining the relative priorities in the Collateral which was so acquired; provided, however, that with respect to net Proceeds of asset sales of Senior Notes Priority Collateral, such CollateralProceeds shall continue to constitute Senior Notes Priority Collateral until such Proceeds are applied as provided in the Senior Secured Notes Indenture. In addition, unless and until the Discharge of ABL Obligations occurs, subject to Section 4.2, the Senior Secured Notes Agent, on behalf of itself and the Senior Secured Notes Claimholders, and the Junior Secured Notes Agent, on behalf of itself and the Junior Secured Notes Claimholders, each hereby consents to the application, prior to the receipt by the ABL Agent of an Enforcement Notice issued by the Senior Secured Notes Agent, and thereafter, except as it relates to identifiable proceeds of Senior Notes Priority Collateral, of cash or other Proceeds of Collateral, deposited under Account Agreements in favor of the ABL Agent to the repayment of ABL Obligations pursuant to the ABL Loan Documents.

Set-Off and Tracing of and Priorities in Proceeds. The Senior Secured Each Pari Notes Debt Agent, on behalf of the Senior Pari Notes Debt Secured Notes ClaimholdersParties, acknowledges and the Junior Secured Notes Agent, on behalf of the Junior Secured Notes Claimholders, acknowledge and agree agrees that, to the extent the Senior Secured any Pari Notes Agent, any Senior Secured Notes Claimholder, the Junior Secured Notes Debt Agent or any Junior Pari Notes Debt Secured Notes Claimholder Party exercises its any rights of set-off against any ABL Priority First Lien Collateral, the amount of such set-off shall be held and distributed pursuant to Section 4.12.04(b). The ABL Agent, on behalf of the ABL Secured Parties, acknowledges and agrees that, to the extent the ABL Agent or any ABL Secured Party exercises any rights of set-off against any ABL First Lien Collateral, the amount of such set-off shall be held and distributed pursuant to Section 2.04(b). The ABL Agent, for itself and on behalf of the ABL ClaimholdersSecured Parties, and the Senior Secured Pari Notes AgentDebt Agents, for itself themselves and on behalf of the Senior Pari Notes Debt Secured Notes ClaimholdersParties, and the Junior Secured Notes Agent, for itself and on behalf of the Junior Secured Notes Claimholders, each further agrees that, solely as between Agents and Claimholders, agree that prior to an issuance of an any Enforcement Notice with respect to the Senior Secured Obligations Collateral or the commencement of any Insolvency or Liquidation Proceeding, any Collateral purchased proceeds of Collateral, whether or acquired not deposited under Account Agreements, which are used by a any Grantor using Proceeds of to acquire other property which is Collateral shall not (solely as between the ABL Agent, the ABL Secured Parties, the Pari Notes Debt Agents and the Pari Notes Debt Secured Parties) be treated as Collateral, and not Proceeds proceeds of Collateral, Collateral for purposes of determining the relative priorities in such Collateralthe Collateral which was so acquired. In addition, unless and until the Discharge of ABL Senior Secured Debt Obligations occurs, subject to Section 4.2, the Senior Secured Pari Notes Agent, on behalf of itself Debt Agents and the Senior Pari Notes Debt Secured Notes Claimholders, and the Junior Secured Notes Agent, on behalf of itself and the Junior Secured Notes Claimholders, Parties each hereby consents to the application, prior to the receipt by the ABL Agent of an Enforcement Notice issued by the Senior Secured any Pari Notes Debt Agent, and thereafter, except as it relates to identifiable proceeds of Senior Notes Priority Collateral, of cash or other Proceeds proceeds of Collateral, deposited under Account Agreements in favor of the ABL Agent to the repayment of ABL Debt Obligations pursuant to the ABL Loan Debt Documents; provided that after the receipt by the ABL Agent of an Enforcement Notice from any Pari Notes Debt Agent, any identifiable proceeds of Notes First Lien Collateral (whether or not deposited under Account Agreements with the ABL Agent) shall be treated as Notes First Lien Collateral.