Enforcement Actions. Each of the Lenders and the Receivables Agent agrees to use reasonable efforts to give an Enforcement Notice to the other prior to commencement of Enforcement (but failure to do so shall not prevent such Person or the Collateral Agent from commencing Enforcement or affect its rights hereunder nor create any cause of action or liability against such Person). Subject to the foregoing, each of the parties hereto agrees that during an Enforcement Period: (a) Subject to any applicable restrictions in the Related Documents, the Receivables Agent may at its option and without the prior written consent of the Companies or the Collateral Agent take any action to (i) accelerate payment of the Receivables Claim or any other obligations and liabilities under any of the Related Documents and (ii) liquidate the Receivables Assets or to foreclose or realize upon or enforce any of its rights with respect to the Receivables Assets. (b) Subject to any applicable restrictions in and to the terms of the Loan Documents, and in compliance with the terms of the Collateral Agency and Intercreditor Agreement, the Collateral Agent or any of the Lenders, may, at its option, and without the prior written consent of any other party hereto, take any action to accelerate payment of or require cash collateral for the Lender Claim or any other obligation or liability arising under any of the Loan Documents and to foreclose or realize upon or enforce any of its rights with respect to the Lender Collateral or other collateral security, including (except as otherwise provided in Section 2.2(e) hereof) with respect to any Receivables Assets constituting Returned Goods that have been commingled with the Lender Collateral, or take any other actions as they deem appropriate; PROVIDED, HOWEVER, that the Collateral Agent shall not otherwise take any action to foreclose or realize upon or to enforce any rights it may have with respect to any of the Receivables Assets or the SPE Membership Collateral without the Receivables Agent's prior written consent unless the Receivables Claim or any other obligation or liability arising under any of the Related Documents shall have been first paid and satisfied in full and the Related Documents have terminated; PROVIDED, FURTHER, that the Receivables Agent shall not otherwise take any action to foreclose or realize any rights it may have with respect to any of the Lender Collateral without the prior written consent of the Collateral Agent (who shall be directed in this case by the Requisite Parties (as defined in the Collateral Agency and Intercreditor Agreement) unless the Lender Claim and each other obligation or liability arising under any of the Loan Documents shall have been the first paid and satisfied in full and the Loan Documents have terminated.
Appears in 1 contract
Enforcement Actions. Each of the Lenders and the Receivables Agent agrees to use reasonable efforts to give an Enforcement Notice to the other prior to commencement of Enforcement (but failure to do so shall not prevent such Person or the Collateral Agent from commencing Enforcement or affect its rights hereunder nor create any cause of action or liability against such Person). Subject to the foregoing, each of the parties hereto agrees that during an Enforcement Period:
(a) Subject to any applicable restrictions Upon the occurrence and during the continuance of an “Event of Default” as defined in the Related Revolving Loan Documents, the Receivables Agent may at its option and without the prior written consent of the Companies or the Collateral Agent take any action to (i) accelerate payment of the Receivables Claim or any other obligations and liabilities under any of the Related Documents and (ii) liquidate the Receivables Assets or to foreclose or realize upon or enforce any of its rights with respect to the Receivables Assets.
(b) Subject to any applicable restrictions in and to the terms of the Loan Documents, and in compliance with the terms of the Collateral Agency and Intercreditor Agreement, the Collateral Agent or any of the Lenders, Revolving Lender may, at its option, take and without the prior written consent of continue any other party hereto, take any action to accelerate payment of or require cash collateral for the Lender Claim or any other obligation or liability arising under any of the Loan Documents and to foreclose or realize upon or enforce any of its rights Enforcement Action with respect to the Lender Collateral or other collateral securityRevolving Obligations (including, including (except as otherwise provided in Section 2.2(e) hereof) with respect to any Receivables Assets constituting Returned Goods that have been commingled with the Lender Collateralwithout limitation, or take any other actions as they deem appropriate; PROVIDED, HOWEVER, that the Collateral Agent shall not otherwise take any action to foreclose or realize upon or to enforce exercising any rights it may have under the Assignment of Claims Act) and, subject to the terms of this Agreement, the Revolving Credit Priority Collateral (but, except as provided in Sections 2.3(f), (g) and (n), at no time prior to the Payment In Full of the Term Loan Obligations may it take any such actions with respect to any of the Receivables Assets or the SPE Membership Collateral without the Receivables Agent's Term Loan Priority Collateral). The Revolving Lender shall use commercially reasonable efforts to provide at least five (5) Business Days’ prior written consent unless notice to the Receivables Claim Term Loan Agent in the event that the Revolving Lender takes \\LA - 765212/000003 - 2075087 v5 any Enforcement Action (other than in Exigent Circumstances or upon any other obligation or liability arising under any of the Related Documents Loan Party becoming subject to an Insolvency Proceeding), but shall have no liability for failing to do so. Until the Revolving Obligations have been first paid and satisfied in full and Paid In Full, the Related Documents have terminated; PROVIDED, FURTHER, that the Receivables Term Loan Agent shall not (i) take, or support any other Person in taking, any Enforcement Action with respect to the Revolving Credit Priority Collateral except as provided in Sections 2.3(f) and (g), (ii) object to any forbearance from taking any Enforcement Action by the Revolving Lender and the Revolving Claimholders, (iii) exercise any rights under the Assignment of Claims Act with respect to any Collateral, or (iv) other than to enforce any rights of the Term Loan Agent expressly set forth herein, contest, protest or object, or support any other Person in contesting, protesting or objecting to, any Enforcement Action (or forbearance thereof) brought by or otherwise taken by the Revolving Lender with respect to the Revolving Obligations or the Revolving Credit Priority Collateral.
(b) The Revolving Lender’s rights with respect to the Revolving Credit Priority Collateral shall include the right to release any or all of such Revolving Credit Priority Collateral from its Liens thereon and the Liens of the Term Loan Agent thereon (without any further consent or action on the part of the Term Loan Agent) in connection with any sale, lease, exchange, transfer or other disposition of such Revolving Credit Priority Collateral:
(i) by the Revolving Lender or by a Loan Party at the request of the Revolving Lender, in each case during the continuance of an Enforcement Action;
(ii) permitted under the terms of both the Revolving Loan Documents and the Term Loan Documents as in effect on the date hereof; or
(iii) by any Loan Party if the Revolving Lender releases any of its Liens on any part of such Collateral during the continuance of an Event of Default under and as defined in the Revolving Credit Agreement; provided, in each case, that all Net Cash Proceeds therefrom (net of any amounts allocated or carved out for professional fees or expenses, which amounts shall not be deemed to be received by the Revolving Lender or applied to the Revolving Obligations) are applied in accordance with Section 2.4. Without limiting the foregoing, if the Revolving Lender shall determine, in connection with any such sale or other disposition of any Revolving Credit Priority Collateral that the release of its Lien and the Lien of the Term Loan Agent on any such Revolving Credit Priority Collateral in connection with any such sale or other disposition is necessary or advisable, the Term Loan Agent shall execute and deliver such release documents and instruments and shall take such further actions as the Revolving Lender shall reasonably request to effect such release. Solely in the event and to the extent that the Term Loan Agent fails to do so in accordance with the terms of this Agreement within five (5) Business Days after the Revolving Lender’s request therefor, the Term Loan Agent hereby appoints the Revolving Lender and any officer or duly authorized Person of the Revolving Lender, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Term Loan Agent, and in the name of the Term Loan Agent or in the Revolving Lender’s own name, from time to time, as determined in the Revolving Lender’s reasonable discretion, for the purposes of carrying out the terms of this Section 2.3(b), to take any and all appropriate action and to foreclose execute and deliver any and all documents and instruments as may be necessary or realize desirable to accomplish the purposes of this Section 2.3(b), including any rights financing or termination statements, releases, endorsements, assignments or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable). The Term Loan Agent hereby ratifies all that said attorneys shall do or cause to be done under this Section 2.3(b). Upon the Payment In Full of the Revolving Priority Obligations, any remaining Net Cash Proceeds of the Revolving \\LA - 765212/000003 - 2075087 v5 Credit Priority Collateral shall be for the benefit of and be promptly paid over to the Term Loan Agent for application in accordance with the terms of the Term Loan Documents and, after Payment In Full of the Term Loan Priority Obligations, any remaining Net Cash Proceeds of the Revolving Credit Priority Collateral shall revert to the Revolving Lender to the extent of any Revolving Excess Obligations, then to the Term Loan Agent to the extent of any Term Loan Excess Obligations and then to the applicable Loan Party or as directed by an order issued by a court of competent jurisdiction.
(c) Upon the occurrence and during the continuance of an “Event of Default” as defined in the Term Loan Documents, the Term Loan Agent may, at its option, take and continue any Enforcement Action with respect to the Term Loan Obligations and, subject to the terms of this Agreement, the Term Loan Priority Collateral (but, except as provided in Section 2.3(f) and (g), at no time prior to the Payment In Full of the Revolving Obligations may it may have take any such actions with respect to any of the Lender Revolving Credit Priority Collateral without or exercise any rights under the Assignment of Claims Act with respect to any Collateral). The Term Loan Agent shall use commercially reasonable efforts to provide at least five (5) Business Days’ prior written consent notice to the Revolving Lender in the event that the Term Loan Agent takes any Enforcement Action (other than in Exigent Circumstances or upon any Loan Party becoming subject to an Insolvency Proceeding), but shall have no liability for failing to do so. Until the Term Loan Obligations have been Paid In Full, the Revolving Lender shall not (i) take, or support any other Person in taking, any Enforcement Action with respect to the Term Loan Priority Collateral except as provided in Sections 2.3(f) and (g), (ii) object to any forbearance from taking any Enforcement Action by the Term Loan Agent and the Term Loan Lenders, or (iii) other than to enforce any rights of the Collateral Agent Revolving Lender expressly set forth herein, contest, protest or object, or support any other Person in contesting, protesting or objecting to, any Enforcement Action (who shall be directed in this case or forbearance thereof) brought by or otherwise taken by the Requisite Parties Term Loan Agent with respect to the Term Loan Obligations or the Term Loan Priority Collateral.
(d) The Term Loan Agent’s rights with respect to the Term Loan Priority Collateral shall include the right to release any or all of such Term Loan Priority Collateral from its Liens thereon and any Lien of the Revolving Lender thereon (without any further consent or action on the part of the Revolving Lender) in connection with any sale, lease, exchange, transfer or other disposition of such Term Loan Priority Collateral:
(i) by the Term Loan Agent or by a Loan Party at the request of the Term Loan Agent, in each case during the continuance of an Enforcement Action;
(ii) permitted under the terms of both the Revolving Loan Documents and the Term Loan Documents as in effect on the date hereof; or
(iii) by any Loan Party if the Term Loan Agent releases any of its Liens on any part of such Collateral during the continuance of an Event of Default under and as defined in the Term LoanReimbursement Agreement; provided, in each case, that all Net Cash Proceeds therefrom (net of any amounts allocated or carved out for professional fees or expenses, which amounts shall not be deemed to be received by the Term Loan Agent or applied to the Term Loan Obligations) are applied in accordance with Section 2.4; provided further, that the provisions set forth in Section 2.3(h) through (j) and Section 2.3(n) and (o) shall apply as set forth therein. Without limiting the foregoing, if the Term Loan Agent shall determine, in connection with any such sale or other disposition of any Term Loan Priority Collateral Agency that the release of its Lien and Intercreditor Agreementthe Lien of the Revolving Lender on any \\LA - 765212/000003 - 2075087 v5 such Term Loan Priority Collateral in connection with any such sale or other disposition is necessary or advisable, the Revolving Lender shall execute and deliver such release documents and instruments and shall take such further actions as the Term Loan Agent shall reasonably request to effect such release. Solely in the event and to the extent that the Revolving Lender fails to do so in accordance with the terms of this Agreement within five (5) unless Business Days after the Term Loan Agent’s request therefor, the Revolving Lender Claim hereby appoints the Term Loan Agent and any officer or duly authorized Person of the Term Loan Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Revolving Lender, and in the name of the Revolving Lender or in the Term Loan Agent’s own name, from time to time, as determined in the Term Loan Agent’s reasonable discretion, for the purposes of carrying out the terms of this Section 2.3(d), to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be necessary or desirable to accomplish the purposes of this Section 2.3(d), including any financing or termination statements, releases, endorsements, assignments or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable). The Revolving Lender hereby ratifies all that said attorneys shall do or cause to be done under this Section 2.3(d). Upon the Payment In Full of the Term Loan Priority Obligations, any remaining Net Cash Proceeds of the Term Loan Priority Collateral shall be for the benefit of and be promptly paid over to the Revolving Lender for application in accordance with the terms of the Revolving Loan Documents and, after Payment In Full of the Revolving Priority Obligations, any remaining Net Cash Proceeds of the Term Loan Priority Collateral shall revert to the Term Loan Agent to the extent of any Term Loan Excess Obligations, then to the Revolving Lender to the extent of any Revolving Excess Obligations and then to the applicable Loan Party or as directed by an order issued by a court of competent jurisdiction.
(e) In exercising rights and remedies with respect to the applicable Priority Collateral, each Priority Secured Party and its Priority Claimholders may enforce the provisions of their respective Loan Documents and exercise remedies thereunder, all in such order and in such manner as they may determine (but subject to the terms hereof). Such exercise and enforcement shall include the rights of an agent appointed by such Priority Secured Party and Priority Claimholders to sell or otherwise dispose of such Priority Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under the Bankruptcy Code or the laws of any applicable jurisdiction (and with respect solely to the Revolving Lender prior to the Payment in Full of the Revolving Obligations, including, without limitation, any and all rights to receive payment under the Assignment of Claims Act).
(f) Except as specifically provided in Section 2.3(g), notwithstanding any rights or remedies available to the Term Loan Agent or any other obligation or liability arising Term Loan Claimholder under any of the Term Loan Documents, the Revolving Lender or any other Revolving Claimholder under any of the Revolving Loan Documents, or any Secured Party or other Claimholder under applicable law or otherwise, (x) prior to the Payment In Full of the Revolving Obligations, neither the Term Loan Agent nor any of the other Term Loan Claimholders shall, directly or indirectly, take any Enforcement Action, or otherwise seek to foreclose, enforce or realize upon (judicially or non- judicially) any Liens, on any Revolving Credit Priority Collateral or assert any interests therein (including by setoff or notification of account debtors owing Accounts included in the Revolving Credit Priority Collateral) and (y) prior to the Payment In Full of the Term Loan Obligations, neither the Revolving Lender nor any of the other Revolving Claimholders shall, directly or indirectly, take any Enforcement Action, or otherwise seek to foreclose, enforce or realize upon (judicially or non-judicially) any Liens, on any Term Loan Priority Collateral or assert any \\LA - 765212/000003 - 2075087 v5 interests therein (including by setoff or notification of account debtors owing Accounts included in the Term Loan Priority Collateral); provided that (A) in the case of the Term Loan Agent and the other Term Loan Claimholders, upon the occurrence of an “Event of Default” as defined in the Term Loan Documents and for so long as such Event of Default is continuing, subject at all times to the other provisions of this Section 2, commencing 150 days after the receipt by the Revolving Lender of the written declaration of the Term Loan Agent of such Event of Default and written demand by the Term Loan Disbursing Agent to FCNAParent for the accelerated payment of all Term Loan Obligations then outstanding (provided that such 150-day period shall have been be tolled for any period during which both the first paid and satisfied in full Revolving Lender and the Term Loan Agent are stayed by an order issued in any Insolvency Proceeding or by any other court of competent jurisdiction from exercising their respective default and enforcement rights and remedies against all or a material portion of the Collateral), the Term Loan Agent and the Term Loan Claimholders may take action to enforce their Liens on the Revolving Credit Priority Collateral so long as the Revolving Lender or the Revolving Claimholders are not then diligently pursuing in good faith the exercise of their Enforcement Actions against, or diligently attempting in good faith to vacate any stay of enforcement of their senior Liens on, all or a material portion of the Revolving Credit Priority Collateral (including commencement of any action to foreclose their senior Liens on all or any material portion of the Revolving Credit Priority Collateral, any action to take possession of all or any material portion of the Revolving Credit Priority Collateral, the commencement of any legal proceedings or actions against or with respect to all or any material portion of the Revolving Credit Priority Collateral or the commencement of any marketing or sale process for the sale of any Revolving Credit Priority Collateral (including the engagement of investment bankers or brokers for such purpose)) and (B) in the case of the Revolving Lender and the Revolving Claimholders, upon the occurrence of an “Event of Default” as defined in the Revolving Loan Documents have terminated.and for so long as such Event of Default is continuing, subject at all times to the other provisions of this Section 2, commencing 150 days after the receipt by the Term Loan Agent of the written declaration of the Revolving Lender of such Event of Default and written demand by the Revolving Lender to the Borrowers for the accelerated payment of all Revolving Obligations then outstanding (provided that such 150-day period shall be tolled for any period during which both the Revolving Lender and the Term Loan Agent are
Appears in 1 contract
Enforcement Actions. Each of the Lenders Bank Agent and the Receivables Agent Indenture Trustee agrees to use reasonable efforts to give an Enforcement Notice to the each other party hereto prior to commencement of Enforcement and further agrees that during the period, if any, between the giving of such Enforcement Notice and the commencement of Enforcement thereunder, each party receiving such notice shall have the right to the extent within its power (but failure not the obligation) to do so shall not prevent such Person cure the Event of Default or Pay Out Event which has occurred under the Bank Loan Documents or the Collateral Agent from commencing Purchaser Documents, respectively, and to which such Enforcement or affect its rights hereunder nor create any cause of action or liability against such Person)Notice relates. Subject to the foregoing, each of the parties hereto agrees agree that during an Enforcement Period:
(a) Subject to any applicable restrictions in in, and the Related terms and conditions of, the Purchaser Documents, the Receivables Agent Indenture Trustee may at its option and without the prior written consent of the Companies or the Collateral Agent take any action to (i) accelerate payment of the Receivables Claim or any other obligations and liabilities under any of the Related Documents and (ii) liquidate the Receivables Assets Purchased Property or to foreclose or realize upon or enforce any of its the rights of the Trust with respect to the Receivables Assets.
(b) Subject to any applicable restrictions in and to the terms of the Loan Documents, and in compliance with the terms of the Collateral Agency and Intercreditor Agreement, the Collateral Agent or any of the Lenders, may, at its option, and Purchased Property without the prior written consent of any Lender Party or any other party hereto; provided, take any action to accelerate payment of or require cash collateral for the Lender Claim or any other obligation or liability arising under any of the Loan Documents and to foreclose or realize upon or enforce any of its rights however, that with respect to Returned Goods, the Lender Collateral or other collateral security, including (except as otherwise provided in Section 2.2(e) hereof) with respect to any Receivables Assets constituting Returned Goods that have been commingled with the Lender Collateral, or take any other actions as they deem appropriate; PROVIDED, HOWEVER, that the Collateral Agent Indenture Trustee shall not otherwise take any action to foreclose or realize upon or to enforce any rights it may have with respect to any of Purchased Property constituting Returned Goods in which the Receivables Assets or the SPE Membership Collateral Indenture Trustee then has an interest junior and subordinate to a Returned Goods Lien without the Receivables Agent's prior written consent of the Bank Agent, unless the Receivables Bank Claim or any other obligation or liability arising under any of the Related Documents shall have been first paid and satisfied in full in cash, and the Related Documents have terminated; PROVIDED, FURTHER, that Indenture Trustee shall apply the Receivables Agent shall not otherwise take any action to foreclose or realize any rights it may have with respect proceeds of such Returned Goods as provided in Section 2.01(b) above.
(b) Subject to any of applicable restrictions in, and terms and conditions of, the Lender Collateral Bank Loan Documents, the Bank Agent may, at its option and without the prior written consent of the Collateral Agent (who shall be directed in this case by other parties hereto, take any action to accelerate payment of the Requisite Parties (as defined in the Collateral Agency and Intercreditor Agreement) unless the Lender Bank Claim and each other obligation to foreclose or liability arising under realize upon or enforce any of its rights with respect to (i) the Loan Documents Exclusive Bank Collateral (including the proceeds of any sale or transfer of Transferred Receivables to the Transferor) and (ii) any Purchased Property constituting Returned Goods; provided, however, that the Bank Agent shall have been the first paid and satisfied apply proceeds of any Purchased Property consisting of Returned Goods as provided in full and the Loan Documents have terminatedSection 2.01(b) above.
Appears in 1 contract
Enforcement Actions. Each of the Lenders Agent and the Receivables Agent agrees to use reasonable efforts to give an Enforcement Notice to the other others prior to commencement of Enforcement (but failure to do so shall not prevent such Person or the Collateral Agent from commencing Enforcement or affect its rights hereunder nor create any cause of action or liability against such Person). Subject to the foregoing, each of the parties hereto agrees that during an Enforcement Period:
(a) Subject to any applicable restrictions in the Related Receivables Documents, the Receivables Agent may at its option and without the prior written consent of the Companies or the Collateral Agent other parties hereto, take any action to (i) accelerate payment of the Receivables Claim or any other obligations and liabilities under any of the Related Receivables Documents and (ii) liquidate the Receivables Assets or to foreclose or realize upon or enforce any of its rights with respect to the Receivables Assets; PROVIDED, however, that, subject to Section 2.3(e), the Receivables Agent shall not take any action to foreclose or realize upon or to enforce any rights it may have with respect to any Receivables Assets constituting Returned Goods which have been commingled with the Lenders Collateral without the prior written consent of the Lenders Agent.
(b) Subject to any applicable restrictions in and to the terms of the Loan Documents, and in compliance with the terms of the Collateral Agency and Intercreditor Agreement, the Collateral Lenders Agent or any of the Lenders, Lenders may, at its option, their option and without the prior written consent of any the other party parties hereto, take any action to accelerate payment of or require cash collateral for the Lender Lenders Claim or any other obligation or liability arising under the Credit Agreement or any of the other Loan Documents and to Documents, foreclose or realize upon or enforce any of its their rights with respect to the Lender Collateral or other collateral securityLenders Collateral, including (including, except as otherwise provided in Section 2.2(e) hereof) SECTION 2.3(e), with respect to any Receivables Assets constituting Returned Goods that have been commingled with the Lender Lenders Collateral, or take any other actions as they deem appropriate; PROVIDED, HOWEVER, that the Collateral Lenders Agent shall not otherwise take any action to foreclose or realize upon or to enforce any rights it may have with respect to any of the Receivables Assets or the SPE Membership Collateral uncommingled Returned Goods without the Receivables Agent's prior written consent unless the Receivables Claim or any other obligation or liability arising under any of the Related Documents shall have been first paid and satisfied in full and the Related Documents have terminated; PROVIDED, FURTHER, that the Receivables Agent shall not otherwise take any action to foreclose or realize any rights it may have with respect to any of the Lender Collateral without the prior written consent of the Collateral Agent (who shall be directed in this case by the Requisite Parties (as defined in the Collateral Agency and Intercreditor Agreement) unless the Lender Claim and each other obligation or liability arising under any of the Loan Documents shall have been the first paid and satisfied in full and the Loan Documents have terminated.
(c) If Returned Goods are commingled with Inventory, the parties agree to cooperate in the disposition of such Returned Goods and Inventory and the application of the proceeds thereof as provided in SECTION 2.3(e).
Appears in 1 contract
Enforcement Actions. Each Bank of the Lenders and the Receivables Agent ▇▇▇▇▇▇▇▇ agrees not to use reasonable efforts to give commence Enforcement until one hundred eighty (180) days after an Enforcement Notice has been given to Agent (“Bank of ▇▇▇▇▇▇▇▇ Standstill Period”). Agent agrees not to commence Enforcement against the other prior Bank of Atchison Senior Collateral until an Enforcement Notice has been given to commencement Bank of Enforcement (but failure to do so shall not prevent such Person or the Collateral Agent from commencing Enforcement or affect its rights hereunder nor create any cause of action or liability against such Person)▇▇▇▇▇▇▇▇. Subject to the foregoing, each Agent and Bank of ▇▇▇▇▇▇▇▇ agree that from and after the parties hereto agrees that during receipt of an Enforcement PeriodNotice, and until such time as Borrower has cured any applicable Default or Event of Default (if permitted to do so by the relevant document), or Bank of ▇▇▇▇▇▇▇▇ or Agent, as applicable, has waived such Default or Event of Default, and any and all conditions to such waiver have been satisfied:
(a) Subject to any applicable restrictions in the Related Documents, the Receivables Agent may at its option and without the prior written consent of the Companies or the Collateral Agent take any action to (i) accelerate payment of the Receivables Claim or any other obligations and liabilities under any of the Related Documents and (ii) liquidate the Receivables Assets or to foreclose or realize upon or enforce any of its rights with respect to the Receivables Assets.
(b) Subject to any applicable restrictions in and to the terms of the Loan Documents, and in compliance with the terms of the Collateral Agency and Intercreditor Agreement, the Collateral Agent or any of the Lenders, Lenders may, at its their option, and without the prior written consent of any other party hereto, take any action to accelerate payment of or require cash collateral for the Lender WF Claim or any other obligation or liability arising under any of the Loan Documents and to foreclose or realize upon or enforce any of its rights with respect to the Lender Collateral or other collateral security, including (except as otherwise provided in Section 2.2(e) hereof) with respect to any Receivables Assets constituting Returned Goods that have been commingled with the Lender WF Senior Collateral, without the prior written notice to or take consent of Bank of Atchison, and with Bank of ▇▇▇▇▇▇▇▇ hereby waiving any other actions as they deem appropriaterights (to the extent it has such rights) to a “commercially reasonable sale” under the Uniform Commercial Code; PROVIDED, HOWEVERand further provided, that the Collateral Agent Bank of ▇▇▇▇▇▇▇▇ shall not otherwise take any action to foreclose or realize upon or to enforce any of their rights it may have with respect to any of the Receivables Assets Collateral in which they have a lien or security interest junior to Agent or without Agent’s prior written consent.
(b) Bank of ▇▇▇▇▇▇▇▇ may, following the SPE Membership Collateral Bank of ▇▇▇▇▇▇▇▇ Standstill Period, at its option, take any action to accelerate payment of the Bank of ▇▇▇▇▇▇▇▇ Claim and to foreclose or realize upon or enforce any of its rights with respect to the Bank of Atchison Senior Collateral, without the Receivables Agent's prior written consent unless of Agent, and with Agent hereby waiving any rights (to the Receivables Claim or any other obligation or liability arising extent it has such rights) to a “commercially reasonable sale” under any of the Related Documents shall have been first paid Uniform Commercial Code; and satisfied in full and the Related Documents have terminated; PROVIDED, FURTHERfurther provided, that the Receivables Agent shall not otherwise take any action to foreclose or realize upon or to enforce any of its rights it may have with respect to any of the Lender Collateral in which it has a lien or security interest junior to Bank of ▇▇▇▇▇▇▇▇ without the Bank of Atchison’s prior written consent consent.
(c) If Agent and Bank of ▇▇▇▇▇▇▇▇ elect to proceed with Enforcement under the WF Agreements and the Bank of ▇▇▇▇▇▇▇▇ Agreements, respectively, in each case, in accordance with the terms of this Agreement, then each shall proceed with the Enforcement of any security interests in or liens on any Collateral in which it has a senior lien or security interest, but, except as otherwise provided in Section 2.4 below, not against that portion in which it has only a junior and inferior lien and security interest.
(d) Bank of Atchison agrees to execute (as applicable) and deliver to Agent, promptly upon Agent’s request, appropriate UCC termination statements or partial releases, or satisfactions or discharges of liens, with respect to any of the WF Senior Collateral being sold or otherwise disposed of (i) in the ordinary course of Borrower’s continuing business or (ii) in connection with the liquidation of Borrower’s assets upon or after the declaration of a Default or an Event of Default by Agent or the Lenders pursuant to the WF Agreements and, in each case, otherwise in accordance with this Agreement. The proceeds of any WF Senior Collateral so sold or disposed of shall be applied, after the deduction of any and all costs relating to such sale or disposition (including attorneys’ fees, advertising costs and auctioneer’s fees) to the outstanding WF Claim as Agent may, in its discretion, determine and, only if the WF Claim is indefeasibly paid in full, then to all or any part of the Bank of ▇▇▇▇▇▇▇▇ Claim.
(e) Agent agrees to execute and deliver to Bank of Atchison, promptly upon Bank of Atchison’s request, appropriate UCC termination statements or partial releases, or satisfactions or discharges of liens, with respect to any of the Bank of ▇▇▇▇▇▇▇▇ Senior Collateral being sold or otherwise disposed of (i) in the ordinary course of Borrower’s continuing business or (ii) in connection with the liquidation of Borrower’s assets upon or after the declaration of a Default or an Event of Default by Bank of Atchison pursuant to the Bank of ▇▇▇▇▇▇▇▇ Agreements and, in each case, otherwise in accordance with this Agreement. The proceeds of any Bank of ▇▇▇▇▇▇▇▇ Senior Collateral so sold or disposed of shall be applied, after the deduction of any and all costs relating to such sale or disposition (including attorneys’ fees, advertising costs and auctioneer’s fees) to the outstanding Bank of ▇▇▇▇▇▇▇▇ Claim as Bank of Atchison may, in its discretion, determine and, only the Bank of ▇▇▇▇▇▇▇▇ Claim is indefeasibly paid in full, then to all or any part of the WF Claim.
(f) The parties hereto shall execute and deliver such additional documents and take such additional action as may be reasonably necessary to effectuate the provisions and purposes of this Agreement. If requested, the parties shall authorize filings to be recorded in accordance with Uniform Commercial Code provisions in the appropriate locations reflecting the provisions of this Agreement.
(g) If Agent or Bank of Atchison has any security interest in or lien on any of the Collateral as security for payment of any indebtedness of Borrower or of any other party, other than indebtedness incurred pursuant to the WF Agreements or the Bank of ▇▇▇▇▇▇▇▇ Agreements, then Agent (who shall be directed in this or Bank of Atchison, as the case by may be, may not apply the Requisite Parties (as defined in the Collateral Agency and Intercreditor Agreement) unless the Lender Claim and each other obligation or liability arising under proceeds of any of the Loan Documents shall have been Collateral to satisfy such other indebtedness until the first WF Claim and the Bank of Atchison Claim are paid and satisfied in full and the Loan Documents have terminatedor otherwise satisfied.
Appears in 1 contract
Enforcement Actions. Each of the Lenders and the Receivables Agent agrees to use reasonable efforts to give an Enforcement Notice to the other prior to commencement of Enforcement (but failure to do so shall not prevent such Person or the Collateral Agent from commencing Enforcement or affect its rights hereunder nor create any cause of action or liability against such Person). Subject to the foregoing, each of the parties hereto agrees that during an Enforcement Period:
(a) Subject to the terms of Section 2.5 below, so long as any applicable restrictions in the Related Documents, the Receivables Agent may at its option and without the prior written consent portion of the Companies or the Collateral Agent Fleet Claim remains outstanding, Purchasers may not take any action to (i) accelerate payment of the Receivables Purchasers Claim or any other obligations and liabilities under any of the Related Documents and (ii) liquidate the Receivables Assets or and/or to foreclose or realize upon or enforce any of its rights with respect to the Receivables Assets.Collateral, if such acceleration, foreclosure and realization and/or enforcement occurs within one hundred eighty (180) days of either (i) the date of the Purchasers receipt of a notice of an occurrence of an Event of Default from Fleet or (ii) the date of the giving by the Purchasers to the Borrower of a notice of an occurrence of an Event of Default (said 180 day period being hereinafter referred to as the "Standstill Period"), without first giving notice to, and obtaining the prior written consent of Fleet; provided, however, that a) nothing contained herein shall be deemed to prohibit Purchasers from intervening or participating in or commencing any judicial proceeding to the extent necessary to preserve or protect its interests in any such Collateral and/or its rights against the Borrower and/or Corporate Guarantor, b) the Purchasers shall not be required to observe more than one Standstill Period in any twelve month period during the term of this Agreement, and c) no such consent shall be needed and any such Standstill Period will be deemed terminated if Fleet accelerates payment of one or more of the notes evidencing its Claim and takes any action to foreclose or --- realize upon or enforce any of its rights with respect to the Collateral;
(b) Subject to any applicable restrictions in and to the terms of the Loan DocumentsSection 2.5 below, and in compliance with the terms of the Collateral Agency and Intercreditor Agreement, the Collateral Agent or any of the Lenders, Fleet may, at its option, and without the prior written consent of any other party hereto, take any action to accelerate payment of or require cash collateral for the Lender Claim or any other obligation or liability arising under any of the Loan Documents and Fleet Claim, and/or to foreclose or realize upon or enforce any of its rights with respect to the Lender Collateral or other collateral security, including (except as otherwise provided in Section 2.2(e) hereof) with respect to any Receivables Assets constituting Returned Goods that have been commingled with the Lender Collateral, or take upon giving notice to, but without any other actions as they deem appropriate; PROVIDED, HOWEVER, that the Collateral Agent shall not otherwise take any action to foreclose or realize upon or to enforce any rights it may have with respect to any of the Receivables Assets or the SPE Membership Collateral without the Receivables Agent's prior written consent unless the Receivables Claim or any other obligation or liability arising under any of the Related Documents shall have been first paid and satisfied in full and the Related Documents have terminated; PROVIDED, FURTHER, that the Receivables Agent shall not otherwise take any action to foreclose or realize any rights it may have with respect to any of the Lender Collateral without necessity for obtaining the prior written consent of the Collateral Agent (who of, Purchasers; provided, however, that nothing contained herein shall be directed deemed to prohibit Fleet from intervening or participating in this case by or commencing any judicial proceeding to the Requisite Parties (as defined extent necessary to preserve or protect its interests in any such Collateral and/or its rights against the Collateral Agency and Intercreditor Agreement) unless Borrower and/or the Lender Claim and each other obligation or liability arising under any of the Loan Documents shall have been the first paid and satisfied in full and the Loan Documents have terminatedCorporate Guarantor.
Appears in 1 contract
Sources: Intercreditor Subordination Agreement (Decora Industries Inc)
Enforcement Actions. Each of the Lenders Lender Agent and the Receivables Purchaser Agent agrees to use reasonable its best efforts to give an Enforcement Notice to the other prior to commencement of Enforcement and further agrees, that, during the period, if any, between the giving of such Enforcement Notice and the commencement of Enforcement thereunder, the Agent receiving such notice shall have the right (but failure not the obligation) to do so shall not prevent such Person cure the "Event of Default" or "Event of Termination" which has occurred under the Loan Documents or the Collateral Agent from commencing Purchaser Documents, respectively, and to which such Enforcement or affect its rights hereunder nor create any cause of action or liability against such Person)Notice relates. Subject to the foregoing, each of the parties hereto agrees agree that during an Enforcement Period:
(a) Subject to any applicable restrictions in the Related Purchaser Documents, the Receivables Purchaser Agent may, at its option, take any action to liquidate the investment of the Purchasers in the Purchased Property and/or to foreclose or realize upon or enforce any of their rights with respect to the Purchased Property without the prior written consent of any Originator or the Lender Agent; provided, however, that the Purchasers shall not take any action to foreclose or realize upon or to enforce any rights they may have with respect to any Purchased Property constituting Returned Goods which have been commingled with the Lender Collateral, unless the Purchaser Agent, pursuant to the last sentence of Section 2.3(c), has withheld consent to a sale or other disposition of such inventory.
(b) Subject to any applicable restrictions in the Loan Documents, the Lender Agent may, at its option and without the prior written consent of the Companies or the Collateral Agent take any action to (i) accelerate payment of the Receivables Claim or any other obligations and liabilities under any of the Related Documents and (ii) liquidate the Receivables Assets or to foreclose or realize upon or enforce any of its rights with respect to the Receivables Assets.
(b) Subject to any applicable restrictions in and to the terms of the Loan Documents, and in compliance with the terms of the Collateral Agency and Intercreditor Agreement, the Collateral Agent or any of the Lenders, may, at its option, and without the prior written consent of any other party heretoPurchasers, take any action to accelerate payment of or require cash collateral for the Lender Claim or any other obligation or liability arising under any of the Loan Documents and to foreclose or realize upon or enforce any of its rights with respect to (i) the Lender Collateral or other collateral security, including and (ii) except as otherwise provided in Section 2.2(e) hereof) 2.3(c), with respect to any Receivables Assets Purchased Property constituting Returned Goods that which have been commingled with the Lender Collateral; provided, or take any other actions as they deem appropriate; PROVIDED, HOWEVERhowever, that the Collateral Lender Agent shall not otherwise take any action to foreclose or realize upon or to enforce any rights it may have with respect to any of the Receivables Assets or the SPE Membership Collateral Purchased Property without the Receivables Purchaser Agent's prior written consent unless the Receivables Purchaser Claim or any other obligation or liability arising under any of the Related Documents shall have been first paid and satisfied in full and the Related Documents have terminated; PROVIDED, FURTHER, that the Receivables Lender Agent shall not otherwise take apply the proceeds of any action to foreclose or realize any rights it may have with respect to any Purchased Property consisting of the Lender Collateral without the prior written consent of the Collateral Agent (who shall be directed Returned Goods as provided in this case by the Requisite Parties (as defined in the Collateral Agency and Intercreditor AgreementSection 2.3(c) unless the Lender Claim and each other obligation or liability arising under any of the Loan Documents shall have been the first paid and satisfied in full and the Loan Documents have terminatedabove.
Appears in 1 contract
Sources: Intercreditor Agreement (Outsource International Inc)
Enforcement Actions. Each of the Lenders Lender Agent and the Receivables Agent Administrator agrees to use reasonable efforts to give an Enforcement Notice to the other prior to commencement of Enforcement (but failure to do so shall not prevent such Person or the Collateral Agent from commencing Enforcement or affect its rights hereunder nor create any cause of action or liability against such Person). Subject to the foregoing, each of the parties hereto agrees that during an Enforcement Period:
(a) Subject to any applicable restrictions in the Related Receivables Documents, the Receivables Agent Administrator may at its option and without the prior written consent of the Companies or the Collateral Agent other parties hereto, take any action to (i) accelerate payment of the Receivables Claim or any other obligations and liabilities under any of the Related Receivables Documents and (ii) liquidate the Receivables Assets or to foreclose or realize upon or enforce any of its rights with respect to the Receivables Assets.
(b) Subject to any applicable restrictions in and to the terms of the Loan Documents; provided, and in compliance with the terms of the Collateral Agency and Intercreditor Agreement, the Collateral Agent or any of the Lenders, may, at its option, and without the prior written consent of any other party hereto, take any action to accelerate payment of or require cash collateral for the Lender Claim or any other obligation or liability arising under any of the Loan Documents and to foreclose or realize upon or enforce any of its rights with respect to the Lender Collateral or other collateral security, including (except as otherwise provided in Section 2.2(e) hereof) with respect to any Receivables Assets constituting Returned Goods that have been commingled with the Lender Collateral, or take any other actions as they deem appropriate; PROVIDED, HOWEVERhowever, that the Collateral Agent Administrator shall not otherwise take any action to foreclose or realize upon or to enforce any rights it may have with respect to any of the Receivables Assets or constituting Returned Goods that have been commingled with the SPE Membership Lender Collateral without the Receivables Agent's prior written consent of the Lender Agent unless the Receivables Lender Agent has provided a written notice to the Administrator stating that the Loan Documents have been terminated and all monetary obligations under the Loan Documents have been satisfied in full.
(b) Subject to any applicable restrictions in the Loan Documents, the Lender Agent or the Lenders may, at their option and without the prior consent of the other parties hereto, take any action to accelerate payment of the Lender Claim or any other obligation or liability arising under any of the Related Documents shall Loan Documents, foreclose or realize upon or enforce any of their rights with respect to the Lender Collateral, including, except as otherwise provided in Section 2.03(d), with respect to any Receivables Assets constituting Returned Goods that have been first paid commingled with the Lender Collateral, and satisfied in full and the Related Documents have terminatedtake any other actions as they deem appropriate; PROVIDEDprovided, FURTHERhowever, that the Receivables Lender Agent shall not otherwise take any action to foreclose or realize upon or to enforce any rights it that either of them may have with respect to any of the Lender Collateral uncommingled Returned Goods without the Administrator’s prior written consent unless the Administrator has provided a written notice to the Lender Agent stating that the Receivables Documents have been terminated and all monetary obligations under the Receivables Documents have been satisfied in full.
(c) If Returned Goods are commingled with Inventory, the parties agree to cooperate in the disposition of Commingled Property and the application of the Collateral Agent (who shall be directed proceeds thereof as provided in this case by the Requisite Parties (as defined in the Collateral Agency and Intercreditor Agreement) unless the Lender Claim and each other obligation or liability arising under any of the Loan Documents shall have been the first paid and satisfied in full and the Loan Documents have terminatedSection 2.03(d).
Appears in 1 contract
Enforcement Actions. Each Bank of the Lenders and the Receivables Agent ▇▇▇▇▇▇▇▇ agrees not to use reasonable efforts to give commence Enforcement until one hundred eighty (180) days after an Enforcement Notice has been given to WFBC (“Bank of Atchison Standstill Period”). WFBC agrees not to commence Enforcement against the other prior Bank of Atchison Senior Collateral until an Enforcement Notice has been given to commencement Bank of Enforcement (but failure to do so shall not prevent such Person or the Collateral Agent from commencing Enforcement or affect its rights hereunder nor create any cause of action or liability against such Person)▇▇▇▇▇▇▇▇. Subject to the foregoing, each WFBC and Bank of ▇▇▇▇▇▇▇▇ agree that from and after the parties hereto agrees that during receipt of an Enforcement PeriodNotice, and until such time as Borrower has cured such Default or an Event of Default (if permitted to do so by the relevant document), or Bank of Atchison or WFBC, as applicable, has waived such Default or Event of Default, and any and all conditions to such waiver have been satisfied:
(a) Subject to any applicable restrictions in the Related Documents, the Receivables Agent may at its option and without the prior written consent of the Companies or the Collateral Agent take any action to (i) accelerate payment of the Receivables Claim or any other obligations and liabilities under any of the Related Documents and (ii) liquidate the Receivables Assets or to foreclose or realize upon or enforce any of its rights with respect to the Receivables Assets.
(b) Subject to any applicable restrictions in and to the terms of the Loan Documents, and in compliance with the terms of the Collateral Agency and Intercreditor Agreement, the Collateral Agent or any of the Lenders, WFBC may, at its option, and without the prior written consent of any other party hereto, take any action to accelerate payment of or require cash collateral for the Lender WFBC Claim or any other obligation or liability arising under any of the Loan Documents and to foreclose or realize upon or enforce any of its rights with respect to the Lender Collateral or other collateral security, including (except as otherwise provided in Section 2.2(e) hereof) with respect to any Receivables Assets constituting Returned Goods that have been commingled with the Lender WFBC Senior Collateral, without the prior written notice to or take consent of Bank of Atchison, and with Bank of Atchison hereby waiving any other actions as they deem appropriaterights (to the extent it has such rights) to a “commercially reasonable sale” under the Uniform Commercial Code; PROVIDED, HOWEVERand further provided, that the Collateral Agent Bank of ▇▇▇▇▇▇▇▇ shall not otherwise take any action to foreclose or realize upon or to enforce any of their rights it may have with respect to any of the Receivables Assets Collateral in which they have a lien or security interest junior to WFBC or without WFBC’s prior written consent.
(b) Bank of ▇▇▇▇▇▇▇▇ may, following the SPE Membership Collateral Bank of ▇▇▇▇▇▇▇▇ Standstill Period, at its option, take any action to accelerate payment of the Bank of ▇▇▇▇▇▇▇▇ Claim and to foreclose or realize upon or enforce any of its rights with respect to the Bank of Atchison Senior Collateral, without the Receivables Agent's prior written consent unless of WFBC, and with WFBC hereby waiving any rights (to the Receivables Claim or any other obligation or liability arising extent it has such rights) to a “commercially reasonable sale” under any of the Related Documents shall have been first paid Uniform Commercial Code; and satisfied in full and the Related Documents have terminated; PROVIDED, FURTHERfurther provided, that the Receivables Agent WFBC shall not otherwise take any action to foreclose or realize upon or to enforce any of its rights it may have with respect to any of the Lender Collateral in which it has a lien or security interest junior to Bank of ▇▇▇▇▇▇▇▇ without the Bank of Atchison’s prior written consent consent.
(c) If WFBC and Bank of ▇▇▇▇▇▇▇▇ elect to proceed with Enforcement under the WFBC Agreements and the Bank of ▇▇▇▇▇▇▇▇ Agreements, respectively, in each case, in accordance with the terms of this Agreement, then each shall proceed with the Enforcement of any security interests in or liens on any Collateral in which it has a senior lien or security interest, but, except as otherwise provided in Section 2.4 below, not against that portion in which it has only a junior and inferior lien and security interest.
(d) Bank of ▇▇▇▇▇▇▇▇ agrees to execute (as applicable) and deliver to WFBC, promptly upon WFBC’s request, appropriate UCC termination statements or partial releases, or satisfactions or discharges of liens, with respect to any of the WFBC Senior Collateral being sold or otherwise disposed of in the ordinary course of Borrower’s continuing business or in connection with the liquidation of Borrower’s assets upon or after the declaration of a Default or an Event of Default by WFBC pursuant to the WFBC Agreements and otherwise in accordance with this Agreement. The proceeds of any WFBC Senior Collateral so sold or disposed of shall be applied, after the deduction of any and all costs relating to such sale or disposition (including attorneys’ fees, advertising costs and auctioneer’s fees) to any and all outstanding WFBC Claims as WFBC may, in its discretion, determine and, only if all WFBC Claims are indefeasibly paid in full, then to all or any part of the Bank of ▇▇▇▇▇▇▇▇ Claim.
(e) WFBC agrees to execute and deliver to Bank of Atchison, promptly upon Bank of Atchison’s request, appropriate UCC termination statements or partial releases, or satisfactions or discharges of liens, with respect to any of the Bank of ▇▇▇▇▇▇▇▇ Senior Collateral being sold or otherwise disposed of in the ordinary course of Borrower’s continuing business or in connection with the liquidation of Borrower’s assets upon or after the declaration of a Default or an Event of Default by Bank of Atchison pursuant to the Bank of ▇▇▇▇▇▇▇▇ Agreements and otherwise in accordance with this Agreement. The proceeds of any Bank of Atchison Senior Collateral so sold or disposed of shall be applied, after the deduction of any and all costs relating to such sale or disposition (including attorneys’ fees, advertising costs and auctioneer’s fees) to any and all outstanding Bank of Atchison Claims as Bank of ▇▇▇▇▇▇▇▇ may, in its discretion, determine and, only if all Bank of ▇▇▇▇▇▇▇▇ Claims are indefeasibly paid in full, then to all or any part of the WFBC Claim.
(f) The parties hereto shall execute and deliver such additional documents and take such additional action as may be reasonably necessary to effectuate the provisions and purposes of this Agreement. If requested, the parties shall authorize filings to be recorded in accordance with Uniform Commercial Code provisions in the appropriate locations reflecting the provisions of this Agreement.
(g) If WFBC or Bank of Atchison has any security interest in or lien on any of the Collateral Agent (who shall be directed in this as security for payment of any indebtedness of Borrower or of any other party, other than indebtedness incurred pursuant to the WFBC Agreements or the Bank of ▇▇▇▇▇▇▇▇ Agreements, then WFBC or Bank of ▇▇▇▇▇▇▇▇, as the case by may be, may not apply the Requisite Parties (as defined in the Collateral Agency and Intercreditor Agreement) unless the Lender Claim and each other obligation or liability arising under proceeds of any of the Loan Documents shall have been Collateral to satisfy such other indebtedness until the first WFBC Claim and the Bank of Atchison Claim are paid and satisfied in full and the Loan Documents have terminatedor otherwise satisfied.
Appears in 1 contract
Enforcement Actions. Each of the Lenders Bank Agent, the Trustee, and the Receivables Program Agent agrees to use reasonable efforts to give an Enforcement Notice to the each other party hereto prior to commencement of Enforcement and further agrees that during the period, if any, between the giving of such Enforcement Notice and the commencement of Enforcement thereunder, each party receiving such notice shall have the right to the extent within its power (but failure not the obligation) to do so shall not prevent such Person cure the Event of Default or Early Amortization Event which has occurred under the Bank Loan Documents or the Collateral Agent from commencing Purchaser Documents, respectively, and to which such Enforcement or affect its rights hereunder nor create any cause of action or liability against such Person)Notice relates. Subject to the foregoing, each of the parties hereto agrees agree that during an Enforcement Period:
(a) Subject to any applicable restrictions in the Related Purchaser Documents, the Receivables Trustee may take any action to liquidate the Purchased Property or to foreclose or realize upon or enforce any of the rights of the Trust with respect to the Purchased Property without the prior written consent of any Lender Party or any other party hereto; provided, however, that with respect to Returned Goods, the Trustee shall not take any action to foreclose or realize upon or to enforce any rights it may have with respect to any Collateral or any Purchased Property constituting Returned Goods in which the Trustee then has an interest junior and subordinate to a Returned Goods Lien without the prior written consent of the Bank Agent, unless the Bank Claim shall have been first paid and satisfied in full in cash, and the Trustee shall apply the proceeds of such Returned Goods as provided in Section 2.01(b) above.
(b) Subject to any applicable restrictions in the Bank Loan Documents, the Bank Agent may may, at its option and without the prior written consent of the Companies or the Collateral Agent take any action to (i) accelerate payment of the Receivables Claim or any other obligations and liabilities under any of the Related Documents and (ii) liquidate the Receivables Assets or to foreclose or realize upon or enforce any of its rights with respect to the Receivables Assets.
(b) Subject to any applicable restrictions in and to the terms of the Loan Documents, and in compliance with the terms of the Collateral Agency and Intercreditor Agreement, the Collateral Agent or any of the Lenders, may, at its option, and without the prior written consent of any other party parties hereto, take any action to accelerate payment of or require cash collateral for the Lender Bank Claim or any other obligation or liability arising under any of the Loan Documents and to foreclose or realize upon or enforce any of its rights with respect to (i) the Lender Collateral or other collateral security, including and (except as otherwise provided in Section 2.2(eii) hereof) with respect to any Receivables Assets Purchased Property constituting Returned Goods that have been commingled with the Lender CollateralGoods; provided, or take any other actions as they deem appropriate; PROVIDED, HOWEVERhowever, that the Collateral Bank Agent shall not otherwise take any action to foreclose or realize upon or to enforce any rights it may have with respect to any of the Receivables Assets or Purchased Property constituting Returned Goods in which a Returned Goods Lien is then junior and subordinate to an interest of the SPE Membership Collateral Trustee in such Returned Goods (to the extent that such interest has been so identified to the Bank Agent with sufficient specificity so as to enable the Trustee to segregate such property) without the Receivables Program Agent's prior written consent (unless the Receivables Purchaser Claim or any other obligation or liability arising under any of the Related Documents Termination Date shall have been first paid and satisfied in full occurred) and the Related Documents have terminated; PROVIDED, FURTHER, that the Receivables Bank Agent shall not otherwise take apply proceeds of any action to foreclose or realize any rights it may have with respect to any Purchased Property consisting of the Lender Collateral without the prior written consent of the Collateral Agent (who shall be directed Returned Goods as provided in this case by the Requisite Parties (as defined in the Collateral Agency and Intercreditor AgreementSection 2.01(b) unless the Lender Claim and each other obligation or liability arising under any of the Loan Documents shall have been the first paid and satisfied in full and the Loan Documents have terminatedabove.
Appears in 1 contract
Sources: Intercreditor Agreement (Elder Beerman Stores Corp)
Enforcement Actions. Each of the Lenders and the Receivables Agent Lender agrees not to use reasonable efforts to give commence Enforcement until an Enforcement Notice has been given to the other prior to commencement of Enforcement (but failure to do so shall not prevent such Person or the Collateral Agent from commencing Enforcement or affect its rights hereunder nor create any cause of action or liability against such Person)Lender. Subject to the foregoingforegoing and Section 2.2 above, each of the parties hereto agrees Bank and Alliance agree that during an Enforcement Period:
(a) Subject to any applicable restrictions in the Related Documents, the Receivables Agent may at its option and without the prior written consent of the Companies or the Collateral Agent take any action to (i) accelerate payment of the Receivables Claim or any other obligations and liabilities under any of the Related Documents and (ii) liquidate the Receivables Assets or to foreclose or realize upon or enforce any of its rights with respect to the Receivables Assets.
(b) Subject to any applicable restrictions in and to the terms of the Loan Documents, and in compliance with the terms of the Collateral Agency and Intercreditor Agreement, the Collateral Agent or any of the Lenders, Alliance may, at its option, and without the prior written consent of any other party hereto, take any action to accelerate payment of or require cash collateral for the Lender Alliance Claim or any other obligation or liability arising under any of the Loan Documents and to foreclose or realize upon or enforce any of its rights with respect to the Lender Collateral or other collateral security, including (except as otherwise provided in Section 2.2(e) hereof) with respect to any Receivables Assets constituting Returned Goods that have been commingled with the Lender Alliance Senior Collateral, or take provided that Alliance shall reasonably cooperate with Bank in any other actions as they deem appropriate; PROVIDED, HOWEVER, that such action in order to maximize any recovery on the Collateral Agent and shall not otherwise provide Bank notice of sale and any offer to purchase the Alliance Senior Collateral;
(b) Bank may, at its option, take any action to accelerate payment of the Bank Claim and to foreclose or realize upon or to enforce any of its rights it may have with respect to the Bank Senior Collateral; provided that Bank shall reasonably cooperate with Alliance in any such action in order to maximize any recovery on the Collateral and shall provide Alliance notice of sale and any offer to purchase the Bank Senior Collateral.
(c) The parties hereto shall execute and deliver such additional documents and take such additional action as may be reasonably necessary to effectuate the provisions and purposes of this Agreement. If requested, the parties shall execute filings to be recorded in accordance with Uniform Commercial Code provisions in the appropriate locations reflecting the provisions of this Agreement.
(d) If Alliance or Bank has any security interest in or lien on any of the Receivables Assets Collateral as security for payment of any indebtedness of Borrower, or of any other party, other than indebtedness incurred pursuant to the Alliance Agreements or the SPE Membership Collateral without Bank Agreements, then Alliance or Bank, as the Receivables Agent's prior written consent unless case may be, may not apply the Receivables Claim or any other obligation or liability arising under proceeds of any of the Related Documents shall have been first Collateral to satisfy such other indebtedness until the Alliance Claim and the Bank Claim are paid and satisfied in full and the Related Documents have terminated; PROVIDED, FURTHER, that the Receivables Agent shall not or otherwise take any action to foreclose or realize any rights it may have with respect to any of the Lender Collateral without the prior written consent of the Collateral Agent (who shall be directed in this case by the Requisite Parties (as defined in the Collateral Agency and Intercreditor Agreement) unless the Lender Claim and each other obligation or liability arising under any of the Loan Documents shall have been the first paid and satisfied in full and the Loan Documents have terminatedsatisfied.
Appears in 1 contract