Separate Realization. With respect to foreclosure against or other realization upon the Collateral ("Realization"), unless the Secured Credit Parties agree upon a single or coordinated Realization on all of the Collateral for the benefit of all of the Secured Credit Parties (and no Secured Credit Party shall be required to so agree), then notwithstanding the foregoing provisions of Section 4.7.1 limiting enforcement of the Related Collateral Documents to the Intercreditor Agent (acting on the direction of the Controlling Party), any Secured Credit Party holding subordinate liens on any personal property Collateral encumbered under the Project Security Agreements or the Account Agreements, so that such Secured Credit Party is not a Controlling Party with respect to such personal property Collateral, shall have the right to effect a unified sale of such personal property Collateral together with its real property Collateral, i.e., simultaneous Realization under the applicable Deeds of Trust and the applicable Project Security Agreements and the Account Agreements (a "Separate Unified Realization") in accordance with the following terms and conditions of this Section 4.7.2: 4.7.2.1 Realization by such Secured Credit Party must be permitted in accordance with the terms and conditions of Section 4.6.1 or Section 4.6.2 above, as applicable. 4.7.2.2 The date of such Separate Unified Realization shall be not earlier than thirty (30) days following the date such Secured Credit Party has given the other Secured Parties notice of its election to pursue Separate Unified Realization. 4.7.2.3 With respect to the personal property Collateral to be sold at such Separate Unified Realization, the electing Secured Credit Party or an agent on its behalf (other than the Intercreditor Agent) shall have the right to schedule such sale, the right to give any required notices of such sale, the right to conduct such sale in conjunction with the foreclosure or other realization under such Secured Credit Party's Deeds of Trust, and the right to take any other actions necessary for a secured party to so foreclose such security interests in accordance with applicable law, but such Secured Credit Party shall take no other action with respect to such personal property Collateral, including, without limitation, giving any other notices or directions to the debtor, the Intercreditor Agent, the depository or Securities Intermediary with respect to any Account, the account party on any assigned account or the contract obligor on any assigned contract; freezing or otherwise taking action against any Account; seeking the appointment of a receiver; bringing any action against the Company; or taking any action to Realize on such Collateral other than at the Separate Unified Realization in accordance with this Section 4.7.2. 4.7.2.4 The rights of an electing Secured Credit Party under Section 4.7.2.3 may be exercised by such Secured Credit Party or by an agent or attorney on behalf of such Secured Credit Party; such rights shall not be exercised by the Intercreditor Agent.
Appears in 1 contract
Sources: Intercreditor Agreement (Grand Canal Shops Mall Construction LLC)
Separate Realization. With respect to foreclosure against or other realization upon the Collateral ("RealizationREALIZATION"), unless the Secured Credit Parties agree upon a single or coordinated Realization on all of the Collateral for the benefit of all of the Secured Credit Parties Lenders (and no Secured Credit Party shall be required to so agree), then notwithstanding the foregoing provisions of Section 4.7.1 SECTION 4.
4.1 limiting enforcement of the Related Collateral Documents Agreements to the Intercreditor Agent (acting on the direction of the Controlling Party), any Secured Credit Party holding subordinate liens Liens on any personal property Collateral encumbered under the Project Security Agreements or the Account Agreements, so that such Secured Credit Party is not a Controlling Party with respect to such personal property Collateral, shall have the right to effect a unified sale of such personal property Collateral together with its real property Collateral, i.e.I.E., simultaneous Realization under the applicable Deeds of Trust and the applicable Project Security Agreements and the Account Agreements (a "Separate Unified RealizationSEPARATE UNIFIED REALIZATION") in accordance with the following terms and conditions of this Section 4.7.2SECTION 4.4.2:
4.7.2.1 4.4.2.1 Realization by such Secured Credit Party must be permitted in accordance with the terms and conditions of Section 4.6.1 or Section 4.6.2 SECTION 4.3 above, as applicable.
4.7.2.2 4.4.2.2 The date of such Separate Unified Realization shall be not earlier than thirty (30) days following the date such Secured Credit Party has given the other Secured Parties notice of its election to pursue Separate Unified Realization.
4.7.2.3 4.4.2.3 With respect to the personal property Collateral to be sold at such Separate Unified Realization, the electing Secured Credit Party or an agent on its behalf (other than the Intercreditor Agent) shall have the right to schedule such sale, the right to give any required notices of such sale, the right to conduct such sale in conjunction with the foreclosure or other realization under such Secured Credit Party's Deeds Deed of Trust, and the right to take any other actions necessary for a secured party to so foreclose such security interests in accordance with applicable law, but such Secured Credit Party shall take no other action with respect to such personal property Collateral, including, without limitation, giving any other notices or directions to the debtor, the Intercreditor Agent, the depository or Securities Intermediary with respect to any Account, the account party on any assigned account or the contract obligor on any assigned contract; freezing or otherwise taking action against any Accountaccount of the Company; seeking the appointment of a receiver; bringing any action against the Company; or taking any action to Realize on such Collateral other than at the Separate Unified Realization in accordance with this Section 4.7.2SECTION 4.4.2.
4.7.2.4 4.4.2.4 The rights of an electing Secured Credit Party under Section 4.7.2.3 SECTION 4.4.2.3 may be exercised by such Secured Credit Party or by an agent or attorney on behalf of such Secured Credit Party; such rights shall not be exercised by the Intercreditor Agent.
Appears in 1 contract
Separate Realization. With respect to foreclosure against or other realization upon the Collateral ("Realization"), unless the Secured Credit Parties agree upon a single or coordinated Realization on all of the Collateral for the benefit of all of the Secured Credit Parties Lenders having a security interest in such Collateral (and no Secured Credit Party shall be required to so agree), then notwithstanding the foregoing provisions of Section 4.7.1 4.
4.1 limiting enforcement of the Related Collateral Documents Agreements to the Intercreditor Agent (acting on the direction of the Controlling Party), any Secured Credit Party holding subordinate liens Liens on any personal property Collateral encumbered under the Project Security Agreements or the Account Agreements, so that such Secured Credit Party is not a Controlling Party with respect to such personal property Collateral, shall have the right to effect a unified sale of such personal property Collateral together with its real property Collateral, i.e., simultaneous Realization under the applicable Deeds of Trust and the applicable Project Security Agreements and the Account Agreements (a "Separate Unified Realization") in accordance with the following terms and conditions of this Section 4.7.24.4.2:
4.7.2.1 4.4.2.1 Realization by such Secured Credit Party must be permitted in accordance with the terms and conditions of Section 4.6.1 or Section 4.6.2 4.3 above, as applicable.
4.7.2.2 4.4.2.2 The date of such Separate Unified Realization shall be not earlier than thirty (30) days following the date such Secured Credit Party has given the other Secured Parties notice of its election to pursue Separate Unified Realization.
4.7.2.3 4.4.2.3 With respect to the personal property Collateral to be sold at such Separate Unified Realization, the electing Secured Credit Party or an agent on its behalf (other than the Intercreditor Agent) shall have the right to schedule such sale, the right to give any required notices of such sale, the right to conduct such sale in conjunction with the foreclosure or other realization under such Secured Credit Party's Deeds of Trust, and the right to take any other actions necessary for a secured party to so foreclose such security interests in accordance with applicable law, but such Secured Credit Party shall take no other action with respect to such personal property Collateral, including, without limitation, giving any other notices or directions to the debtor, the Intercreditor Agent, the depository or Securities Intermediary with respect to any Account, the account party on any assigned account or the contract obligor on any assigned contract; freezing or otherwise taking action against any Accountaccount of the Company; seeking the appointment of a receiver; bringing any action against the Company; or taking any action to Realize on such Collateral other than at the Separate Unified Realization in accordance with this Section 4.7.24.4.2.
4.7.2.4 4.4.2.4 The rights of an electing Secured Credit Party under Section 4.7.2.3 4.4.2.3 may be exercised by such Secured Credit Party or by an agent or attorney on behalf of such Secured Credit Party; such rights shall not be exercised by the Intercreditor Agent.
4.4.2.5 The Intercreditor Agent and the other Secured Credit Parties shall permit an electing Secured Credit Party to conduct such Separate Unified Realization; provided, however, that the Intercreditor Agent shall not be required to conduct or participate in such Separate Unified Realization. Subject to the obligation to permit the electing Secured Credit Party to conduct such Separate Unified Realization, the Controlling Party with respect to such Collateral shall continue to have the sole right to direct the Intercreditor Agent in accordance with this Agreement, and in connection therewith, may, without limitation, cause the Intercreditor Agent to schedule and conduct Realization on such Collateral at any time and cause the Intercreditor Agent to take such other actions as may be permitted under the terms of any of the Related Collateral Agreements.
4.4.2.6 Except for the extinguishment of junior Liens and security interests by operation of law upon any Separate Unified Realization, no Separate Unified Realization shall operate to terminate any Security Agreement creating the security interest then realized upon, or to terminate any other Related Collateral Agreement, and all security interests, Liens and other interests of the Intercreditor Agent and the other Secured Lenders under each Security Agreement shall (except to the extent extinguished by operation of law, as aforesaid) survive such Separate Unified Realization and shall remain enforceable by the Intercreditor Agent and the other Secured Lenders. The purchaser at such Separate Unified Realization, whether the Secured Credit Party conducting same or any other Person, shall acquire title to any Collateral sold at such sale subject to the continuing encumbrances, Liens and security interests in favor of the other Secured Lenders (except to the extent extinguished by operation of law, as aforesaid).
4.4.2.7 The Secured Credit Party conducting any Separate Unified Realization shall, subject to Section 4.3.5(b) above, be entitled to receive the proceeds, if any, from the sale of the Collateral thereunder in accordance with applicable law (including, without limitation, payment of excess proceeds to secured parties with junior Liens).
Appears in 1 contract