Separation of Collateral. (a) The Receivables Agent hereby agrees promptly to return to the Company funds or other property other than Specified Assets (or proceeds thereof, other than proceeds constituting Excluded Receivables Assets) which constitute Bank Collateral (or proceeds thereof); PROVIDED THAT the Company or the Bank Agent shall have identified such Bank Collateral or proceeds in writing to the Receivables Agent or an Authorized Officer of the Receivables Agent otherwise has actual knowledge of the identity of such Bank Collateral or proceeds; and PROVIDED FURTHER that if the Bank Agent shall so request in a written notice to the Receivables Agent, the Receivables Agent shall return such funds and property to the Bank Agent instead of to the Company. For purposes of maintaining the perfection of the Bank Agent's lien thereon, the Bank Agent hereby appoints the Receivables Agent as its agent in respect of such funds or other property. (b) The Bank Agent hereby agrees to promptly return to the Receivables Agent any funds or other property which constitute Specified Assets (or proceeds thereof); PROVIDED THAT the Receivables Agent shall have identified such Specified Assets or proceeds in writing to the Bank Agent or an officer of the Bank Agent otherwise has actual knowledge of the identity of such Specified Assets or proceeds. For purposes of maintaining the perfection of the Receivables Agent's interests therein, the Receivables Agent hereby appoints the Bank Agent as its agent with respect to such Specified Assets and proceeds. (c) All payments made by an Obligor that is obligated to make payment with respect to both Specified Assets and other Receivables shall be applied against the Receivables, if any, that are designated by such Obligor. In the absence of such designation, such payment shall be applied against the oldest outstanding Receivables owed by such Obligor. (d) Unless the Receivables Agent and the Bank Agent agree otherwise in writing, neither the Receivables Agent nor the Bank Agent shall send any notice to an Obligor directing it to remit payments in respect of any Receivable to any account other than the Collection Accounts. (e) In the event that any of the Specified Assets (or proceeds thereof, other than proceeds constituting Excluded Receivables Assets) become commingled with any Bank Collateral (or proceeds thereof), then the Bank Agent and the Receivables Agent shall, in good faith, cooperate with each other to separate the Specified Assets (and proceeds thereof) from such Bank Collateral (and proceeds thereof); PROVIDED, HOWEVER, that in the case of any assets, if such separation is not possible, the parties hereto agree to share the proceeds of such property proportionately according to the interests of the Bank Agent and the Receivables Agent therein; PROVIDED, FURTHER, that each party shall bear its own out-of-pocket costs and expenses incurred to effect such separation and/or sharing (including without limitation fees and expenses of auditors and attorneys) to the extent that such costs and expenses are not reimbursed or otherwise borne by the Company (it being understood that nothing in this Agreement shall limit the obligation of the Company to make such reimbursement or bear such costs and expenses in accordance with the terms of the Credit Agreement, the Security Agreement and the Transaction Documents); and PROVIDED, FURTHER, that this Section 4(e) shall not require any party to this Agreement to take any action which it believes, in good faith, may prejudice its ability to realize the value of, or to otherwise protect, its interests (and the interests of the parties for which it acts). (f) The Receivables Agent hereby acknowledges that Collections of Excluded Receivables Assets may from time to time be deposited in the Collection Accounts. In the event that the Receivables Agent gives notice to any bank maintaining a Collection Account that the Receivables Agent is asserting exclusive dominion and control over the Collection Accounts, the Receivables Agent agrees, upon the Bank Agent's request from and after the date on which purchases have terminated under the Purchase Agreement, to notify any banks maintaining a Collection Account of the Bank Agent's interest in and to such Collection Account to the extent that such notice may be reasonably necessary to perfect or preserve the Bank Agent's interest in any Collections of Excluded Receivables Assets as against the applicable banks. The Receivables Agent further agrees, upon the payment in full of the Aggregate Unpaids or, if earlier, the date on which all Specified Assets have been collected and/or written off as uncollectible, to transfer its ownership and control over the Collection Accounts to the Bank Agent in order to assist the Bank Agent in realizing its interest in and to the Excluded Receivables Assets. Any such transfer shall be without representation, recourse or warranty of any kind on the part of the Receivables Agent. If such transfer occurs prior to the date on which the Aggregate Unpaids have been paid and collected in full, then, (i) notwithstanding any such transfer, all Collections and other proceeds subsequently deposited into the Collection accounts on account of the Specified Assets shall be delivered to the Receivables Agent as provided in paragraph (e) above and (ii) the Bank Agent shall, if the Receivables Agent so requests, notify any bank maintaining a Collection Account of the Receivables Agent's continuing interest, if any, in the Collections of such Specified Assets as may be reasonably necessary to maintain perfection of or otherwise preserve the Receivables Agent's interest in any Collections of Specified Assets as against the banks maintaining the Collection Accounts.
Appears in 1 contract
Separation of Collateral. (a) The Receivables Subject to Section 4, the ABL Agent and each Lender hereby agrees promptly to transfer and return to to, or in accordance with the Company written direction of, the Securitization Trustee, at such account or other place as the Securitization Trustee may so instruct, any funds or other property other than Specified Assets (that are received by the ABL Agent or proceeds thereof, other than proceeds constituting Excluded Receivables Assets) which constitute Bank Collateral (or proceeds thereof); PROVIDED THAT a Lender and that are identified to the Company ABL Agent by the Servicer or the Bank Agent shall have identified such Bank Collateral or proceeds Securitization Trustee in writing to the Receivables Agent or an Authorized Officer of the Receivables Agent otherwise has actual knowledge of the identity of such Bank Collateral or proceeds; and PROVIDED FURTHER that if the Bank Agent shall so request in a written notice to the Receivables Agent, the Receivables Agent shall return such funds and property to the Bank Agent instead of to the Companyas constituting Securitization Assets. For purposes of maintaining and protecting the perfection of the Bank AgentSecuritization Trustee's lien thereoninterest therein, the Bank Agent Securitization Trustee hereby appoints the Receivables ABL Agent as its agent in respect of such funds or other property; provided, that the ABL Agent's sole duty as such agent shall be to hold such funds and other property in trust for the benefit of the Securitization Trustee, to perfect any ownership or security interest of Securitization Trustee therein, and to transfer such funds or other property to or at the written direction of the Securitization Trustee as aforesaid.
(b) The Bank Agent Subject to Section 4 and solely to the extent of available funds on deposit in the Collection Account (as defined in the Securitization Indenture), the Securitization Trustee hereby agrees promptly to promptly transfer and return to to, or in accordance with the Receivables written direction of, the ABL Agent, such account or other place as the ABL Agent may so instruct, any funds or other property which constitute Specified Assets (that are received by the Securitization Trustee and that are identified by the Servicer or proceeds thereof); PROVIDED THAT the Receivables ABL Agent shall have identified such Specified Assets or proceeds to the Securitization Trustee in writing to the Bank Agent or an officer of the Bank Agent otherwise has actual knowledge of the identity of such Specified Assets or proceedsas constituting ABL Assets. For purposes of maintaining and protecting the perfection of the Receivables ABL Agent's interests interest therein, the Receivables ABL Agent hereby appoints the Bank Agent Securitization Trustee as its agent with in respect of such funds and other property; provided, that the Securitization Trustee's sole duty as such agent shall be to hold such Specified Assets funds or other property in trust for the benefit of the ABL Agent, to perfect any ownership or security interest of ABL Agent therein, and proceedsto transfer such funds or other property to or at the direction of the ABL Agent as aforesaid.
(c) All payments made by an Obligor The ABL Agent, the Lenders, the Securitization Trustee, and Conn each hereby acknowledges that is obligated to make payment with respect to both Specified certain related records and other files (including electronic files), documentation, computer hardware, software, intellectual property and similar assets may comprise a portion of the ABL Assets and other Receivables the Securitization Assets. Each of the parties hereto agrees to cooperate in good faith such that the respective interests of the ABL Agent, the Lenders and the Securitization Trustee (or further assignees of either) in such assets shall be applied against protected and preserved, and, without limiting the Receivablesobligations of Conn, if anythe Borrowers or Securitization SPV (as applicable) under the Securitization Documents or the ABL Documents, that are designated by the ABL Agent, the Lenders and the Securitization Trustee agree to permit each other reasonable access to such Obligor. In assets and the absence premises of Conn and its affiliates where the same may be located (in each case, to the extent they shall be in the possession or control of such designation, such payment party) as shall be applied against necessary or desirable to manage and realize on the oldest outstanding Receivables owed by such Obligor.
(d) Unless the Receivables Agent ABL Assets and the Bank Agent agree Securitization Assets, as the case may be. Except as otherwise provided in writingthe immediately preceding sentence, neither the Receivables Agent nor the Bank Agent shall send any notice to an Obligor directing it to remit payments in respect of any Receivable to any account other than the Collection Accounts.
(e) In the event that any of the Specified ABL Assets (or proceeds thereof, other than proceeds constituting Excluded Receivables Assets) the Securitization Assets become commingled with any Bank Collateral (or proceeds thereof)commingled, then each of the Bank ABL Agent and the Receivables Agent Securitization Trustee shall, in good faith, cooperate with each other to separate the Specified ABL Assets (and proceeds thereof) from such Bank Collateral (the Securitization Assets. If the ABL Agent shall have in its possession or control any of Conn's assets including any records, computer hardware, software and proceeds thereof); PROVIDED, HOWEVER, that in intellectual property related to or necessary or desirable for the case servicing of any assets, if such separation is not possiblethe Securitization Assets, the parties hereto agree ABL Agent shall provide the Securitization Trustee and its agents access to share the proceeds of such property proportionately according to the interests of the Bank Agent assets and the Receivables Agent therein; PROVIDED, FURTHER, that each party premises of Conn and its affiliates where the same may be located and such access shall bear its own be without condition or charge.
(d) The out-of-pocket costs and expenses incurred by the parties hereto to effect such any separation and/or sharing (including including, without limitation limitation, reasonable fees and expenses of auditors and attorneys) to the extent that such costs and expenses are not reimbursed or otherwise required by this Section 3 shall be borne by Conn and payable upon receipt by Conn of an invoice or other documentation. If Conn does not or is unable to pay such amounts, such amounts shall be paid pro rata (based on Remittances) by the Company (it being understood that nothing in this Agreement ABL Agent and Securitization Trustee. Neither the ABL Agent nor the Securitization Trustee shall limit the obligation of the Company to make such reimbursement or bear such costs and expenses in accordance with the terms of the Credit Agreement, the Security Agreement and the Transaction Documents); and PROVIDED, FURTHER, that be required by this Section 4(e) shall not require any party to this Agreement 3 to take any action which that it believes, in good faith, may prejudice its ability to realize the value of, or to otherwise protect, its interests (and the interests of the parties for which it acts)) in the ABL Assets or the Securitization Assets, respectively; provided, that nothing in this sentence shall relieve any of Conn, the Borrowers or Securitization SPV of its obligations hereunder or under the ABL Documents or the Securitization Documents, as applicable, with respect to the ABL Assets or the Securitization Assets.
(e) The proceeds of any Securitization Returned Goods shall be treated as Securitization Remittances; provided, however, that if any ABL Assets that consist of inventory as defined under Section 9-102 of the Uniform Commercial Code of the State of New York have been commingled with any Securitization Returned Goods and the Securitization Returned Goods cannot be properly identified by the Servicer, the proceeds (whether Remittances or otherwise) related to such inventory shall be applied first, to the Securitization Assets, an amount equal to the fair market value of such Securitization Returned Goods as determined pursuant to the Securitization Documents and as reported by the Securitization Trustee and second, any remaining proceeds, to the ABL Agent.
(f) The Receivables Agent hereby acknowledges that Collections Payments made by a credit card issuer or processor or other bill payment service ("Credit Card Remittances") on account of Excluded Receivables Assets may from time to time be deposited in the Collection Accounts. In the event that the Receivables Agent gives notice to any bank maintaining a Collection Account that the Receivables Agent is asserting exclusive dominion and control over the Collection Accounts, the Receivables Agent agrees, upon the Bank Agent's request from and after the date on which purchases have terminated under the Purchase Agreement, to notify any banks maintaining a Collection Account of the Bank Agent's interest in and to such Collection Account to the extent that such notice may be reasonably necessary to perfect or preserve the Bank Agent's interest in any Collections of Excluded Receivables Assets as against the applicable banks. The Receivables Agent further agrees, upon the payment in full of the Aggregate Unpaids or, if earlier, the date on which all Specified Assets have been collected and/or written off as uncollectible, to transfer its ownership and control over the Collection Accounts to the Bank Agent in order to assist the Bank Agent in realizing its interest in and to the Excluded Receivables Assets. Any such transfer shall be without representation, recourse or warranty of any kind on the part of the Receivables Agent. If such transfer occurs prior to the date on which the Aggregate Unpaids have been paid and collected in full, then, (i) notwithstanding any such transfer, all Collections and other proceeds subsequently deposited into the Collection accounts on account of the Specified anx Xxcuritization Assets shall be delivered to the Receivables Agent treated as provided in paragraph (e) above Securitization Remittances and (ii) any ABL Assets shall be treated as ABL Remittances; provided, however, that if a single Credit Card Remittance contains both ABL Remittances and Securitization Remittances and the Bank Agent shallSecuritization Remittances cannot be properly identified by the Servicer, if such funds shall be deemed to be, first, Securitization Remittances in an amount equal to the Receivables Agent so requestsaggregate receivable balance of any outstanding receivables that are Securitization Assets paid by credit cards issued by such credit card issuer or processor and second, notify any bank maintaining a Collection Account of the Receivables Agent's continuing interest, if any, in the Collections of such Specified Assets as may be reasonably necessary to maintain perfection of or otherwise preserve the Receivables Agent's interest in any Collections of Specified Assets as against the banks maintaining the Collection AccountsABL Remittances.
Appears in 1 contract
Samples: Intercreditor Agreement (Conns Inc)
Separation of Collateral. (a) The Receivables Agent hereby agrees promptly to return to the Company SCP Pool funds or other property other than Specified Assets (or proceeds thereof, other than proceeds constituting Excluded Receivables Assets) which constitute Bank Collateral (or proceeds thereof)Lender Collateral; PROVIDED THAT the Company provided that SCP Pool or the Bank Lender Agent shall have identified such Bank Lender Collateral or proceeds in writing to the Receivables Agent or an Authorized Officer Agent of the Receivables Agent otherwise has actual knowledge of the identity of such Bank Lender Collateral or proceeds; and PROVIDED FURTHER provided further that if the Bank Lender Agent shall so request in a written notice to the Receivables Agent, the Receivables Agent shall return such funds and property to the Bank Lender Agent instead of to the CompanySCP Pool. For purposes of maintaining the perfection of the Bank Lender Agent's ’s lien thereon, the Bank Lender Agent hereby appoints the Receivables Agent as its agent in respect of such funds or other property.
(b) The Bank Lender Agent hereby agrees to promptly return to the Receivables Agent any funds or other property which constitute Specified Securitized Assets (or proceeds thereof); PROVIDED THAT provided that the Receivables Agent shall have identified such Specified Securitized Assets or proceeds in writing to the Bank Lender Agent or an officer of the Bank Lender Agent otherwise has actual knowledge of the identity of such Specified Securitized Assets or proceeds. For purposes of maintaining the perfection of the Receivables Agent's ’s interests therein, the Receivables Agent hereby appoints the Bank Lender Agent as its agent with respect to such Specified Securitized Assets and proceeds.
(c) All payments made by an Obligor that is obligated to make payment with respect to both Specified Accounts and Payment Intangibles included in the Securitized Assets and other Receivables Accounts and Payment Intangibles shall be applied against the ReceivablesAccounts and Payment Intangibles, if any, that are designated by such Obligor. In the absence of such designation, such payment shall be applied against the oldest outstanding Receivables owed by such Obligor.
(d) Unless the Receivables Agent and the Bank Lender Agent agree otherwise in writing, neither the Receivables Agent nor the Bank Lender Agent shall send any notice to an Obligor directing it to remit payments in respect of any Receivable constituting part of the Securitized Assets to any account other than the Collection Accounts.
(e) In the event that any of the Specified Securitized Assets (or proceeds thereof, other than proceeds constituting Excluded Receivables Assets) become commingled with any Bank Collateral (or proceeds thereof)Lender Collateral, then the Bank Lender Agent and the Receivables Agent shall, in good faith, cooperate with each other to identify or quantify and also to separate the Specified Securitized Assets (and proceeds thereof) from such Bank Collateral (and proceeds thereof)Lender Collateral; PROVIDEDprovided, HOWEVERhowever, that in the case of any assets, if such identification or quantification has been agreed but such separation is not possible, the parties hereto agree to share the proceeds of such property proportionately according to the interests of the Bank Lender Agent and the Receivables Agent thereinagreed to in connection with such agreed upon identification or quantification; PROVIDEDprovided, FURTHERfurther, that each party shall bear its own out-of-pocket costs and expenses incurred to effect such separation and/or sharing (including without limitation fees and expenses of auditors and attorneys) to the extent that such costs and expenses are not reimbursed or otherwise borne by the Company SPE, SCP Pool or any of SCP Pool’s other Subsidiaries (it being understood that nothing in this Agreement shall limit the obligation of the Company SPE, SCP Pool or such Subsidiary to make such reimbursement or bear such costs and expenses in accordance with the terms of the Credit Agreement, the Security Agreement Instruments and the Transaction Documents); and PROVIDEDprovided, FURTHERfurther, that this Section 4(e3(e) shall not require any party to this Agreement to take any action which it believes, in good faith, may prejudice its ability to realize the value of, or to otherwise protect, its interests (and the interests of the parties for which it acts).
(f) The Receivables Agent hereby acknowledges that Collections of Excluded Receivables Assets may from time to time be deposited in the Collection Accounts. In the event that the Receivables Agent gives notice to any bank maintaining a Collection Account that the Receivables Agent is asserting exclusive dominion and control over the Collection Accounts, the Receivables Agent agrees, upon the Bank Lender Agent's ’s request from and after the date on which purchases have terminated under the Purchase Agreement, to notify any banks maintaining a Collection Account of the Bank Lender Agent's ’s interest in and to such Collection Account to the extent that such notice may be reasonably necessary to perfect or preserve the Bank Lender Agent's ’s interest in any Collections of Excluded Receivables Assets as against the applicable banks. The Receivables Agent further agrees, upon the payment in full of the Aggregate Unpaids or, if earlier, the date on which all Specified Securitized Assets have been collected and/or written off as uncollectible, to transfer its ownership and control over the Collection Accounts to the Bank Lender Agent in order to assist the Bank Lender Agent in realizing its interest in and to the Excluded Receivables Assets. Any such transfer shall be without representation, recourse or warranty of any kind on the part of the Receivables Agent. If such transfer occurs prior to the date on which the Aggregate Unpaids have been paid and collected in full, then, (i) notwithstanding any such transfer, all Collections and other proceeds subsequently deposited into the Collection accounts Accounts on account of the Specified Securitized Assets shall be delivered to the Receivables Agent as provided in paragraph (e) above and (ii) the Bank Lender Agent shall, if the Receivables Agent so requests, notify any bank maintaining a Collection Account of the Receivables Agent's ’s continuing interest, if any, in the Collections of such Specified Securitized Assets as may be reasonably necessary to maintain perfection of or otherwise preserve the Receivables Agent's ’s interest in any Collections of Specified Securitized Assets as against the Lender Agent and the applicable banks maintaining the Collection Accounts.
Appears in 1 contract
Separation of Collateral. (a) The Receivables Agent Indenture Trustee hereby agrees promptly to transfer and return to to, or in accordance with the Company written direction of, the Conduit Agent, the Syndication Agent, the Fairway Agent, the applicable Securitization Agent or ACS (as applicable), at such account or other place as the Conduit Agent, the Syndication Agent, the Fairway Agent, the applicable Securitization Agent or ACS (as applicable) may so instruct, any funds or other property other than Specified that are received by the Indenture Trustee and that are identified to the Indenture Trustee in writing as not constituting the 2000-1 Assets, the 2002-1 Assets, the 2002-2 Assets, the 2003-1 Assets (or proceeds thereof, other than proceeds constituting Excluded Receivables Assets) which constitute Bank Collateral (or proceeds thereof); PROVIDED THAT the Company or the Bank Agent shall have identified such Bank Collateral or proceeds in writing to 2003-2 Assets but instead constituting the Receivables Agent or an Authorized Officer of the Receivables Agent otherwise has actual knowledge of the identity of such Bank Collateral or proceeds; and PROVIDED FURTHER that if the Bank Agent shall so request in a written notice to the Receivables AgentConduit Assets, the Receivables Agent shall return such funds and property to Syndicated Loan Assets, the Bank Agent instead of to Fairway Assets, the CompanySecuritization Assets or Other Assets. For purposes of maintaining the perfection of the Bank Conduit Agent's lien thereon’s, the Bank Syndication Agent’s, the Fairway Agent’s, the applicable Securitization Agent’s and ACS’ (as applicable) interest therein, the Conduit Agent, the Syndication Agent, the Fairway Agent, the applicable Securitization Agent and ACS each hereby appoints the Receivables Agent Indenture Trustee as its agent in respect of such funds or other property; provided, that, the Indenture Trustee’s sole duty as such agent shall be to hold such funds and other property for the benefit of the Conduit Agent, the Syndication Agent, the Fairway Agent, the applicable Securitization Agent and ACS (as applicable) and to transfer such funds or other property to or at the written direction of the Conduit Agent, the Syndication Agent, the Fairway Agent, the applicable Securitization Agent and ACS (as applicable) as aforesaid.
(b) The Bank Conduit Agent hereby agrees promptly to promptly transfer and return to to, or in accordance with the Receivables directions of, the Indenture Trustee, the Syndication Agent, the Fairway Agent, the applicable Securitization Agent or ACS (as applicable), at such account or other place as the Indenture Trustee, the Syndication Agent, the Fairway Agent, the applicable Securitization Agent or ACS (as applicable) may instruct, any funds or other property which constitute Specified that are received by the Conduit Agent and that are identifiable by the Conduit Agent, using reasonable efforts, as not constituting the Conduit Assets (or proceeds thereof); PROVIDED THAT but instead constituting the Receivables Agent shall have identified such Specified 2000-1 Assets, the 2002-1 Assets, the 2002-2 Assets, the 2003-1 Assets, the 2003-2 Assets, the Syndicated Loan Assets, the Fairway Assets, the Securitization Assets or proceeds in writing to the Bank Agent or an officer of the Bank Agent otherwise has actual knowledge of the identity of such Specified Assets or proceedsOther Assets. For purposes of maintaining the perfection of the Receivables Indenture Trustee’s, the Syndication Agent's interests ’s, the Fairway Agent’s, the applicable Securitization Agent’s and ACS’ (as applicable) interest therein, the Receivables Indenture Trustee, the Syndication Agent, the Fairway Agent, the applicable Securitization Agent and ACS each hereby appoints the Bank Conduit Agent as its agent with in respect of such funds and other property; provided, that, the Conduit Agent’s sole duty as such agent shall be to hold such Specified Assets funds or other property for the benefit of the Indenture Trustee, the Syndication Agent, the Fairway Agent, the applicable Securitization Agent and proceedsACS (as applicable) and to transfer such funds or other property to or at the direction of the Indenture Trustee, the Syndication Agent, the Fairway Agent, the applicable Securitization Agent and ACS (as applicable) as aforesaid.
(c) All payments made Each Securitization Agent hereby agrees promptly to transfer and return to, or in accordance with the directions of, the Indenture Trustee, the Conduit Agent, the Syndication Agent, the Fairway Agent, any other Securitization Agent or ACS (as applicable), at such account or other place as the Indenture Trustee, the Conduit Agent, the Syndication Agent, the Fairway Agent, such other Securitization Agent or ACS (as applicable) may instruct, any funds or other property that are received by an Obligor the Securitization Agent and that is obligated to make payment with are identifiable by the Securitization Agent, using reasonable efforts, as not constituting its Securitization Assets but instead constituting the 2000-1 Assets, the 2002-1 Assets, the 2002-2 Assets, the 2003-1 Assets, the 2003-2 Assets, the Conduit Assets, the Securitization Assets in which it has not been granted in interest under its applicable Securitization Documents, the Syndicated Loan Assets, the Fairway Assets or Other Assets. For purposes of maintaining the perfection of the Indenture Trustee’s, the Syndication Agent’s, the Fairway Agent’s, such other Securitization Agent’s, the Conduit Agent’s and ACS’ (as applicable) interest therein, the Indenture Trustee, such other Securitization Agent, the Syndication Agent, the Fairway Agent, the Conduit Agent and ACS each hereby appoints the Securitization Agent as its agent in respect to both Specified Assets of such funds and other Receivables property; provided, that, the Securitization Agent’s sole duty as such agent shall be applied against to hold such funds or other property for the Receivables, if any, that are designated by such Obligor. In benefit of the absence of such designationIndenture Trustee, such payment shall be applied against other Securitization Agent, the oldest outstanding Receivables owed by Syndication Agent, the Fairway Agent, the Conduit Agent and ACS (as applicable) and to transfer such Obligorfunds or other property to or at the direction of the Indenture Trustee, such other Securitization Agent, the Syndication Agent, the Fairway Agent, the Conduit Agent and ACS (as applicable) as aforesaid.
(d) Unless The Syndication Agent hereby agrees promptly to transfer and return to, or in accordance with the Receivables directions of, the Indenture Trustee, the Conduit Agent, the Fairway Agent, the applicable Securitization Agent or ACS (as applicable), at such account or other place as the Indenture Trustee, the Conduit Agent, the Fairway Agent, the applicable Securitization Agent or ACS (as applicable) may instruct, any funds or other property that are received by the Syndication Agent and that are identifiable by the Bank Syndication Agent, using reasonable efforts, as not constituting the Syndicated Loan Assets but instead constituting the 2000-1 Assets, the 2002-1 Assets, the 2002-2 Assets, the 2003-1 Assets, the 2003-2 Assets, the Securitization Assets, the Conduit Assets, the Fairway Assets or Other Assets. For purposes of maintaining the perfection of the Indenture Trustee’s, the Conduit Agent’s, the applicable Securitization Agent’s or ACS’ (as applicable) interest therein, the Indenture Trustee, the Conduit Agent, the Fairway Agent, the applicable Securitization Agent agree otherwise in writing, neither and ACS each hereby appoints the Receivables Syndication Agent nor the Bank Agent shall send any notice to an Obligor directing it to remit payments as its agent in respect of any Receivable such funds and other property; provided, that, the Syndication Agent’s sole duty as such agent shall be to any account hold such funds or other than property for the Collection Accountsbenefit of the Indenture Trustee, the Conduit Agent, the Fairway Agent, such other Securitization Agent and ACS (as applicable) and to transfer such funds or other property to or at the direction of the Indenture Trustee, the Conduit Agent, the Fairway Agent, such other applicable Securitization Agent and ACS (as applicable) as aforesaid.
(e) In The Fairway Agent hereby agrees promptly to transfer and return to, or in accordance with the directions of, the Indenture Trustee, the Syndication Agent, the Conduit Agent, the applicable Securitization Agent or ACS (as applicable), at such account or other place as the Indenture Trustee, the Syndication Agent, the Conduit Agent, the applicable Securitization Agent or ACS (as applicable) may instruct, any funds or other property that are received by the Conduit Agent and that are identifiable by the Fairway Agent, using reasonable efforts, as not constituting the Fairway Assets but instead constituting the 2000-1 Assets, the 2002-1 Assets, the 2002-2 Assets, the 2003-1 Assets, the 2003-2 Assets, the Syndicated Loan Assets, the Conduit Assets, the Securitization Assets or Other Assets. For purposes of maintaining the perfection of the Indenture Trustee’s, the Syndication Agent’s, the Conduit Agent’s, the applicable Securitization Agent’s and ACS’ (as applicable) interest therein, the Indenture Trustee, the Syndication Agent, the applicable Securitization Agent, the Conduit Agent and ACS each hereby appoints the Fairway Agent as its agent in respect of such funds and other property; provided, that, the Fairway Agent’s sole duty as such agent shall be to hold such funds or other property for the benefit of the Indenture Trustee, the Syndication Agent, the Conduit Agent, the applicable Securitization Agent and ACS (as applicable) and to transfer such funds or other property to or at the direction of the Indenture Trustee, the Syndication Agent, the Conduit Agent, the applicable Securitization Agent and ACS (as applicable) as aforesaid.
(f) ACS hereby agrees promptly to transfer and return to, or in accordance with the directions of, the Indenture Trustee, the Conduit Agent, the Syndication Agent, the Fairway Agent, or the applicable Securitization Agent (as applicable), at such account or other place as the Indenture Trustee, the Syndication Agent, the Fairway Agent, or the applicable Securitization Agent (as applicable) may instruct, any funds or other property that are received by ACS and that are identifiable by ACS, using reasonable efforts, as not constituting Other Assets but instead constituting the 2000-1 Assets, the 2002-1 Assets, the 2002-2 Assets, the 2003-1 Assets, the 2003-2 Assets, the Conduit Assets, the Syndicated Loan Assets, the Fairway Assets or the Securitization Assets. For purposes of maintaining the perfection of the Indenture Trustee’s, the Conduit Agent’s, the Syndication Agent’s, the Fairway Agent’s and the applicable Securitization Agent’s (as applicable) interest therein, the Indenture Trustee, the Conduit Agent, the Syndication Agent, the Fairway Agent and the applicable Securitization Agent each hereby appoints ACS as its agent in respect of such funds and other property; provided, that, ACS’ sole duty as such agent shall be to hold such funds or other property for the benefit of the Indenture Trustee, the Conduit Agent, the Syndication Agent, the Fairway Agent and the applicable Securitization Agent (as applicable) and to transfer such funds or other property to or at the direction of the Indenture Trustee, the Conduit Agent, the Syndication Agent, the Fairway Agent and the applicable Securitization Agent (as applicable) as aforesaid.
(g) The Indenture Trustee, the Conduit Agent, the Syndication Agent, the Fairway Agent, the applicable Securitization Agent and ACS each hereby acknowledges that certain related records and other files (including electronic files), documentation, software and similar assets may comprise a portion of the 2000-1 Assets, the 2002-1 Assets, the 2002-2 Assets, the 2003-1 Assets, the 2003-2 Assets, the Conduit Assets, the Syndicated Loan Assets, the Fairway Assets, the Securitization Assets and/or the Other Assets. Each of the parties hereto agrees to cooperate in good faith such that the respective interests of the Indenture Trustee, the Conduit Agent, the Syndication Agent, the Fairway Agent, any Securitization Agent and ACS (or further assignees thereof) in such assets shall be protected and preserved, and, without limiting the obligations of the Originator, the Borrower, ACS Funding, the Issuers and Trust Depositors under the Credit Documents and the Syndicated Loan Documents, the Indenture Trustee, the Conduit Agent, the Syndication Agent, the Fairway Agent, each Securitization Agent and ACS agree to permit each other reasonable access to such assets (to the extent they shall be in the possession or control of such party) as shall be necessary or desirable to manage and realize on the 2000-1 Assets, the 2002-1 Assets, the 2002-2 Assets, the 2003-1 Assets, the 2003-2 Assets, the Conduit Assets, the Syndicated Loan Assets, the Fairway Assets, the Securitization Assets or the Other Assets, as the case may be. Except as otherwise provided in the immediately preceding sentence, in the event that any of the Specified 2000-1 Assets, the 2002-1 Assets, the 2002-2 Assets, the 2003-1 Assets, the 2003-2 Assets, the Conduit Assets, the Syndicated Loan Assets, the Fairway Assets, the Securitization Assets (or proceeds thereof, other than proceeds constituting Excluded Receivables Assets) the Other Assets become commingled with any Bank Collateral (or proceeds thereof)commingled, then each of the Bank Indenture Trustee, the Conduit Agent, the Syndication Agent, the Fairway Agent and the Receivables each Securitization Agent shall, in good faith, cooperate with each other to separate the Specified Assets (and proceeds thereof) from such Bank Collateral (and proceeds thereof); PROVIDED, HOWEVER, that in the case of any assets, if such separation is not possible2000-1 Assets, the parties hereto agree to share 2002-1 Assets, the proceeds 2002-2 Assets, the 2003-1 Assets, the 2003-2 Assets, the Conduit Assets, the Syndicated Loan Assets, the Securitization Assets, the Fairway Assets or the Other Assets, as applicable.
(h) Out of such property proportionately according to the interests of the Bank Agent and the Receivables Agent therein; PROVIDED, FURTHER, that each party shall bear its own out-of-pocket costs and expenses incurred by the parties hereto to effect such any separation and/or sharing (including without limitation reasonable fees and expenses of auditors and attorneys) to the extent that such costs and expenses are not reimbursed or otherwise required by this Section 2 shall be borne by the Company (it being understood that nothing in this Agreement shall limit the obligation of the Company to make such reimbursement or bear such costs and expenses in accordance with the terms of the Credit AgreementACS. The Indenture Trustee, the Security Agreement Conduit Agent, the Syndication Agent, the Fairway Agent, each Securitization Agent and the Transaction Documents); and PROVIDED, FURTHER, that ACS shall not be required by this Section 4(e) shall not require any party to this Agreement 2 to take any action which that they or it believes, in good faith, may prejudice its ability to realize the value of, or to otherwise protect, its interests (and the interests of the parties for which it acts).
(f) The Receivables Agent hereby acknowledges that Collections of Excluded Receivables Assets may from time to time be deposited in the Collection Accounts. In the event that the Receivables Agent gives notice to any bank maintaining a Collection Account that the Receivables Agent is asserting exclusive dominion and control over the Collection Accounts2000-1 Assets, the Receivables Agent agrees2002-1 Assets, upon the Bank Agent's request from 2002-2 Assets, the 2003-1 Assets, the 2003-2 Assets, the Conduit Assets, the Syndicated Loan Assets, the Fairway Assets, the Securitization Assets or the Other Assets, respectively; provided, that, nothing in this sentence shall relieve the Borrower, the Originator, ACS Funding, the Issuers and after the date on which purchases have terminated Trust Depositors of their respective obligations hereunder or under the Purchase AgreementCredit Documents and the Syndicated Loan Documents, to notify any banks maintaining a Collection Account of the Bank Agent's interest in and to such Collection Account as applicable, with respect to the extent that such notice may be reasonably necessary to perfect or preserve the Bank Agent's interest in any Collections of Excluded Receivables Assets as against the applicable banks. The Receivables Agent further agrees, upon the payment in full of the Aggregate Unpaids or, if earlier2000-1 Assets, the date on which all Specified 2002-1 Assets, the 2002-2 Assets, the 2003-1 Assets, the 2003-2 Assets, the Conduit Assets, the Syndicated Loan Assets, the Fairway Assets have been collected and/or written off as uncollectible, to transfer its ownership and control over or the Collection Accounts to the Bank Agent in order to assist the Bank Agent in realizing its interest in and to the Excluded Receivables Assets. Any such transfer shall be without representation, recourse or warranty of Securitization Assets notwithstanding any kind effect thereof on the part of the Receivables Agent. If such transfer occurs prior to the date on which the Aggregate Unpaids have been paid and collected in full, then, (i) notwithstanding any such transfer, all Collections and other proceeds subsequently deposited into the Collection accounts on account of the Specified Other Assets shall be delivered to the Receivables Agent as provided in paragraph (e) above and (ii) the Bank Agent shall, if the Receivables Agent so requests, notify any bank maintaining a Collection Account of the Receivables Agent's continuing interest, if any, in the Collections of such Specified Assets as may be reasonably necessary to maintain perfection of or otherwise preserve the Receivables Agent's interest in any Collections of Specified Assets as against the banks maintaining the Collection AccountsACS’ rights or interests therein or thereto.
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Samples: Intercreditor and Lockbox Administration Agreement (American Capital Strategies LTD)
Separation of Collateral. (a) The Receivables Each Debt Agent hereby agrees promptly agrees, following any enforcement action by or on behalf of its Related Debt Secured Parties against any Debt Collateral, to return to the Company funds or other property other than Specified Assets (or proceeds thereof, other than proceeds constituting Excluded Receivables Assets) which constitute Bank Collateral (or proceeds thereof); PROVIDED THAT the Company or the Bank Agent shall have identified such Bank Collateral or proceeds in writing to notify the Receivables Agent or an Authorized Officer of such enforcement action and hold in trust for the benefit of the Receivables Agent otherwise has actual knowledge of the identity of such Bank Collateral or proceeds; and PROVIDED FURTHER that if the Bank Agent shall so request in a written notice to the Receivables Agent, the Receivables Agent shall return such funds and property to the Bank Agent instead of to the Company. For purposes of maintaining the perfection of the Bank Agent's lien thereon, the Bank Agent hereby appoints the Receivables Agent as its agent in respect of such funds or other property.
(b) The Bank Agent hereby agrees to promptly return (with appropriate endorsements, if applicable) to the Receivables Agent any funds or other property which constitute Specified Securitization Assets (or proceeds thereof); PROVIDED THAT that are identified as such in writing by the Receivables Agent shall have identified such Specified Assets or proceeds in writing to the Bank any other Debt Agent or an officer of the Bank that such Debt Agent otherwise has actual knowledge of the identity of such Specified Assets or proceedsis a Securitization Asset. For purposes of maintaining the perfection of the Receivables Agent's ’s interests therein, the Receivables Agent hereby appoints the Bank each Debt Agent as its agent bailee with respect to such Specified Assets Securitization Assets, and proceedseach Debt Agent hereby accepts such appointment.
(b) The Receivables Agent hereby agrees to hold in trust for the benefit of the Debt Agents and to promptly return (with appropriate endorsements, if applicable) to the Debt Agents any funds or other property which constitute Debt Collateral; provided, however, that the Receivables Agent shall have no obligation to return any such funds or other property to (i) the Second Lien Collateral Agent until the Receivables Agent has received written confirmation from the First Lien Agent or the Second Lien Agent that all First Lien Obligations have been paid in full and the Receivables Agent is authorized to turn over funds and other property to the Second Lien Collateral Agent hereunder and (ii) the Third Lien Collateral Agent until the Receivables Agent has received written confirmation from the First Lien Agent and the Second Lien Collateral Agent that all First Lien Obligations and Second Lien Obligations have been paid in full and the Receivables Agent is authorized to turn over funds and other property to the Third Lien Collateral Agent hereunder. For purposes of maintaining the perfection of each Debt Agent’s interests therein, each Debt Agent hereby appoints the Receivables Agent as its bailee with respect to such Debt Collateral, and the Receivables Agent hereby accepts such appointment.
(c) All payments made by an Obligor that is obligated to make payment with respect to both Specified Securitization Assets and other Receivables Debt Collateral shall be applied against the Receivables, if any, that are Securitization Assets or the Debt Collateral as designated by such Obligor. In the absence of such designationdesignation and the inability of Foresight or its applicable subsidiary, using reasonable efforts, to identify such payment as constituting Securitization Assets or Debt Collateral, each Debt Agent and the Receivables Agent agree to share the proceeds of such payment proportionately according to their respective interests. Nothing in this Section 3(c) shall be applied against limit the oldest outstanding rights and obligations of any Debt Agent and the Receivables owed by such ObligorAgent under Sections 3(a) and 3(b).
(d) Unless the Receivables Agent and the Bank Agent agree otherwise in writingNo Debt Agent, neither the Receivables Agent nor the Bank Agent shall send any notice to an Obligor directing it to remit payments in respect either for itself or on behalf of any Receivable other Related Debt Secured Party, shall have any right to take any action with respect to the Securitization Assets, whether by judicial or non-judicial foreclosure, notification to any account other than debtors, or otherwise, in each case, prior to the Collection AccountsFinal Payout Date.
(e) The Receivables Agent, either for itself or on behalf of any Receivables Lender, shall not have any right to take any action with respect to the Debt Collateral, whether by judicial or non-judicial foreclosure or otherwise.
(f) In the event that any of the Specified Securitization Assets (or proceeds thereof, other than proceeds constituting Excluded Receivables Assets) become commingled with any Bank Collateral (or proceeds thereof)Debt Collateral, then the Bank each Debt Agent and the Receivables Agent shall, in good faith, cooperate with each other to separate the Specified Securitization Assets (and proceeds thereof) from such Bank Collateral (and proceeds thereof)Debt Collateral; PROVIDEDprovided, HOWEVERhowever, that in the case of any assets, if such separation is not possible, the parties hereto agree to share the proceeds of such property proportionately according to the respective interests of the Bank Agent Debt Agents (and their Related Debt Secured Parties) and the Receivables Agent thereinAgent; PROVIDEDprovided, FURTHERfurther, that each party shall bear its own out-of-pocket costs and expenses incurred to effect such separation and/or sharing (including including, without limitation limitation, fees and expenses of auditors and attorneys) to the extent that such costs and expenses are not reimbursed or otherwise borne by the Company SPV, the Originators and/or the Debt Parties (it being understood that nothing in this Agreement shall limit the obligation of the Company SPV, the Originators and/or the Debt Parties to make such reimbursement or bear such costs and expenses in accordance with the terms of the Credit Agreement, the Security Agreement Debt Documents and the Transaction Documents); and PROVIDEDprovided, FURTHERfurther, that this Section 4(e3(f) shall not require any party to this Agreement to take any action which it believes, in good faith, may prejudice its ability to realize the value of, or to otherwise protect, its interests (and the interests of the parties for which it acts).
(fg) The Receivables Agent hereby acknowledges that Collections of Excluded Receivables Assets may from time Nothing in this Agreement will be deemed to time be deposited in the Collection Accounts. In the event that require the Receivables Agent gives notice or any Debt Agent to any bank maintaining a Collection Account that (i) proceed against certain property securing the Receivables Agent is asserting exclusive dominion and control over Borrower Obligations or the Collection AccountsObligations, respectively, prior to proceeding against other property securing the Receivables Agent agreessame or (ii) marshal the Securitization Assets or the Debt Collateral, respectively, upon the Bank Agent's request from and after the date on which purchases have terminated under the Purchase Agreement, to notify any banks maintaining a Collection Account of the Bank Agent's interest in and to such Collection Account to the extent that such notice may be reasonably necessary to perfect or preserve the Bank Agent's interest in any Collections of Excluded Receivables Assets as against the applicable banks. The Receivables Agent further agrees, upon the payment in full of the Aggregate Unpaids or, if earlier, the date on which all Specified Assets have been collected and/or written off as uncollectible, to transfer its ownership and control over the Collection Accounts to the Bank Agent in order to assist the Bank Agent in realizing its interest in and to the Excluded Receivables Assets. Any such transfer shall be without representation, recourse or warranty of any kind on the part enforcement of the Receivables Agent. If such transfer occurs prior to ’s or any Debt Agent’s remedies under the date on which the Aggregate Unpaids have been paid and collected in fullTransaction Documents or Debt Documents, then, (i) notwithstanding any such transfer, all Collections and other proceeds subsequently deposited into the Collection accounts on account of the Specified Assets shall be delivered to the Receivables Agent as provided in paragraph (e) above and (ii) the Bank Agent shall, if the Receivables Agent so requests, notify any bank maintaining a Collection Account of the Receivables Agent's continuing interest, if any, in the Collections of such Specified Assets as may be reasonably necessary to maintain perfection of or otherwise preserve the Receivables Agent's interest in any Collections of Specified Assets as against the banks maintaining the Collection Accountsapplicable.
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