Common use of Application After Event of Default Clause in Contracts

Application After Event of Default. (a) Notwithstanding anything to the contrary contained in Section 6.11.1 or elsewhere herein or in any other Loan Document, including, without limitation any implied priority of payments contained in Section 11.22 hereof or in the Guaranty, it being the parties’ intent that this provision control over any inconsistent provision of any Loan Document, upon the occurrence of an Event of Default, Lender shall be under no obligation to release or disburse any of the Reserve Funds and may, at its option: (i) withdraw the Reserve Funds held in any Borrower Account and any other funds of Borrower then in the possession of Lender, Servicer or Cash Management Bank (including any Borrower Funds) and apply such funds to the items for which such Reserve Funds were established or to the payment of the Debt in such order, proportion and priority as Lender may determine in its sole discretion; provided, however, that Lender agrees that it shall not apply any portion of the Reserve Funds to the Outstanding Principal Balance unless and until Lender has accelerated the Loan; and/or (ii) if a default has occurred under the Master Lease that is continuing past the expiration of any applicable cure period, withdraw the Reserve Funds held in any Master Tenant Account and any other funds of Master Tenant then in the possession of Lender, Servicer or Cash Management Bank (including any Master Tenant Funds) and apply such funds to the items for which such Reserve Funds were established or to the payment of the obligations of Master Tenant under the Master Lease (and any funds so applied shall thereupon constitute Borrower Funds, subject to application in accordance with the preceding clause (ii)) in such order, proportion and priority as Lender may determine in its sole discretion. In addition, if Lender has accelerated the Loan, with or without notice to Borrower or Master Tenant, except as required by law, at any time and from time to time, Lender may charge, set-off and otherwise apply all or any part of the Master Tenant Funds not applied pursuant to the preceding clause (ii) against the Obligations or any part thereof. Subject to the limitation that Lender may apply property of Master Tenant (including Master Tenant Funds) only to the payment, performance or other satisfaction of obligations of Master Tenant under the Master Lease prior to the acceleration of the Loan, Lender’s right to withdraw and apply the Reserve Funds shall be in addition to all other rights and remedies provided to Lender under the Loan Documents. (b) Notwithstanding the foregoing, so long as Borrower is the owner of the Property, Lender agrees that upon delivery to Lender of an Officer’s Certificate certifying that attached thereto is one or more true, correct, accurate, complete and, if applicable, executed remittance reports, tax returns or other filings required to accompany the payment of hotel room occupancy, use and/or sales taxes (collectively, “Hotel Occupancy Tax”) levied by one or more Governmental Authorities having jurisdiction over the Property (which remittance reports, tax returns or other filings shall be in the form provided by such Governmental Authorities that has levied the applicable Hotel Occupancy Tax being paid), Lender shall, to the extent funds remain on deposit in the Cash Management Account (but not on deposit in the Tax Account or the Insurance Account), disburse Reserve Funds to or for the benefit of Master Tenant in an amount equal to the Hotel Occupancy Tax liability reflected in such remittance reports, tax returns or other filings. At Lender’s option, Lender shall either disburse funds directly to Borrower in the form of one or more checks made payable to the applicable Governmental Authorities in which case Borrower shall (or shall cause Master Tenant) to promptly file such remittance reports, tax returns or other filings and pay the applicable Hotel Occupancy Tax or Lender may cause such tax returns or other filings to be filed, together with payment of the applicable Hotel Occupancy Tax, directly with remittance reports, the applicable Governmental Authorities. If Lender elects to disburse Reserve Funds to Borrower for the payment of Hotel Occupancy Taxes, Borrower shall provide evidence of the payment of such Hotel Occupancy Taxes promptly after Borrower’s receipt of same.

Application After Event of Default. (a) Notwithstanding anything to the contrary contained in Section 6.11.1 or elsewhere herein or in any other Loan Document, including, without limitation any implied priority of payments contained in Section 11.22 hereof or in the Guaranty, it being the parties’ intent that this provision control over any inconsistent provision of any Loan DocumentArticle 6, upon the occurrence and during the continuance of an Event of Default, Lender shall be under no obligation to release or disburse any of the Reserve Funds and mayLender, at its option: , may apply any Gross Revenue (iother than Security Deposits or Advance Deposits until forfeited or applied in accordance with the terms of the applicable Lease or Advance Booking Agreement, as the case may be) withdraw the Reserve Funds held in any Borrower Account and any other funds of Borrower then in the possession of Lender, Servicer or Cash Management Deposit Bank (including any Borrower Funds) and apply such funds to the items for which such Reserve Funds were established or on deposit in any Cash Management Account) to the payment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion; provided, however, that Lender agrees that it shall not apply permit the funding of (i) Approved Operating Expenses (excluding any portion of the Reserve Funds Incentive Management Fees) relating to the Outstanding Principal Balance Hilton Brand Managed Properties, to the extent not previously paid by Manager as Manager’s Expenses, (ii) Approved Operating Expenses relating to the Properties which are not Hilton Brand Managed Properties, and if applicable, Emergency Expenses, to the extent of Available Cash (as if Section 6.11.1 had been applied with respect to such Gross Revenue) and (iii) subject to the prior payment of Approved Operating Expenses and Emergency Expenses in accordance with the immediately preceding clauses (i) and (ii), Permitted Manager Termination Fees and Expenses, if any, to the extent of Available Cash (as if Section 6.11.1 had been applied with respect to such Gross Revenue) unless and until (with respect to clauses (ii) and (iii) above) the Loan has been accelerated in accordance with Section 8.2.1, the Maturity Date has occurred or the Lender has commenced a foreclosure action, or applied for the appointment of receiver, or exercised other similar remedies with respect to an Event of Default (or, with respect to clause (i) above, unless and until Lender has accelerated terminated the Loan; and/or (ii) if a default has occurred under the Master Lease that is continuing past the expiration of any applicable cure period, withdraw the Reserve Funds held in any Master Tenant Account and any other funds of Master Tenant then in the possession of Lender, Servicer or Cash Management Bank (including any Master Tenant Funds) and apply such funds to the items for which such Reserve Funds were established or to the payment Manager of the obligations of Master Tenant under the Master Lease (and any funds so applied shall thereupon constitute Borrower Funds, subject to application in accordance with the preceding clause (ii)) in such order, proportion and priority as Lender may determine in its sole discretion. In addition, if Lender has accelerated the Loan, with or without notice to Borrower or Master Tenant, except as required by law, at any time and from time to time, Lender may charge, set-off and otherwise apply all or any part of the Master Tenant Funds not applied Hilton Brand Managed Properties pursuant to the preceding clause (ii) against the Obligations or any part thereof. Subject to the limitation that Lender may apply property of Master Tenant (including Master Tenant Funds) only to the payment, performance or other satisfaction of obligations of Master Tenant under the Master Lease prior to the acceleration terms of the Loan, applicable Assignment of Management Agreement). Lender’s right to withdraw and apply any of the Reserve Funds foregoing funds shall be in addition to all other rights and remedies provided to Lender under the Loan Documents. (b) Notwithstanding the foregoing, so long as Borrower is the owner of the Property, Lender agrees that upon delivery to Lender of an Officer’s Certificate certifying that attached thereto is one or more true, correct, accurate, complete and, if applicable, executed remittance reports, tax returns or other filings required to accompany the payment of hotel room occupancy, use and/or sales taxes (collectively, “Hotel Occupancy Tax”) levied by one or more Governmental Authorities having jurisdiction over the Property (which remittance reports, tax returns or other filings shall be in the form provided by such Governmental Authorities that has levied the applicable Hotel Occupancy Tax being paid), Lender shall, to the extent funds remain on deposit in the Cash Management Account (but not on deposit in the Tax Account or the Insurance Account), disburse Reserve Funds to or for the benefit of Master Tenant in an amount equal to the Hotel Occupancy Tax liability reflected in such remittance reports, tax returns or other filings. At Lender’s option, Lender shall either disburse funds directly to Borrower in the form of one or more checks made payable to the applicable Governmental Authorities in which case Borrower shall (or shall cause Master Tenant) to promptly file such remittance reports, tax returns or other filings and pay the applicable Hotel Occupancy Tax or Lender may cause such tax returns or other filings to be filed, together with payment of the applicable Hotel Occupancy Tax, directly with remittance reports, the applicable Governmental Authorities. If Lender elects to disburse Reserve Funds to Borrower for the payment of Hotel Occupancy Taxes, Borrower shall provide evidence of the payment of such Hotel Occupancy Taxes promptly after Borrower’s receipt of same.

Application After Event of Default. (a) Notwithstanding anything to the contrary contained in Section 6.11.1 or elsewhere herein or in any other Loan Documentprovisions of this Credit Agreement, including, without limitation any implied priority of payments contained in Section 11.22 hereof or in the Guaranty, it being the parties’ intent that this provision control over any inconsistent provision of any Loan Document, upon after the occurrence and during the continuance of an Event of Default, all amounts collected or received by the Agent or any Lender shall be on account of amounts outstanding under no obligation to release or disburse any of the Reserve Funds Credit Documents or in respect of the Collateral shall be paid over or delivered as follows: FIRST, to the payment of all reasonable out-of-pocket costs and may, at its option: expenses (iincluding without limitation reasonable attorneys' fees) withdraw of the Reserve Funds held Agent in any Borrower Account connection with enforcing the rights of the Lenders under the Credit Documents and any other funds protective advances made by the Agent with respect to the Collateral under or pursuant to the terms of Borrower then in the possession Credit Documents; SECOND, to the payment of Lender, Servicer or Cash Management Bank all reasonable costs and expenses (including any Borrower Funds) without limitation reasonable attorneys' fees and apply such funds allocated cost of in-house attorneys), of each of the Lenders in connection with enforcing its rights under the Credit Documents; THIRD, to the items for which such Reserve Funds were established payment of all accrued fees and interest payable to the Lenders, the Agent or the Letter of Credit Issuer hereunder; FOURTH, to the payment of the Debt in such order, proportion and priority as Lender may determine in its sole discretion; provided, however, that Lender agrees that it shall not apply any portion outstanding principal amount of the Reserve Funds Loans and Unpaid Drawings under Letters of Credit, to the Outstanding Principal Balance unless payment or cash collateralization of the outstanding Letter of Credit Outstandings and until Lender has accelerated the Loanto any amounts owing under Interest Rate Protection Agreements with any Lenders or any Affiliate thereof, pro rata as set forth below; and/or (ii) if a default has occurred FIFTH, to all other obligations which shall have become due and payable under the Master Lease that is continuing past the expiration of any applicable cure periodCredit Documents and not repaid pursuant to clauses "FIRST" through "FOURTH" above; and SIXTH, withdraw the Reserve Funds held in any Master Tenant Account and any other funds of Master Tenant then in the possession of Lender, Servicer or Cash Management Bank (including any Master Tenant Funds) and apply such funds to the items for which such Reserve Funds were established or to the payment of the obligations of Master Tenant under surplus, if any, to whoever may be lawfully entitled to receive such surplus. In carrying out the Master Lease foregoing, (and any funds so a) amounts received shall be applied shall thereupon constitute Borrower Funds, subject in the numerical order provided until exhausted prior to application in accordance with the preceding clause (ii)) in such order, proportion and priority as Lender may determine in its sole discretion. In addition, if Lender has accelerated the Loan, with or without notice to Borrower or Master Tenant, except as required by law, at any time and from time to time, Lender may charge, set-off and otherwise apply all or any part of the Master Tenant Funds not applied pursuant to the preceding clause (ii) against the Obligations or any part thereof. Subject to the limitation that Lender may apply property of Master Tenant (including Master Tenant Funds) only to the payment, performance or other satisfaction of obligations of Master Tenant under the Master Lease prior to the acceleration of the Loan, Lender’s right to withdraw and apply the Reserve Funds shall be in addition to all other rights and remedies provided to Lender under the Loan Documents. next succeeding category; (b) Notwithstanding the foregoing, so long as Borrower is the owner each of the Property, Lender agrees that upon delivery to Lender of an Officer’s Certificate certifying that attached thereto is one or more true, correct, accurate, complete and, if applicable, executed remittance reports, tax returns or other filings required to accompany the payment of hotel room occupancy, use and/or sales taxes (collectively, “Hotel Occupancy Tax”) levied by one or more Governmental Authorities having jurisdiction over the Property (which remittance reports, tax returns or other filings Lenders shall be in the form provided by such Governmental Authorities that has levied the applicable Hotel Occupancy Tax being paid), Lender shall, to the extent funds remain on deposit in the Cash Management Account (but not on deposit in the Tax Account or the Insurance Account), disburse Reserve Funds to or for the benefit of Master Tenant in receive an amount equal to its pro rata share (based on the Hotel Occupancy Tax liability reflected proportion that the then outstanding Loans, Letter of Credit Outstandings and obligations under Interest Rate Protection Agreements held by such Lender bears to the aggregate then outstanding Loans, Letter of Credit Outstandings and obligations under Interest Rate Protection Agreements) of amounts available to be applied pursuant to clauses "SECOND," "THIRD," "FOURTH," and "FIFTH" above; and (c) to the extent that any amounts available for distribution pursuant to clause "FOURTH" above are attributable to the issued but undrawn amount of outstanding Letters of Credit, such amounts shall be held by the Agent in a cash collateral account and applied (x) first, to reimburse the Letter of Credit Issuer from time to time for any drawings under such remittance reportsLetters of Credit and (y) then, tax returns or following the expiration of all Letters of Credit, to all other filings. At Lender’s option, Lender shall either disburse funds directly to Borrower obligations of the types described in clauses "FIRST" and "FIFTH" above in the form of one or more checks made payable to the applicable Governmental Authorities manner provided in which case Borrower shall (or shall cause Master Tenant) to promptly file such remittance reports, tax returns or other filings and pay the applicable Hotel Occupancy Tax or Lender may cause such tax returns or other filings to be filed, together with payment of the applicable Hotel Occupancy Tax, directly with remittance reports, the applicable Governmental Authorities. If Lender elects to disburse Reserve Funds to Borrower for the payment of Hotel Occupancy Taxes, Borrower shall provide evidence of the payment of such Hotel Occupancy Taxes promptly after Borrower’s receipt of samethis Section 4.05.

Application After Event of Default. (a) Notwithstanding anything to the contrary contained in Section 6.11.1 or elsewhere herein or in any other Loan Documentthis Article 6, including, without limitation any implied priority of payments contained in Section 11.22 hereof or in during the Guaranty, it being the parties’ intent that this provision control over any inconsistent provision of any Loan Document, upon the occurrence continuance of an Event of DefaultDefault and following the acceleration of all or any portion of the Debt or the occurrence of the Maturity Date, Lender shall be under no obligation to release or disburse any of the Reserve Funds and may, at its option: (i) , in its sole and absolute discretion, at any time and from time to time, withdraw the Reserve Funds, including without limitation, all Cash Collateral Funds held (including any Low Debt Yield Avoidance Collateral) then on deposit in any Borrower Account and the Cash Collateral Account, and/or any other funds of Borrower then that are from time to time in the possession of Lender, Servicer or Deposit Bank (including, without limitation, any Gross Revenue and Reserve Funds on deposit in any Cash Management Bank (including any Borrower FundsAccount) and apply such funds to (i) the payment of the items for which such the Reserve Funds were established established, (ii) the payment of Lender’s costs and expenses and/or to any other amounts owed by Borrower to any Person and/or to any other Property-related costs and expenses (including without limitation, operating expenses, capital expenditures, tenant improvements, tenant allowances and leasing commissions), and (iii) following the acceleration of all or to any portion of the Debt or the occurrence of the Maturity Date, the payment of the Debt Obligations (including, without limitation, to make a prepayment of principal (together with the Prepayment Fee, if any, applicable thereto) or any other amounts due hereunder), which application of funds shall be in such order, proportion and priority as Lender may determine in its sole and absolute discretion; provided, however, that . Lender agrees that it shall not apply may make any portion such application without seeking the appointment of a receiver and without adversely affecting the rights of Lender to foreclose the Lien of the Reserve Funds to the Outstanding Principal Balance unless and until Lender has accelerated the Loan; and/or (ii) if a default has occurred Mortgage or exercise its other rights under the Master Lease that is continuing past the expiration of any applicable cure period, withdraw the Reserve Funds held in any Master Tenant Account and any other funds of Master Tenant then in the possession of Lender, Servicer or Cash Management Bank (including any Master Tenant Funds) and apply such funds to the items for which such Reserve Funds were established or to the payment of the obligations of Master Tenant under the Master Lease (and any funds so applied shall thereupon constitute Borrower Funds, subject to application in accordance with the preceding clause (ii)) in such order, proportion and priority as Lender may determine in its sole discretionLoan Documents. In addition, if Lender has accelerated the Loan, with or without notice to Borrower or Master Tenant, except as required by law, at any time and from time to time, Lender may charge, set-off and otherwise apply all or any part of the Master Tenant Funds not applied pursuant to the preceding clause (ii) against the Obligations or any part thereof. Subject to the limitation that Lender may apply property of Master Tenant (including Master Tenant Funds) only to the payment, performance or other satisfaction of obligations of Master Tenant under the Master Lease prior to the acceleration of the Loan, LenderXxxxxx’s right to withdraw and apply any of the Reserve Funds foregoing funds shall be in addition to all other rights and remedies provided to Lender under the Loan Documents. (b) Notwithstanding the foregoing, so long as Borrower is the owner of the Property, Lender agrees that upon delivery to Lender of an Officer’s Certificate certifying that attached thereto is one or more true, correct, accurate, complete and, if applicable, executed remittance reports, tax returns or other filings required to accompany the payment of hotel room occupancy, use and/or sales taxes (collectively, “Hotel Occupancy Tax”) levied by one or more Governmental Authorities having jurisdiction over the Property (which remittance reports, tax returns or other filings shall be in the form provided by such Governmental Authorities that has levied the applicable Hotel Occupancy Tax being paid), Lender shall, to the extent funds remain on deposit in the Cash Management Account (but not on deposit in the Tax Account or the Insurance Account), disburse Reserve Funds to or for the benefit of Master Tenant in an amount equal to the Hotel Occupancy Tax liability reflected in such remittance reports, tax returns or other filings. At Lender’s option, Lender shall either disburse funds directly to Borrower in the form of one or more checks made payable to the applicable Governmental Authorities in which case Borrower shall (or shall cause Master Tenant) to promptly file such remittance reports, tax returns or other filings and pay the applicable Hotel Occupancy Tax or Lender may cause such tax returns or other filings to be filed, together with payment of the applicable Hotel Occupancy Tax, directly with remittance reports, the applicable Governmental Authorities. If Lender elects to disburse Reserve Funds to Borrower for the payment of Hotel Occupancy Taxes, Borrower shall provide evidence of the payment of such Hotel Occupancy Taxes promptly after Borrower’s receipt of same.

Application After Event of Default. (a) Notwithstanding anything to the contrary contained in Section 6.11.1 or elsewhere herein or in any other Loan Documentprovisions of this Credit Agreement, including, without limitation any implied priority of payments contained in Section 11.22 hereof or in the Guaranty, it being the parties’ intent that this provision control over any inconsistent provision of any Loan Document, upon after the occurrence and during the continuance of an Event of Default, Lender shall be all amounts collected or received by the Administrative Agent or any Bank on account of amounts outstanding under no obligation to release or disburse any of the Reserve Funds Credit Documents or in respect of the Collateral shall be paid over or delivered as follows: FIRST, to the payment of all reasonable out-of-pocket costs and may, at its option: (i) withdraw the Reserve Funds held in any Borrower Account and any other funds of Borrower then in the possession of Lender, Servicer or Cash Management Bank expenses (including any Borrower Fundswithout limitation reasonable attorneys' fees) and apply such funds of the Administrative Agent in connection with enforcing the rights of the Banks under the Credit Documents; SECOND, to the items for which such Reserve Funds were established payment of all reasonable costs and expenses (including without limitation reasonable attorneys' fees), of each of the Banks in connection with enforcing its rights under the Credit Documents; THIRD, to the payment of all accrued fees and interest payable to the Banks, the Administrative Agent or the Issuing Agent hereunder; FOURTH, to the payment of the Debt in such order, proportion and priority as Lender may determine in its sole discretion; provided, however, that Lender agrees that it shall not apply any portion outstanding principal amount of the Reserve Funds Loans and Unpaid Drawings under Letters of Credit pro rata as set forth below; FIFTH, to the Outstanding Principal Balance unless payment or cash collateralization of the outstanding Letter of Credit Outstandings; SIXTH, to all other obligations which shall have become due and until Lender has accelerated the Loan; and/or (ii) if a default has occurred payable under the Master Lease that is continuing past Credit Documents and not repaid pursuant to clauses "FIRST" through "FIFTH" above and the expiration Hedging Obligation of the Company to any applicable cure periodof the Banks; and SEVENTH, withdraw the Reserve Funds held in any Master Tenant Account and any other funds of Master Tenant then in the possession of Lender, Servicer or Cash Management Bank (including any Master Tenant Funds) and apply such funds to the items for which such Reserve Funds were established or to the payment of the obligations of Master Tenant under surplus, if any, to whoever may be lawfully entitled to receive such surplus. In carrying out the Master Lease foregoing, (and any funds so a) amounts received shall be applied shall thereupon constitute Borrower Funds, subject in the numerical order provided until exhausted prior to application in accordance with the preceding clause (ii)) in such order, proportion and priority as Lender may determine in its sole discretion. In addition, if Lender has accelerated the Loan, with or without notice to Borrower or Master Tenant, except as required by law, at any time and from time to time, Lender may charge, set-off and otherwise apply all or any part of the Master Tenant Funds not applied pursuant to the preceding clause (ii) against the Obligations or any part thereof. Subject to the limitation that Lender may apply property of Master Tenant (including Master Tenant Funds) only to the payment, performance or other satisfaction of obligations of Master Tenant under the Master Lease prior to the acceleration of the Loan, Lender’s right to withdraw and apply the Reserve Funds shall be in addition to all other rights and remedies provided to Lender under the Loan Documents. next succeeding category; (b) Notwithstanding the foregoing, so long as Borrower is the owner each of the Property, Lender agrees that upon delivery to Lender of an Officer’s Certificate certifying that attached thereto is one or more true, correct, accurate, complete and, if applicable, executed remittance reports, tax returns or other filings required to accompany the payment of hotel room occupancy, use and/or sales taxes (collectively, “Hotel Occupancy Tax”) levied by one or more Governmental Authorities having jurisdiction over the Property (which remittance reports, tax returns or other filings Banks shall be in the form provided by such Governmental Authorities that has levied the applicable Hotel Occupancy Tax being paid), Lender shall, to the extent funds remain on deposit in the Cash Management Account (but not on deposit in the Tax Account or the Insurance Account), disburse Reserve Funds to or for the benefit of Master Tenant in receive an amount equal to its pro rata share (based on the Hotel Occupancy Tax liability reflected proportion that the then outstanding Loans and Letter of Credit Outstandings held by such Bank bears to the aggregate then outstanding Loans and Letter of Credit Outstandings) of amounts available to be applied pursuant to clauses "SECOND," "THIRD," "FOURTH," "FIFTH," and "SIXTH" above; and (c) to the extent that any amounts available for distribution pursuant to clause "FIFTH" above are attributable to the issued but undrawn amount of outstanding Letters of Credit, such amounts shall be held by the Administrative Agent in a cash collateral account and applied (x) first, to reimburse the Issuing Agent from time to time for any drawings under such remittance reportsLetters of Credit and (y) then, tax returns or following the expiration of all Letters of Credit, to all other filings. At Lender’s option, Lender shall either disburse funds directly to Borrower obligations of the types described in clauses "FIRST" through "SIXTH" above in the form of one or more checks made payable to the applicable Governmental Authorities manner provided in which case Borrower shall (or shall cause Master Tenant) to promptly file such remittance reports, tax returns or other filings and pay the applicable Hotel Occupancy Tax or Lender may cause such tax returns or other filings to be filed, together with payment of the applicable Hotel Occupancy Tax, directly with remittance reports, the applicable Governmental Authorities. If Lender elects to disburse Reserve Funds to Borrower for the payment of Hotel Occupancy Taxes, Borrower shall provide evidence of the payment of such Hotel Occupancy Taxes promptly after Borrower’s receipt of samethis Section 4.05.