Clearing Account. (a) During the term of the Loan, Borrower shall establish and maintain an Eligible Account (the “Clearing Account”) with Clearing Bank for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name of Borrower for the benefit of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account and such proceeds. Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt has been paid in full. (b) Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the Clearing Account within two (2) Business Days after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager. (c) Borrower shall obtain from Clearing Bank its agreement to transfer within seven (7) Business Days all amounts on deposit in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Account. (d) Upon the occurrence of an Event of Default or any Bankruptcy Action of Borrower or Manager, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in the Clearing Account to the payment of the Debt in any order in its discretion. (e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager or Clearing Bank. (f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto. (g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established. (h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 3 contracts
Samples: Commercial Loan Agreement (Red Oak Capital Fund IV, LLC), Commercial Loan Agreement (Red Oak Capital Fund IV, LLC), Commercial Loan Agreement (Red Oak Capital Fund IV, LLC)
Clearing Account. (a) During Upon the first occurrence of a Trigger Period, Borrower shall establish and, thereafter during the term of the Loan, Borrower shall establish and maintain an Eligible Account account (the “Clearing Account”) with a local bank selected by Borrower and approved by Lender (which approval shall not be unreasonably withheld or delayed) (the “Clearing Bank Bank”) in trust for the benefit of Lender in accordance with an agreement among Borrower, Lender, which Manager and the Clearing Bank in form and substance reasonably acceptable to Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time (the “Clearing Account Agreement”). The Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name of Borrower for the benefit of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account and such proceeds. Lender and Servicer its servicer shall have the sole right to make withdrawals from the Clearing Account. All costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt has been paid in fullXxxxxxxx.
(b) During the occurrence and continuance of a Trigger Period, Borrower shall cause all Rents and Profits to be delivered directly to the Clearing Account. Upon the first occurrence of a Trigger Period and in accordance with the Clearing Account Agreement, Borrower shall, or shall cause Manager to, deliver written instructions (which instructions can be revoked only upon the termination of the Trigger Period) to all tenants under Leases to deliver all Rents and Profits payable thereunder directly to the Clearing Account. Notwithstanding anything to the contrary contained herein or in any other Loan Documents, in the event Borrower or Manager shall receive any amounts constituting Rents and Profits during the occurrence and continuance of a Trigger Period, Borrower shall, and shall cause Manager to, deposit all such amounts received by Borrower or Manager constituting Rents the property manager into the Clearing Account within two one (21) Business Days Day after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.156506983
(c) Borrower shall obtain from Clearing Bank its agreement to transfer within seven (7) Business Days transfer, from and after such time as the Clearing Bank has received a Cash Management Activation Notice and until such time as the Clearing Bank has received a Cash Management Deactivation Notice, all amounts on deposit in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management AccountAccount in immediately available funds by federal wire transfer once every Business Day.
(d) Upon the occurrence and during the continuation of an Event of Default or any Bankruptcy Action of Borrower or ManagerDefault, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums amounts then present on deposit in the Clearing Account to the payment of the Debt Obligations in any order order, proportion and priority as Lender may determine in its sole and absolute discretion.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager Borrower or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) Losses arising from or in any way connected with the Clearing Account or and/or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 2 contracts
Samples: Loan Agreement (Wheeler Real Estate Investment Trust, Inc.), Loan Agreement (Wheeler Real Estate Investment Trust, Inc.)
Clearing Account. (a) During the term of the LoanUpon Completion, Borrower shall establish and maintain an Eligible Account (the “Clearing Account”) with Clearing Bank for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name of Borrower for the benefit of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account and such proceeds. Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt has been paid in full.
(b) Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the Clearing Account within two (2) Business Days after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower and Lender shall obtain from jointly instruct Clearing Bank its agreement to transfer within seven (7) on every Business Days Day all amounts on deposit in the Clearing Account to one or more accounts held by Borrower and at the direction of Borrower Borrower, unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Account. Notwithstanding the provisions of this paragraph, Lender shall collect the Monthly Debt Service Payment Amount from the Clearing Bank on each Payment Date.
(d) Upon the occurrence of an Event of Default or any Bankruptcy Action of Borrower or ManagerManager beyond any applicable cure period, Lender may, in addition to any and all other rights and remedies available to Lender, apply declare that a Cash Sweep Period is in effect, and instruct Clearing Bank to transfer any sums then present in the Clearing Account to the payment of the Debt in any order in its discretionCash Management Account.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 2 contracts
Samples: Commercial Loan Agreement (Red Oak Capital Fund V, LLC), Commercial Loan Agreement (Red Oak Capital Fund V, LLC)
Clearing Account. (a) During the term of the Loan, Borrower shall establish and maintain an Eligible Account account (the “Clearing Account”) with Clearing Bank in trust for the benefit of Lender, which Lender in accordance with the Clearing Account Agreement. The Clearing Account shall be under the sole dominion and control Control of Lender. The Clearing Account shall be entitled in the name of Borrower for the benefit of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account and such proceeds. Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account, subject to the terms set forth herein and in the other Loan Documents permitting disbursements from the same. All costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt has been paid in full.
(b) Borrower shall cause all Rents to be delivered directly to the Clearing Account. In accordance with the Clearing Account Agreement, Borrower shall, or, if applicable, shall cause Manager to, deliver irrevocable written instructions to all tenants under Leases to deliver all Rents payable thereunder directly to the Clearing Account. Notwithstanding anything to the contrary contained herein or in any other Loan Documents, in the event Borrower or Manager (if any) shall receive any amounts constituting Rents, Borrower shall, and shall cause Manager (if any) to, deposit all such amounts received by Borrower or Manager constituting Rents into the Clearing Account within two (2) Business Days Day after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower shall obtain from Clearing Bank its agreement to transfer within seven (7) Business Days transfer, from and after such time as Clearing Bank has received a Cash Management Activation Notice and until such time as Clearing Bank has received a Cash Management De-Activation Notice, all amounts on deposit in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management AccountAccount in immediately available funds by federal wire transfer once every Business Day.
(d) Upon the occurrence and during the continuation of an Event of Default or any Bankruptcy Action of Borrower or ManagerDefault, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums amounts then present on deposit in the Clearing Account to the payment of the Debt in any order order, proportion and priority as Lender may determine in its sole and absolute discretion.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager Borrower or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and reasonable costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or and/or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 2 contracts
Samples: Loan Agreement (Ionis Pharmaceuticals Inc), Loan Agreement (Ionis Pharmaceuticals Inc)
Clearing Account. (a) During the term of the Loan, Borrower shall establish (in accordance with clause (i) below) and maintain an Eligible Account (the “Clearing Account”) with Clearing Bank for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name of Borrower for the benefit of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds deposits at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account Account, including filing UCC-1 Financing Statements and such proceedscontinuations thereof. Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds monies now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt Loan has been paid repaid or defeased in full.
(b) Borrower shall (i) within one (1) Business Day after the opening of the Clearing Account with respect to the Comenity Lease in existence on the date hereof and (ii) simultaneously with the execution of any Lease entered into after the date hereof, deliver a written notice substantially in the form attached hereto as Schedule IV to all Tenants to deliver all Rents payable under their respective Leases directly to the Clearing Account (a “Tenant Direction Letter”). Without the prior written consent of Lender, neither Borrower nor any Manager shall (i) terminate, amend, revoke or modify any Tenant Direction Letter in any manner or (ii) direct or cause any Tenant to pay any amount in any manner other than as provided in the Tenant Direction Letter. Borrower shall, and shall cause any Manager to, deposit all amounts received by Borrower or such Manager constituting Rents into the Clearing Account within two (2) Business Days after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower shall obtain from During any Cash Management Period, the Clearing Bank its agreement shall transfer to the Cash Management Account in immediately available funds by Federal wire transfer within seven (7) Business Days all amounts on deposit in the Clearing Account at the direction of Borrower unless once every Business Day. If a Cash Sweep Management Period is in effecthas not occurred or ceases to exist, in which case such funds the Clearing Bank shall be transferred transfer to the Cash Management AccountBorrower’s Account in immediately available funds by federal wire transfer all amounts in the Clearing Account once every Business Day.
(d) Upon the occurrence of an Event of Default or any Bankruptcy Action of Borrower or ManagerBorrower, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in the Clearing Account to the payment of the Debt in any order in its discretion.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager any Affiliate of Borrower or Clearing Bank, except as provided in clause (xvi) of the definition of “Special Purpose Entity”.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any new Tenant Direction Notices and the other notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
(i) Borrower shall (i) cause the Clearing Account to be opened at PNC Bank, N.A., (ii) cause PNC Bank, N.A. to execute and deliver to Lender its counterpart signature page to the Clearing Account Agreement in the form approved by Lender prior to the Closing Date, in its capacity as the Clearing Bank thereunder and (iii) cause PNC Bank, N.A. to execute and deliver to Lender its counterpart signature page to the Cash Management Agreement in the form approved by Lender prior to the Closing Date, in its capacity as Agent thereunder, in each case, within five (5) days after the Closing Date (as such period may be extended in Lender’s reasonable discretion for an additional five (5) days, in the event that the foregoing covenants cannot reasonably be satisfied within such initial five (5) day period, provided that such failure is not due to any act or omission of Borrower or any Affiliate thereof). Borrower’s failure to comply with this Section 2.7.1(i) shall, at Lender’s election in its sole discretion, constitute an Event of Default hereunder.
Appears in 2 contracts
Samples: Loan Agreement (Rodin Global Property Trust, Inc.), Loan Agreement (Rodin Global Property Trust, Inc.)
Clearing Account. (a) During Upon the term occurrence of any Cash Sweep Event and thereafter for the duration of the Loanrelated Cash Sweep Period, Borrower shall establish and maintain an Eligible Account (the “Clearing Account”) with Clearing Bank for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name of Borrower for the benefit of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds deposits at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account Account, including filing UCC-1 Financing Statements and such proceedscontinuations thereof. Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds monies now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and and, after its establishment, the Clearing Account Account, shall remain in effect until the Debt Loan has been paid repaid or defeased in full.
(b) Upon the occurrence and during the continuance of a Cash Sweep Period, Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the Clearing Account within two (2) Business Days after receipt thereofon a weekly basis. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and Lender. For the avoidance of doubt, Borrower shall not be commingled with obligated to, nor shall it be obligated to cause Property Manager to, deposit any other funds or property of Borrower or ManagerTenant Program Revenue into the Clearing Account.
(c) Borrower shall obtain from Clearing Bank its agreement to transfer, on each Business Day following the establishment of the Clearing Account in accordance with the terms hereof, in immediately available funds by federal wire transfer within seven (7) Business Days all amounts on deposit in the Clearing Account at the direction of Borrower unless once every Business Day during a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Account, and, upon a Cash Sweep Event Cure, Lender shall direct that any balance in the Clearing Account and/or the Cash Management Account be promptly disbursed to Borrower.
(d) Upon the occurrence of an Event of Default or any Bankruptcy Action of Borrower or Manager, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in the Clearing Account (excepting any Tenant Program Revenue) to the payment of the Debt in any order in its discretion.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 2.7.1(h) in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 1 contract
Clearing Account. (a) During Borrower shall establish and maintain the Clearing Account with the Clearing Bank on or prior to the Closing Date, and thereafter Borrower shall maintain the Clearing Account at all times during the remainder of the term of the Loan, Borrower shall establish and maintain an Eligible Account (the “Clearing Account”) with Clearing Bank for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name “Acadia Atlantic Avenue LLC, as Borrower and Bear Sxxxxxx Commercial Mortgage, Inc., as Lender, pursuant to Loan Agreement dated as of Borrower for the benefit of LenderDecember 26, 2007 — Clearing Account”. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds deposits at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in thereof. All monies now or hereafter deposited into the Clearing Account shall be deemed additional security for the Debt.
(b) Borrower shall obtain from the Clearing Bank and such proceeds. deliver to Lender an agreement, in form and Servicer substance satisfactory to Lender (the “Clearing Account Agreement”), pursuant to which: (i) Borrower and Clearing Bank acknowledge and agree that during a Cash Trap Period, Lender shall have the sole right to make withdrawals from the Clearing Account. All Account and all costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All ; (ii) upon notice from Lender that a Cash Trap Period exists, the Clearing Bank agrees to transfer to the Cash Management Account in immediately available funds now by federal wire transfer all amounts on deposit in the Clearing Account once every Business Day during the term of the Loan.
(c) Borrower shall (i) deliver irrevocable written instructions to all tenants under Leases to deliver all Rents (including additional rent, payable thereunder directly to the Clearing Account, and (ii) deliver irrevocable written instructions to each of the credit card companies or hereafter deposited credit card clearing banks with which Borrower or Manager has entered into or credited merchant’s agreements to deliver all receipts payable with respect to the Property directly to the Clearing Account (collectively, the “Payment Direction Letters.”). Borrower and Manager shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt has been paid in full.
(b) Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the Clearing Account within two one (21) Business Days Day after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower shall obtain from Clearing Bank its agreement to transfer within seven (7) Business Days all amounts on deposit in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Account.
(d) Upon the occurrence of an Event of Default or any Bankruptcy Action of Borrower or ManagerDefault, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in the Clearing Account to the payment of the Debt in any order in its sole discretion.
(e) The Clearing Account shall be an Eligible Account and shall not be commingled with other monies held by Borrower, Manager Borrower or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ attorneys fees and expenses) arising from or in any way connected with the Clearing Account or and/or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 1 contract
Clearing Account. (a) During the term of the Loan, Borrower shall establish and maintain an Eligible Account (the “Clearing Account”) with Clearing Bank for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name of Borrower for the benefit of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds deposits at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account Account, including filing UCC-1 Financing Statements and such proceedscontinuations thereof. Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds monies now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt Loan has been paid repaid or defeased in full.
(b) Borrower shall, or shall cause Manager to, (i) on or prior to the Closing Date with respect to Leases in existence on the date hereof and (ii) simultaneously with the execution of any Lease entered into after the date hereof, deliver Tenant Direction Letters to all Tenants to deliver all Rents payable under their respective Leases directly to the Clearing Account. Without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed, neither Borrower nor Manager shall (i) terminate, amend, revoke or modify any Tenant Direction Letter in any manner or (ii) direct or cause any Tenant to pay any amount in any manner other than as provided in the Tenant Direction Letter. Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the Clearing Account within two one (21) Business Days Day after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower shall obtain from Clearing Bank its agreement to transfer within seven (7) on each Business Days Day all amounts on deposit in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Account.
(d) Upon the occurrence of an Event of Default or any Bankruptcy Action of Borrower or Manager, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in the Clearing Account to the payment of the Debt in any order in its discretion.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and reasonable costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any new Tenant Direction Notices and the other notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 1 contract
Samples: Loan Agreement (Wheeler Real Estate Investment Trust, Inc.)
Clearing Account. (a) During the term of the Loan, Borrower shall establish and maintain an a segregated Eligible Account (the “Clearing Account”) with the Clearing Bank in trust for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name of Borrower “INLAND DIVERSIFIED LAS VEGAS EASTERN BELTWAY, L.L.C., as pledgor, for the benefit of LenderCantor Commercial Real Estate Lending, L.P., as Secured Party — Clearing Account,” or such other name as required by Lender from time to time. Borrower (i) hereby grants to Lender a first-first priority security interest in the Clearing Account and all funds deposits at any time credited thereto or contained therein and the proceeds thereof thereof, and shall (ii) will take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account, including, without limitation, the execution of any account control agreement required by Lender. Borrower will not in any way alter, modify or close the Clearing Account and such proceedswill notify Lender of the account number thereof. Except as may be expressly permitted in the Clearing Account Agreement, Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All Account and all costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds monies now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the Debt.
(b) Within five (5) Business Days of the Closing Date, Borrower shall, or shall cause Manager to, deliver Payment Direction Letters to all Tenants under Leases directing such Tenants to deliver all Rents payable thereunder directly to the Clearing Account and Borrower shall, or shall cause Manager to, direct all Tenants under Leases entered into after the Closing Date to deliver all Rents payable under such new Lease directly to the Clearing Account. Borrower shall, and shall cause Manager to, deposit into the Clearing Account within one (1) Business Day after receipt all amounts received by Borrower or Manager constituting Rents. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt Loan has been paid repaid in full.
(bc) Borrower shallSo long as no Cash Management Period and no Event of Default shall have occurred and be continuing, and shall cause Manager to, amounts on deposit all amounts received by Borrower or Manager constituting Rents into in the Clearing Account within two (2) Business Days after receipt thereof. Until so deposited, all Rents received shall be transferred to an account designated by Borrower or Manager shall be held in trust for accordance with the benefit terms of Lender and shall not be commingled with the Clearing Account Agreement. During any other funds or property of Borrower or Manager.
(c) Cash Management Period, Borrower shall obtain from cause the Clearing Bank its agreement to transfer within seven (7) Business Days to the Cash Management Account in immediately available funds by Federal wire transfer all amounts on deposit in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Accountonce every Business Day.
(d) Upon the occurrence of an Event of Default or any Bankruptcy Action of Borrower or ManagerDefault, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present direct Clearing Bank to immediately pay over all funds on deposit in the Clearing Account to Lender and to apply any such funds to the payment of the Debt in any order in its sole discretion.
(e) The Funds deposited into the Clearing Account shall not be commingled with other monies held by Borrower, Manager or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statementsfinancing statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and Clearing Bank and hold Lender and Clearing Bank harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ attorneys fees and expenses) arising from or in any way connected with the Clearing Account or Account, the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
established (h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) unless arising from the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank gross negligence or termination willful misconduct of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of DefaultClearing Bank, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lenderas applicable), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 1 contract
Samples: Loan Agreement (Inland Diversified Real Estate Trust, Inc.)
Clearing Account. (a) During the term of the Loan, Borrower Grantor shall establish and maintain an Eligible Account a segregated account (the “Clearing Account”) with LaSalle Bank National Association (“Clearing Bank Bank”), in trust for the benefit of LenderBeneficiary, which Clearing Account shall shall, during a “Cash Management Period” (as defined in the Cash Management Agreement [as defined below]), be under the sole dominion and control of LenderBeneficiary. The Clearing Account shall be entitled in the name “NNN Lenox Medical, LLC, as Borrower and LaSalle Bank National Association, as Lender, pursuant to Deed of Borrower for the benefit Trust, Security Agreement and Fixture Filing dated as of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account and such proceeds. Lender and Servicer shall have the sole right to make withdrawals from the January 2, 2007 – Clearing Account”. All costs and expenses for establishing and maintaining the The Clearing Account shall be paid an “Eligible Account” (as defined in the Cash Management Agreement) and shall not be commingled with other monies held by BorrowerGrantor or Clearing Bank. All funds monies now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the DebtIndebtedness. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt has been paid in full.
(b) Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the Clearing Account within two (2) Business Days after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower shall obtain from Clearing Bank its agreement Grantor hereby grants to transfer within seven (7) Business Days all amounts on deposit Beneficiary a first priority security interest in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Account.
(d) Upon the occurrence of an Event of Default or any Bankruptcy Action of Borrower or Manager, Lender may, in addition to any and all other rights deposits at any time contained therein and remedies available the proceeds thereof and will take all actions necessary to Lender, apply any sums then present maintain in favor of Beneficiary a perfected first priority security interest in the Clearing Account Account. In addition, Grantor hereby authorizes Beneficiary to the payment of the Debt in any order in its discretion.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager or Clearing Bank.
(f) Borrower prepare and file UCC Financing Statements and continuations thereof. Grantor shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 UCC Financing Statements, except those naming Lender Beneficiary as the secured party, to be filed with respect thereto.
. Grantor shall, or shall cause the Property Manager to, deliver irrevocable written instructions to all tenants under Leases to deliver all Rents payable thereunder directly to the Clearing Account. Grantor shall, and shall cause Manager to, deposit all amounts received by Grantor or Manager constituting Rents into the Clearing Account within one (g1) Borrower Business Day after receipt thereof. During a Cash Management Period, Beneficiary and/or any servicer shall indemnify Lender have the sole right to make withdrawals from the Clearing Account and all costs and expenses for establishing and maintaining the Clearing Account shall be paid by Grantor. In addition, Grantor shall obtain from Clearing Bank its agreement during a Cash Management Period to transfer to the Cash Management Account (defined below) in immediately available funds by federal wire transfer all amounts on deposit in the Clearing Account once every Business Day. Upon the occurrence of an Event of Default, Beneficiary may, in addition to any and all other rights and remedies available to Beneficiary, apply any sums then present in the Clearing Account to the payment of the Indebtedness in such order and priority as Beneficiary shall determine. Grantor shall indemnify, defend and hold Lender Beneficiary harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ attorneys fees and expenses) arising from or in any way connected with the Clearing Account or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of LenderBeneficiary) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 1 contract
Clearing Account. (a) During the term of the Loan, Borrower shall establish and maintain an Eligible Account account (the “Clearing Account”) with Clearing Bank in trust for the benefit of Lender, which Lender in accordance with the Clearing Account Agreement. The Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name of Borrower for the benefit of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account and such proceeds. Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt has been paid in full.
(b) Borrower shall cause all Rents to be delivered directly to the Clearing Account. On or before the date hereof, Borrower shall, or shall cause Manager to, deliver irrevocable written instructions in the form attached hereto as Exhibit C (the “Tenant Direction Letter”) to all tenants under Leases to deliver all Rents payable thereunder directly to the Clearing Account or to the Clearing Account Address. Notwithstanding anything to the contrary contained herein, in the event Borrower or Manager shall receive any amounts constituting Rents, Borrower shall, and shall cause Manager to, deposit all such amounts received by Borrower or Manager constituting Rents into the Clearing Account within two (2) Business Days Day after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower shall obtain from Clearing Bank its agreement to transfer within seven (7) Business Days transfer, from and after such time as Clearing Bank has received a Cash Management Activation Notice and until such time as Clearing Bank has received a Cash Management De-Activation Notice, all amounts on deposit in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management AccountAccount in immediately available funds by federal wire transfer once every Business Day. Upon the occurrence of a Cash Management Trigger Event Cure and within five (5) days of receipt of Borrower’s notice thereof, so long as no other Cash Management Trigger Event shall then exist, Lender shall send a Cash Management De-Activation Notice to Clearing Bank.
(d) Upon the occurrence and during the continuation of an Event of Default or any Bankruptcy Action of Borrower or ManagerDefault, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums amounts then present on deposit in the Clearing Account to the payment of the Debt in any order order, proportion and priority as Lender may determine in its sole and absolute discretion.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager Borrower or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or and/or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing , except to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation extent caused by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete gross negligence or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revokedwillful misconduct.
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital - Retail Centers of America, Inc.)
Clearing Account. (a) During the term of the Loan, Borrower shall establish and maintain an Eligible Account (the “Clearing Account”) with Clearing Bank for the benefit of Lender, which The Clearing Account shall will be under the sole dominion and control of Lendertitled as follows: [BORROWER’S NAME] CLEARING ACCOUNT, AS MORTGAGOR, FOR THE BENEFIT OF [LENDER’S NAME], AS MORTGAGEE. The Clearing Account shall will be entitled in the name of Borrower for the benefit of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account and such proceeds. Lender and Servicer shall have the sole right to make withdrawals from the Clearing maintained as an Eligible Account. All costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt has been paid in full.
(b) The Clearing Account will be assigned the Borrower shall, and shall cause Manager to, deposit all amounts Federal Tax ID Number.
(c) Any Receipt from the Property received by Borrower or Manager constituting Rents into (i) will be deemed to be collateral for the Clearing Account within two (2) Business Days after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall Loan and will be held in trust for the benefit benefit, and as the property, of Lender Lender, and shall (ii) will not be commingled with any other funds or property of Borrower or Manager.
(cd) Borrower shall obtain from Clearing Bank its agreement to transfer within seven (7) Business Days and/or Manager will deposit all amounts on deposit in Receipts into the Clearing Account at the direction within one Business Day of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Account.
(d) Upon the occurrence of an Event of Default or any Bankruptcy Action of Borrower or Manager, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in the Clearing Account to the payment of the Debt in any order in its discretionreceipt.
(e) The In each month during the term of the Loan, beginning on the first Business Day after there are Available Funds in the Clearing Account shall not be commingled with other monies held by Borrower, Manager or Account,Clearing BankBank will make a Daily Borrower Sweep of all Available Funds until Clearing Bank receives a Notice of Commencement of Lender Sweep Period.
(f) Borrower shall not further pledgeNotwithstanding anything contained in Section 3(e) to the contrary, assign from and after the date on which Clearing Bank receives a Notice of Commencement of Lender Sweep Period, Clearing Bank will disburse all Available Funds on each Business Day to the Deposit Account designated in writing by Lender or grant any security interest in the Designee until such time as Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Bank has received a Notice of Termination of Lender as the secured party, to be filed with respect theretoSweep Period.
(g) Borrower shall indemnify Lender Simultaneously with any transfer to the Deposit Account, Clearing Bank will send (or make available via electronic information reporting system) to Manager, Lender, Designee and hold Lender harmless from and against any and all actionsBorrower, suitsvia telecopy, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from a wire transfer or in any way connected with ACH System advice setting forth the Clearing Account or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was establishedamount transferred.
(h) Upon Lender’s request, Borrower will provide a written statement to Lender itemizing any amounts deposited in the Clearing Account by Borrower or Manager for the period covered by Lender’s request and such supporting documentation as Lender may reasonably require.
(i) Clearing Bank ceasing to be an Eligible InstitutionBorrower represents and warrants that there are no other accounts maintained by Borrower, (ii) Manager, or any other Person into which revenues from the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination ownership and operation of the Clearing Account Agreement by Clearing Bank Property are deposited. So long as the Note is outstanding, Borrower, Manager, or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) any other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to Person will not open a new Clearing Account (which any other such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially for the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Accountdeposit of Receipts. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall Borrower’s operating account will not be deemed to be a power coupled with an interest and cannot be revokedaccount into which Receipts are deposited.
Appears in 1 contract
Samples: Cash Management Agreement
Clearing Account. A. Borrower represents that (ai) During the term of the Loan, Borrower shall establish it has opened and maintain an Eligible Account (the “Clearing Account”) with Clearing Bank maintains in good standing in its own name for the benefit of Lender, which the Clearing Account shall be with , under the sole dominion and control of LenderBorrower’s taxpayer identification No. The Clearing Account shall be entitled in the name of Borrower for the benefit of Lender. Borrower hereby grants to Lender a first-priority security interest , as set forth in the Clearing Account Agreement, and all funds at (ii) such account is an Eligible Account and is insured by the FDIC for the full amount of the currently applicable limits of FDIC insurance. The Clearing Account, and any time credited thereto or contained therein and account(s) replacing the proceeds thereof and shall take all actions necessary to maintain same in favor of Lender a perfected first priority security interest in accordance with the Clearing Account Agreement, shall be referred to as the “Clearing Account,” the depository institution in which any Clearing Account hereunder is maintained shall be referred to as a “Clearing Account Bank” and such proceeds. Lender the agreement governing the Clearing Account, and Servicer any agreement replacing the same in accordance with the existing Clearing Account Agreement with Bank of America, N.A., shall have be referred to as the sole right “Clearing Account Agreement.”
B. Subject to make withdrawals from the terms of the Clearing Account Agreement, Borrower at all times shall maintain the Clearing Account open and in good standing and as an Eligible Account, and shall not, without the prior written consent of Lender, close the Clearing Account or change the account or location of the Clearing Account. All costs and expenses for establishing and maintaining In addition, subject to the terms of the Clearing Account shall be paid by Borrower. All funds now or hereafter deposited into or credited to Agreement, if at any time Lender in its reasonable discretion is not satisfied with the Clearing Account Bank, then upon written demand Borrower shall be deemed additional security for reasonably cooperate with Lender to change the Debt. The Clearing Account Agreement Bank to a different bank which is selected by Borrower and Clearing Account reasonably satisfactory to Lender. In either case, Borrower (and Manager, if requested by Lender) shall remain in effect until the Debt has been paid in full.
(b) Borrower shallexecute and deliver, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the new Clearing Account within two (2) Business Days after receipt thereof. Until so depositedBank to execute and deliver a Clearing Account Agreement, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower shall obtain cooperate with Lender in causing the transfer of all funds from Clearing Bank its agreement to transfer within seven (7) Business Days all amounts on deposit in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred old bank to the Cash Management corresponding accounts at the replacement bank. Borrower shall deliver to Lender on demand copies of all statements, agreements, and other books and records pertaining to the Clearing Account.
(d) Upon the occurrence of an Event of Default or any Bankruptcy Action of , and Borrower or Manager, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in does hereby irrevocably authorize the Clearing Account Bank to the payment deliver copies of the Debt in any order in its discretionsame directly to Lender.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 1 contract
Samples: Deed of Trust, Security Agreement and Fixture Filing (Kilroy Realty, L.P.)
Clearing Account. (a) During the term Borrower shall cause all Rents to be transmitted directly by or on behalf of the Loan, Borrower shall establish and maintain an Eligible Account (the “Clearing Account”) with Clearing Bank for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name of Borrower for the benefit of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account and such proceeds. Lender and Servicer shall have the sole right to make withdrawals from Tenants into the Clearing Account. All costs and expenses for establishing and maintaining Without in any way limiting the Clearing Account foregoing, Borrower (or the Property Manager) shall be paid by Borrower. All funds now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt has been paid in full.
(b) Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the Clearing Account within two five (25) Business Days after receipt thereofof receipt. Until so depositedBorrower grants to Lender a security interest in all rights of Borrower, if any, in and to the Clearing Account as additional security for the Indebtedness. So long as there is no Event of Default or Cash Flow Sweep Period continuing, the funds in the Clearing Account may be swept on a daily, weekly or monthly basis (as determined by Borrower) to the Borrower Operating Account. During an Event of Default Period and/or during a Cash Flow Sweep Period, all Rents received by Borrower funds then deposited into the Clearing Account Lender may sweep all funds then or Manager shall be held thereafter deposited into the Clearing Account to a Lender controlled account. No funds in trust for the benefit of Lender and shall not Clearing Account may be commingled with any other funds of the Property Manager or property of Borrower any Affiliate of the Property Manager or Manager.
(c) Borrower shall obtain from Borrower. Any funds available and on deposit with Clearing Bank its agreement to transfer within seven (7) Business Days all amounts on deposit in as of the Clearing Account at the direction commencement of Borrower unless a Cash Flow Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Account.
(d) Upon but not as of the occurrence of an Event of Default or Default) shall not be swept into the Cash Collateral Account but shall be deposited into the Borrower Operating Account for payment of Operating Expenses and other costs incurred by Borrower in the ordinary course of business. Borrower shall not close the Clearing Account without obtaining the prior consent of Lender. Borrower shall not open any Bankruptcy Action of Borrower or Manager, Lender may, in addition to any and all other rights and remedies available new Clearing Account (i) without at least 30 days prior notice to Lender, apply any sums then present in (ii) unless the bank or other financial institution at which such accounts are opened and maintained are acceptable to Lender and (iii) unless, prior to the opening of such new Clearing Account, Borrower delivers to Lender a replacement Clearing Account agreement with respect thereto in a form reasonably acceptable to the payment of the Debt in any order in its discretion.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Lender, the Property Manager or and the replacement Clearing Bank.
(fb) Borrower Concurrently herewith, Borrower, Lender and Clearing Bank shall not further pledge, assign or grant any security interest in execute a Clearing Account Agreement establishing the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revokedprovisions herein.
Appears in 1 contract
Samples: Loan Agreement (ParagonCoin, LTD)
Clearing Account. (a) During the term of the Loan, Borrower Grantor shall establish and maintain an Eligible Account a segregated account (the “Clearing Account”) with Bank of the West (“Clearing Bank Bank”), in trust for the benefit of LenderBeneficiary, which Clearing Account shall be under the sole dominion and control of LenderBeneficiary. The Clearing Account shall be entitled in the name “Xxxxxxx Macquarie - Cerritos I, LLC, as Grantor and LaSalle Bank National Association, as Beneficiary, pursuant to Leasehold Deed of Borrower for the benefit Trust, Security Agreement and Fixture Filing dated as of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account and such proceeds. Lender and Servicer shall have the sole right to make withdrawals from the January __, 2006 - Clearing Account”. All costs and expenses for establishing and maintaining the The Clearing Account shall be paid an “Eligible Account” (as defined in the Cash Management Agreement) and shall not be commingled with other monies held by BorrowerGrantor or Clearing Bank. All funds monies now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the DebtIndebtedness. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt has been paid in full.
(b) Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the Clearing Account within two (2) Business Days after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower shall obtain from Clearing Bank its agreement Grantor hereby grants to transfer within seven (7) Business Days all amounts on deposit Beneficiary a first priority security interest in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Account.
(d) Upon the occurrence of an Event of Default or any Bankruptcy Action of Borrower or Manager, Lender may, in addition to any and all other rights deposits at any time contained therein and remedies available the proceeds thereof and will take all actions necessary to Lender, apply any sums then present maintain in favor of Beneficiary a perfected first priority security interest in the Clearing Account Account. In addition, Grantor hereby authorizes Beneficiary to the payment of the Debt in any order in its discretion.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager or Clearing Bank.
(f) Borrower prepare and file UCC Financing Statements and continuations thereof. Grantor shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 UCC Financing Statements, except those naming Lender Beneficiary as the secured party, to be filed with respect thereto.
. Grantor shall, or shall cause the property manager (g“Manager”), if any, to, deliver irrevocable written instructions to all tenants under Leases to deliver all Rents payable thereunder directly to the Clearing Account. Grantor shall, and shall cause Manager, if any, to, deposit all amounts received by Grantor or Manager constituting Rents into the Clearing Account within one (1) Borrower Business Day after receipt thereof. Beneficiary and/or any servicer shall indemnify Lender have the sole right to make withdrawals from the Clearing Account and all costs and expenses for establishing and maintaining the Clearing Account shall be paid by Grantor. In addition, Grantor shall obtain from Clearing Bank its agreement to transfer to the Cash Management Account (defined below) in immediately available funds by federal wire transfer all amounts on deposit in the Clearing Account once every Business Day. Upon the occurrence and during the continuance of an Event of Default, Beneficiary may, in addition to any and all other rights and remedies available to Beneficiary, apply any sums then present in the Clearing Account to the payment of the Indebtedness in such order and priority as Beneficiary shall determine. Grantor shall indemnify, defend and hold Lender Beneficiary harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ attorneys fees and expenses) arising from or in any way connected with the Clearing Account or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of LenderBeneficiary) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 1 contract
Samples: Leasehold Deed of Trust, Security Agreement and Fixture Filing (Maguire Properties Inc)
Clearing Account. (a) During Borrower shall deposit, or cause to be deposited by Hotel Manager, all Rents into the term Clearing Account. Borrowers or Hotel Manager shall instruct and shall continuously hereafter instruct each of the LoanCredit Card Companies that all credit card receipts with respect to the Property (net of any expenses charged for such processing) received by such Credit Card Companies shall be transferred by such Credit Card Companies by wire transfer or the ACH system to the Clearing Account. Borrower shall cause all other Rents to be transmitted directly into the Clearing Account. Without in any way limiting the foregoing, Borrower (or the Hotel Manager) shall establish deposit all Rents and maintain an Eligible other cash transactions into the Clearing Account (not less than twice on w weekly basis. Borrower grants to Agent a security interest in all rights of Borrower, if any, in and to the “Clearing Account”) with Clearing Bank Account as additional security for the benefit Indebtedness. So long as there is no Event of LenderDefault or Cash Flow Sweep Period continuing, which the funds in the Clearing Account shall may be under swept on a daily, weekly or monthly basis (as determined by Borrower) to the sole dominion and control Borrower Operating Account. During an Event of Lender. The Default Period and/or during a Cash Flow Sweep Period, all funds then deposited into the Clearing Account shall or thereafter deposited into the Clearing Account may be entitled swept by Agent to an Agent controlled account in the name of Borrower for the benefit of LenderBorrower. Borrower hereby grants to Lender a first-priority security interest No funds in the Clearing Account and all funds at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account and such proceeds. Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt has been paid in full.
(b) Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the Clearing Account within two (2) Business Days after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not may be commingled with any other funds of the Hotel Manager or property of Borrower any Affiliate of the Hotel Manager or Manager.
(c) Borrower shall obtain from Borrower. Any funds available and on deposit with Clearing Bank its agreement to transfer within seven (7) Business Days all amounts on deposit in as of the Clearing Account at the direction commencement of Borrower unless a Cash Flow Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Account.
(d) Upon but not as of the occurrence of an Event of Default or any Bankruptcy Action Default) shall not be swept into the Cash Collateral Account but may be deposited into the Disbursements Account for payment of Operating Expenses and other costs incurred by Borrower or Manager, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in the ordinary course of business. Borrower shall not close the Clearing Account to without obtaining the payment prior consent of the Debt in any order in its discretion.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager or Clearing Bank.
(f) Agent. Borrower shall not further pledge, assign or grant open any security interest in the new Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing without at least 30 days prior notice to be an Eligible InstitutionAgent, (ii) unless the bank or other financial institution at which such accounts are opened and maintained are acceptable to Agent and (iii) unless, prior to the opening of such new Clearing Account, Borrower delivers to Agent a replacement Clearing Account agreement with respect thereto in a form reasonably acceptable to Borrower, Agent, the Hotel Manager and the replacement Clearing Bank. Notwithstanding the foregoing, Borrower shall be allowed to utilize a local bank to create an account to deposit cash transactions resulting from Hotel operations and for pxxxx cash transactions; provided that Borrower does not keep deposits in excess of $25,000.00 in such account.
(b) Concurrently herewith, Borrower, Agent and Clearing Bank shall execute a Clearing Account Agreement establishing the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revokedprovisions herein.
Appears in 1 contract
Clearing Account. (a) During the term of the Loan, Borrower shall establish and maintain an Eligible Account (the “Clearing Account”) with Clearing Bank for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name of Borrower for the benefit of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds deposits at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account Account, including filing UCC-1 Financing Statements and such proceedscontinuations thereof. Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds monies now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt Loan has been paid repaid or defeased in full.
(b) Borrower shall (i) on or prior to the Closing Date with respect to the Daimler Lease in existence on the date hereof and (ii) simultaneously with the execution of any Lease entered into after the date hereof, deliver a written notice substantially in the form attached hereto as Schedule IV to all Tenants to deliver all Rents payable under their respective Leases directly to the Clearing Account (a “Tenant Direction Letter”). Without the prior written consent of Lender, neither Borrower nor any Manager shall (i) terminate, amend, revoke or modify any Tenant Direction Letter in any manner or (ii) direct or cause any Tenant to pay any amount in any manner other than as provided in the Tenant Direction Letter. Borrower shall, and shall cause any Manager to, deposit all amounts received by Borrower or such Manager constituting Rents into the Clearing Account within two (2) Business Days after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower shall obtain from Pursuant to the terms of the Clearing Account Agreement, the Clearing Bank its agreement to shall transfer within seven (7) on each Business Days Day during the term of the Loan, all amounts on deposit in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management AccountAccount in immediately available funds by federal wire transfer once every Business Day.
(d) Upon the occurrence of an Event of Default or any Bankruptcy Action of Borrower or ManagerBorrower, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in the Clearing Account to the payment of the Debt in any order in its discretion.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager any Affiliate of Borrower or Clearing Bank, except as provided in clause (xvi) of the definition of “Special Purpose Entity”.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any new Tenant Direction Notices and the other notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 1 contract
Clearing Account. (a) During the term of the Loan, Borrower shall establish and maintain an Eligible Account (the “Clearing Account”) with Clearing Bank for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Subject to Section 2.5.2(e), the Clearing Account shall be entitled in the name of Borrower ARC AMWCHKS001, LLC Et. Al. for the benefit of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds deposits at any time credited thereto or contained therein and the proceeds thereof and shall take all actions reasonably necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account Account, including (at Lxxxxx’s request) filing UCC-1 Financing Statements and such proceedscontinuations thereof. Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All actual, reasonable costs and expenses for establishing and maintaining the Clearing Account shall be paid by BorrowerBxxxxxxx. All funds now or hereafter deposited into or credited to monies on deposit in the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt Loan has been paid repaid in full.
(b) Borrower shall, or shall cause Manager to, (i) within ten (10) days of the Closing Date with respect to Leases in existence on the date hereof and (ii) simultaneously with the execution of any Lease entered into after the date hereof, deliver Tenant Direction Letters to all Tenants, directing such Tenants to deliver all Rents payable under their respective Leases directly to the Clearing Account. Without the prior written consent of Lxxxxx (except in connection with the delivery to Tenants of a Released Property following satisfaction of the conditions set forth in Section 2.5.2 with respect to such Released Property), neither Borrower nor Manager shall (i) terminate, amend, revoke or modify any Tenant Direction Letter in any manner or (ii) direct or cause any Tenant to pay any amount in any manner other than as provided in the Tenant Direction Letter. Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the Clearing Account within two one (21) Business Days Day after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager. Notwithstanding the foregoing terms of this Section 2.6.1 or anything to the contrary in the other Loan Documents (including the Cash Management Agreement), and without limiting Borrower’s obligation to cause all amounts received by Borrower or Manager constituting Rents to be deposited into the Clearing Account within one (1) Business Day after receipt thereof, Borrower shall not be required to send Tenant Direction Letters to the Tenants that use VersaPay to pay their Rent, provided that Borrower shall (using VersaPay) direct all such Rent to the Clearing Account.
(c) Borrower The Clearing Account Agreement shall obtain from provide that Clearing Bank its agreement to shall transfer within seven (7) on each Business Days Day all amounts on deposit in the Clearing Account at the direction of Borrower (including a transfer to Borrower) unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Account.
(d) Upon During the occurrence continuance of an Event of Default or any Bankruptcy Action of Borrower or ManagerBorrower, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in the Clearing Account to the payment of the Debt in any order in its discretion. Upon cessation (or waiver) of such Event of Default or Bankruptcy Action, all such funds (to the extent same have not been applied to the Debt) shall be returned to the Clearing Account.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, and demands, and actual out-of-pocket liabilities, losses, damages (excluding, consequential, punitive, special, exemplary and indirect damages, except to the extent such damages are actually paid or payable to a third-party), obligations and reasonable, actual costs and expenses (including litigation costs and reasonable out-of-pocket attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or the Clearing Account Agreement (unless arising from the gross negligence negligence, fraud or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established).
(h) Upon (i) Clearing Bank ceasing to be an Eligible InstitutionInstitution or, with respect to KeyBank, if KeyBank is downgraded below BBB by S&P or the equivalent by another Rating Agency, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender in accordance with the terms and conditions thereof or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower Bxxxxxxx and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes Account and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revokednew Tenant Direction Letters.
Appears in 1 contract
Clearing Account. (a) During the term of the Loan, Borrower shall establish and maintain an Eligible Account account (the “Clearing Account”) with Clearing Bank in trust for the benefit of Lender, which Lender in accordance with the Clearing Account Agreement. The Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name of Borrower for the benefit of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account and such proceeds. Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt has been paid in full.
(b) Borrower shall cause all Rents to be delivered directly to the Clearing Account. In accordance with the Clearing Account Agreement, Borrower shall, or shall cause Manager to, deliver irrevocable written instructions to all Tenants under Leases to deliver all Rents payable thereunder directly to the Clearing Account. Notwithstanding anything to the contrary contained herein or in any other Loan Documents, in the event Borrower or Manager shall receive any amounts constituting Rents, Borrower shall, and shall cause Manager to, deposit all such amounts received by Borrower or Manager constituting Rents into the Clearing Account within two one (21) Business Days Day after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower shall obtain from Clearing Bank its agreement to transfer within seven (7) Business Days to the Cash Management Account in immediately available funds by federal wire transfer all amounts on deposit in the Clearing Account at once every Business Day throughout the direction term of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management AccountLoan.
(d) Upon During the occurrence continuation of an Event of Default or any Bankruptcy Action of Borrower or ManagerDefault, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums amounts then present on deposit in the Clearing Account to the payment of the Debt in any order order, proportion and priority as Lender may determine in its sole and absolute discretion.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager Borrower or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or and/or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing , except to be an Eligible Institutionthe extent that any such actions, (ii) suits, claims, demands, liabilities, losses, damages, obligations or costs and expenses arise from the Clearing Account ceasing to be an Eligible Accountgross negligence, (iii) any resignation by Clearing Bank illegal acts, fraud or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days willful misconduct of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 1 contract
Samples: Loan Agreement (KBS Strategic Opportunity REIT, Inc.)
Clearing Account. (a) During Borrower shall establish and maintain the Clearing Account with the Clearing Bank on or prior to the Closing Date, and thereafter Borrower shall maintain the Clearing Account at all times during the remainder of the term of the Loan, Borrower shall establish and maintain an Eligible Account (the “Clearing Account”) with Clearing Bank for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name “P/A-Acadia Pelham Manor, LLC, as Borrower and Bear Sxxxxxx Commercial Mortgage, Inc., as Lender, pursuant to Loan Agreement dated as of Borrower for the benefit of LenderDecember 10, 2007 - Clearing Account”. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds deposits at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in thereof. All monies now or hereafter deposited into the Clearing Account shall be deemed additional security for the Debt.
(b) Borrower shall obtain from the Clearing Bank and such proceeds. deliver to Lender an agreement, in form and Servicer substance satisfactory to Lender (the “Clearing Account Agreement”), pursuant to which: (i) Borrower and Clearing Bank acknowledge and agree that during a Cash Trap Period, Lender shall have the sole right to make withdrawals from the Clearing Account. All Account and all costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All ; (ii) upon notice from Lender that a Cash Trap Period exists, the Clearing Bank agrees to transfer to the Cash Management Account in immediately available funds now by federal wire transfer all amounts on deposit in the Clearing Account once every Business Day during the term of the Loan.
(c) Borrower shall (i) deliver irrevocable written instructions to all tenants under Leases to deliver all Rents (including additional rent, payable thereunder directly to the Clearing Account, and (ii) deliver irrevocable written instructions to each of the credit card companies or hereafter deposited credit card clearing banks with which Borrower or Manager has entered into or credited merchant’s agreements to deliver all receipts payable with respect to the Property directly to the Clearing Account (collectively, the “Payment Direction Letters.”). Borrower and Manager shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt has been paid in full.
(b) Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the Clearing Account within two one (21) Business Days Day after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower shall obtain from Clearing Bank its agreement to transfer within seven (7) Business Days all amounts on deposit in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Account.
(d) Upon the occurrence of an Event of Default or any Bankruptcy Action of Borrower or ManagerDefault, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in the Clearing Account to the payment of the Debt in any order in its sole discretion.
(e) The Clearing Account shall be an Eligible Account and shall not be commingled with other monies held by Borrower, Manager Borrower or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ attorneys fees and expenses) arising from or in any way connected with the Clearing Account or and/or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 1 contract
Clearing Account. (a) During the term of the Loan, Borrower shall establish and maintain an a segregated Eligible Account (the “Clearing Account”) with the Clearing Bank in trust for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name of Borrower “Xxxxxx Element LA, LLC, as pledgor, for the benefit of LenderCantor Commercial Real Estate Lending, L.P. and Xxxxxxx Xxxxx Mortgage Company, collectively, as Secured Party – Clearing Account,” or such other name as required by Lender from time to time. Borrower (i) hereby grants to Lender a first-first priority security interest in the Clearing Account and all funds deposits at any time credited thereto or contained therein and the proceeds thereof thereof, and shall (ii) will take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account, including, without limitation, the execution of any account control agreement required by Lender. Borrower will not in any way alter, modify or close the Clearing Account and such proceedswill notify Lender of the account number thereof. Except as may be expressly permitted in the Clearing Account Agreement, Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All Account and all costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds monies now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the Debt. As of the date hereof, pursuant to the terms of the Clearing Account Agreement, the Clearing Account has been assigned the following number at Clearing Bank: 4609101241.
(b) Borrower shall, or shall cause Manager to, deliver written instructions to all Tenants under Leases to deliver all Rents payable thereunder directly to the Clearing Account. Borrower shall, and shall cause Manager to, deposit into the Clearing Account within three (3) Business Days after receipt all amounts received by Borrower or Manager constituting Rents. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt Loan has been paid repaid in full.
(bc) Prior to any Cash Management Period, Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the Clearing Account within two (2) Business Days after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower shall obtain from Clearing Bank its agreement to transfer within seven (7) Business Days to Borrower’s Operating Account in immediately available funds by Federal wire transfer all amounts on deposit in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred (less any required minimum balance pursuant to the Cash Management terms of the Clearing Account Agreement) once every Business Day. As of the date hereof, Borrower’s Operating Account has been assigned the following number with Clearing Bank: 4945713832 (“Borrower’s Operating Account”).
(d) During any Cash Management Period, Borrower shall cause the Clearing Bank to transfer to the Cash Management Account in immediately available funds by Federal wire transfer all amounts on deposit in the Clearing Account (less any required minimum balance pursuant to the terms of the Clearing Account Agreement) once every Business Day.
(e) Upon the occurrence and during the continuance of an Event of Default or any Bankruptcy Action of Borrower or ManagerDefault, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present direct Clearing Bank to immediately pay over all funds on deposit in the Clearing Account to Lender and to apply any such funds to the payment of the Debt in any order in its sole discretion.
(ef) The Funds deposited into the Clearing Account shall not be commingled with other monies held by Borrower, Manager or Clearing Bank.
(fg) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statementsfinancing statements, except those naming Lender as the secured party, to be filed with respect thereto.
(gh) Borrower shall indemnify Lender and Clearing Bank and hold Lender and Clearing Bank harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damagesactual damages (excluding punitive damages and consequential damages (other than punitive damages or consequential damages that are assessed against an Indemnified Party, and other than any diminution in value or lost revenue which are in any way related to Hazardous Substances or Environmental Statutes)), obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or Account, the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
established (h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) unless arising from the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank gross negligence or termination willful misconduct of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of DefaultClearing Bank, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lenderas applicable), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 1 contract
Clearing Account. (a) During the term of the Loan, Borrower shall establish and maintain an Eligible Account account (the “Clearing Account”) with Clearing Bank in trust for the benefit of Lender, which Lender in accordance with the Clearing Account Agreement. The Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name of Borrower for the benefit of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account and such proceeds. Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt has been paid in full.
(b) Borrower shall cause all Rents to be delivered directly to the Clearing Account. In accordance with the Clearing Account Agreement, Borrower shall, or shall cause Manager to, deliver irrevocable written instructions to all non-residential tenants under Leases, if any, to deliver all Rents payable thereunder directly to the Clearing Account, and (ii) deliver irrevocable written instructions to each of the credit card companies or credit card clearing banks with which Borrower or Manager has entered into merchant’s agreements to deliver all receipts payable with respect to the Property directly to the Clearing Account. Notwithstanding anything to the contrary contained herein or in any other Loan Documents, in the event Borrower or Manager shall receive any amounts constituting Rents, Borrower shall, and shall cause Manager to, deposit all such amounts received by Borrower or Manager constituting Rents into the Clearing Account within two (2) Business Days after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower shall obtain from Clearing Bank its agreement to transfer within seven (7) Business Days to the Cash Management Account in immediately available funds by federal wire transfer all amounts on deposit in the Clearing Account at (less the direction fees and expenses of Borrower unless a Cash Sweep Period is the Clearing Bank in effect, in which case such funds shall be transferred to accordance with the Cash Management AccountClearing Account Agreement) once every Business Day throughout the term of the Loan.
(d) Upon the occurrence and during the continuation of an Event of Default or any Bankruptcy Action of Borrower or ManagerDefault, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums amounts then present on deposit in the Clearing Account to the payment of the Debt in any order order, proportion and priority as Lender may determine in its sole and absolute discretion.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager Borrower or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or and/or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing ; provided, however, that Borrower shall not be liable for the payment of any such costs and expenses to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation extent such costs and expenses arise by Clearing Bank reason of gross negligence or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days willful misconduct of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 1 contract
Clearing Account. (ai) During the term of the Loan, Borrower shall establish and maintain an a segregated Eligible Account (the “Clearing Account”) pursuant to the terms of the Clearing Account Agreement with the Clearing Bank Bank, which such Clearing Account shall be in trust for the benefit of Lender, which Clearing Account Lender and shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name of Borrower for the benefit of Lender. Borrower (i) hereby grants to Lender a first-first priority security interest in the Clearing Account and all funds deposits at any time credited thereto or contained therein and the proceeds thereof thereof, and shall (ii) will take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account and such proceedsAccount, including, without limitation, the execution of any account control agreement required by Lender. Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt has been paid in full.
(b) Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the Clearing Account within two (2) Business Days after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower shall obtain from Clearing Bank its agreement to transfer within seven (7) Business Days all amounts on deposit in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Account.
(d) Upon the occurrence of an Event of Default or any Bankruptcy Action of Borrower or Manager, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in the Clearing Account to the payment of the Debt in any order in its discretion.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statementsfinancing statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) . Borrower will not in any way alter, modify or close the Clearing Account and will notify Lender of the account number thereof. Except as may be expressly permitted in the Clearing Account Agreement, Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account and all costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All monies now or hereafter deposited into the Clearing Account shall be deemed additional security for the Debt. Borrower shall indemnify Lender and Clearing Bank and hold Lender and Clearing Bank harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ attorneys fees and expenses) actually incurred and arising from or in any way connected with the Clearing Account or Account, the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was establishedestablished (unless arising from the gross negligence or willful misconduct of Lender or Clearing Bank, as applicable, and excluding consequential, special and/or punitive damages).
(hii) Upon Borrower shall cause Manager to deposit all Rents into the Clearing Account within one (1) Business Day of receipt thereof. Without in any way limiting the foregoing, if Borrower, Manager or any of their respective Affiliates receive any Rents or other Gross Revenue or Net Proceeds from the Property, then (i) Clearing Bank ceasing such amounts shall be deemed to be an Eligible Institutioncollateral for the Obligations and shall be held in trust for the benefit of, and as the property of Lender, (ii) such amounts shall not be commingled with any other funds or property of Borrower, Manager or any of their respective Affiliates, and (iii) Borrower, Manager or such Affiliate shall deposit such amounts in the Clearing Account ceasing to be an Eligible Account, within one (1) Business Day of receipt thereof.
(iii) any resignation by Clearing Bank or termination of Funds deposited into the Clearing Account Agreement shall be swept by the Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, on a daily basis (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Defaulta Cash Trap Period, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing into the Cash Management Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement applied and disbursed in accordance with Lender on substantially the same terms and conditions as the previous Clearing Account this Agreement and the Cash Management Agreement, and (DB) send any notices required pursuant provided that no Cash Trap Period is then continuing, to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revokedBorrower’s operating account.
Appears in 1 contract
Samples: Loan Agreement (Pacific Oak Strategic Opportunity REIT II, Inc.)
Clearing Account. (a) During the term of the Loan, Borrower shall establish and maintain an a segregated Eligible Account (the “Clearing Account”) with the Clearing Bank in trust for the benefit of Agent for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of LenderAgent. The Clearing Account shall be entitled in the name of Borrower “110 XXXXXXX PROPERTY INVESTORS III, LLC, as pledgor, for the benefit of LenderXXXXXX XXXXXXX MORTGAGE CAPITAL HOLDINGS LLC, AS AGENT, as Secured Party – Clearing Account,” or such other name as required by Agent from time to time. Borrower (i) hereby grants to Lender Agent, for the ratable benefit of Lender, a first-first priority security interest in the Clearing Account and all funds deposits at any time credited thereto or contained therein and the proceeds thereof thereof, and shall (ii) will take all actions necessary to maintain in favor of Lender Agent, for the ratable benefit of Lender, a perfected first priority security interest in the Clearing Account, including, without limitation, the execution of any account control agreement required by Agent and filing or authorizing Agent to file UCC‑1 financing statements and continuations thereof. Such financing statements may describe as the collateral covered thereby as “all assets of the debtor, whether now owned or hereafter acquired” or words to the effect. Borrower will not in any way alter, modify or close the Clearing Account and such proceedswill notify Agent of the account number thereof. Lender Except as may be expressly permitted in the Clearing Account Agreement, Agent and Servicer shall have the sole right to make withdrawals from the Clearing Account. All Account and all costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds monies now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the DebtObligations.
(b) Borrower shall, or shall cause Manager to, deliver written instructions to all Tenants under Leases to deliver all Rents payable thereunder directly to the Clearing Account. Borrower shall, and shall cause Manager to, deposit into the Clearing Account within one (1) Business Day after receipt all amounts received by Borrower or Manager constituting Rents, other Gross Income from Operations, or other amounts related to the use, ownership or operation of the Property. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt Loan has been paid repaid in full.
(b) Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the Clearing Account within two (2) Business Days after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower shall obtain from cause the Clearing Bank its agreement to transfer within seven (7) Business Days to the Cash Management Account in immediately available funds by federal wire transfer all amounts on deposit in the USActive 36631986.12 -64- Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred on each Business Day (less any required minimum balance pursuant to the Cash Management Accountterms of the Clearing Account Agreement).
(d) Upon the occurrence of an Event of Default or any Bankruptcy Action of Borrower or ManagerDefault, Lender Agent may, in addition to any and all other rights and remedies available to Agent for the ratable benefit of Lender, apply any sums then present direct the Clearing Bank to immediately pay over all funds on deposit in the Clearing Account to Agent for the ratable benefit of Lender and to apply any such funds to the payment of the Debt in any order in its sole discretion, provided, however, in the event the Clearing Account or Cash Management Account has sufficient funds and Agent fails to apply such funds to required Taxes or Insurance Premiums when due and payable, the failure by Borrower to pay Taxes or Insurance Premiums shall not give rise to liability of Borrower or Guarantor under Section 3.1(b)(viii) of this Agreement.
(e) The Funds deposited into the Clearing Account shall not be commingled with other monies held by Borrower, Manager or the Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing StatementsUCC‑1 financing statements, except those naming Lender Agent, for the ratable benefit of Lender, as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Agent, Lender and the Clearing Bank and hold Agent, Lender and the Clearing Bank harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) (other than consequential or punitive damages) arising from or in any way connected with the Clearing Account or Account, the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
established (h) Upon (i) Clearing Bank ceasing to be an Eligible Institutionunless arising from the willful misconduct, (ii) gross negligence, fraud, criminal acts, bad faith or material breach of the Loan Documents by Agent, Lender or the Clearing Account ceasing to be an Eligible AccountBank, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lenderas applicable), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 1 contract
Samples: Building Loan Agreement (KBS Strategic Opportunity REIT, Inc.)
Clearing Account. (a) During Upon the term first occurrence of the Loana Trigger Period, Borrower shall establish and, during the occurrence and continuance of a Trigger Period, maintain an Eligible Account account (the “Clearing Account”) with a local bank selected by Borrower and approved by Lender (which approval shall not be unreasonably withheld or delayed) (the “Clearing Bank Bank”) in trust for the benefit of Lender in accordance with an agreement among Borrower, Lender, which Manager (if applicable) and the Clearing Bank in form and substance reasonably acceptable to Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time (the “Clearing Account Agreement”). The Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name of Borrower for the benefit of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account and such proceeds. Lender and Servicer its servicer shall have the sole right to make withdrawals from the Clearing Account. All costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt has been paid in full.
(b) During the occurrence and continuance of a Trigger Period, Borrower shall cause all Rents and Profits to be delivered directly to the Clearing Account. In accordance with the Clearing Account Agreement, Borrower shall, or shall cause Manager (if applicable) to, deliver written instructions (which instructions can be revoked only upon the termination of the Trigger Period) to all tenants under Leases to deliver all Rents and Profits payable thereunder directly to the Clearing Account. Notwithstanding anything to the contrary contained herein or in any other Loan Documents, in the event Borrower or Manager (if applicable) shall receive any amounts constituting Rents and Profits during the occurrence and continuance of a Trigger Period, Borrower shall, and shall cause Manager (if applicable) to, deposit all such amounts received by Borrower or the Manager constituting Rents (if applicable) into the Clearing Account within two one (21) Business Days Day after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower shall obtain from Clearing Bank its agreement to transfer within seven (7) Business Days transfer, from and after such time as the Clearing Bank has received a Cash Management Activation Notice and until such time as the Clearing Bank has received a Cash Management Deactivation Notice, all amounts on deposit in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management AccountAccount in immediately available funds by federal wire transfer once every Business Day.
(d) Upon the occurrence and during the continuation of an Event of Default or any Bankruptcy Action of Borrower or ManagerDefault, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums amounts then present on deposit in the Clearing Account to the payment of the Debt Obligations in any order order, proportion and priority as Lender may determine in its sole and absolute discretion.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager Borrower or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) Losses arising from or in any way connected with the Clearing Account or and/or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing established except with regard to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank gross negligence or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days willful misconduct of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 1 contract
Samples: Loan Agreement (New England Realty Associates Limited Partnership)
Clearing Account. (ai) During the term of the Loan, Borrower shall establish and maintain an a segregated Eligible Account (the “Clearing Account”) pursuant to the terms of the Clearing Account Agreement with the Clearing Bank Bank, which such Clearing Account shall be in trust for the benefit of Lender, which Clearing Account Lenders and shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name of Borrower Administrative Agent, for the benefit of LenderLenders. Borrower Borrower
(i) hereby grants to Lender Administrative Agent, for the benefit of Lenders a first-first priority security interest in the Clearing Account and all funds deposits at any time credited thereto or contained therein and the proceeds thereof thereof, and shall (ii) will take all actions necessary to maintain in favor of Lender Administrative Agent, for the benefit of Lenders a perfected first priority security interest in the Clearing Account and such proceedsAccount, including, without limitation, the execution of any account control agreement required by Administrative Agent. Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt has been paid in full.
(b) Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the Clearing Account within two (2) Business Days after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower shall obtain from Clearing Bank its agreement to transfer within seven (7) Business Days all amounts on deposit in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Account.
(d) Upon the occurrence of an Event of Default or any Bankruptcy Action of Borrower or Manager, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in the Clearing Account to the payment of the Debt in any order in its discretion.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statementsfinancing statements, except those naming Lender Administrative Agent, for the benefit of Lenders as the secured party, to be filed with respect thereto.
(g) . Borrower will not in any way alter, modify or close the Clearing Account and will notify Administrative Agent of the account number thereof. Except as may be expressly permitted in the Clearing Account Agreement, Administrative Agent, for the benefit of Lenders shall have the sole right to make withdrawals from the Clearing Account and all costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All monies now or hereafter deposited into the Clearing Account shall be deemed additional security for the Debt. Borrower shall indemnify Administrative Agent, each Lender and Clearing Bank and hold Administrative Agent, each Lender and Clearing Bank harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or Account, the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was establishedestablished (unless arising from the gross negligence or willful misconduct of Administrative Agent, any Lender or Clearing Bank, as applicable).
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) Borrower shall (and shall cause Manager to) cause each such Tenant to pay all Rent and other Gross Revenue directly into the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating hereof. In furtherance of the foregoing, Borrower shall (or shall cause Manager to) execute and deliver the Tenant Direction Letters addressed to each (A) Tenant existing as of the Closing Date within five (5) Business Days after the Closing Date, and (B) new -128- Tenant pursuant to a Lease executed after the Closing Date in accordance with the terms hereof, concurrently with the execution of such new Clearing Account Agreement and Clearing AccountLease with such Tenant. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power Without in any way limiting the foregoing, if Borrower, Manager or any of substitution to complete their respective Affiliates receive any Rents or undertake any action required of Borrower under this Section 2.7.1 in other Gross Revenue or Net Proceeds from the name of Borrower in the event Borrower fails to do the same. Such power of attorney Property, then (i) such amounts shall be deemed to be collateral for the Obligations and shall be held in trust for the benefit of, and as the property of Administrative Agent, for the benefit of Lenders and (ii) Borrower, Manager or such Affiliate shall deposit such amounts in the Clearing Account within two (2) Business Days of receipt thereof.
(iii) Funds deposited into the Clearing Account shall be swept by the Clearing Bank on a power coupled daily basis as follows: (A) if a Cash Trap Period exists, all such funds shall be transferred to the Deposit Account and applied and disbursed in accordance with an interest this Agreement and cannot the Cash Management Agreement and (B) if no Cash Trap Period exists, all such funds shall be revokeddisbursed to Borrower as provided in the Clearing Account Agreement.
Appears in 1 contract
Samples: Senior Loan Agreement (Pacific Oak Strategic Opportunity REIT, Inc.)
Clearing Account. (a) During the term of the Loan, Borrower shall establish and maintain an Eligible Account (the “Clearing Account”) with Clearing Bank for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name of Borrower for the benefit of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds deposits at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account Account, including filing UCC-1 Financing Statements and such proceedscontinuations thereof. Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds now or hereafter deposited into or credited to monies on deposit in the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt Loan has been paid repaid in full.
(b) Borrower shall, or shall cause Manager to, (i) within ten (10) days of the Closing Date with respect to Leases in existence on the date hereof and (ii) simultaneously with the execution of any Lease entered into after the date hereof, deliver Tenant Direction Letters to all Tenants to deliver all Rents payable under their respective Leases directly to the Clearing Account. Without the prior written consent of Lender, neither Borrower nor Manager shall (i) terminate, amend, revoke or modify any Tenant Direction Letter in any manner or (ii) direct or cause any Tenant to pay any amount in any manner other than as provided in the Tenant Direction Letter. Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the Clearing Account within two one (21) Business Days Day after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower shall obtain from Clearing Bank its agreement to transfer within seven (7) on each Business Days Day all amounts on deposit in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Account.
(d) Upon the occurrence of an Event of Default or any Bankruptcy Action of Borrower or ManagerBorrower, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in the Clearing Account to the payment of the Debt in any order in its discretion.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, and demands, and actual out-of-pocket liabilities, losses, damages (excluding, in all events, consequential, punitive, special, exemplary and indirect damages), obligations and costs and expenses (including litigation costs and reasonable out-of-pocket attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or the Clearing Account Agreement (unless arising from the gross negligence negligence, fraud or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing AccountAccount and new Tenant Direction Letters. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 1 contract
Clearing Account. (a) During the term of the Loan, Borrower and/or Operating Lessee shall establish and maintain an Eligible Account account or accounts (collectively, the “Clearing Account”) with Clearing Bank in trust for the benefit of Lender, which Lender in accordance with the Clearing Account Agreement. The Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name of Borrower for the benefit of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account and such proceeds. Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds now The Clearing Account shall at all times be an Eligible Account and the Clearing Bank shall at all times be an Eligible Institution. In the event Clearing Bank ceases to qualify as an Eligible Institution, resigns as Clearing Bank, or hereafter deposited into defaults under or credited to terminates the Clearing Account Agreement, Borrower shall be deemed additional security for cooperate with Lender in designating a successor Eligible Institution and transferring the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt has been paid in fullto such Eligible Institution, each within thirty (30) days after request by Lender.
(b) Borrower and/or Operating Lessee shall cause all Rents to be delivered directly to the Clearing Account. In accordance with the Clearing Account Agreement, Borrower and/or Operating Lessee shall, or shall cause Manager to, (i) deliver irrevocable written instructions to all non-residential tenants under Leases to deliver all Rents payable thereunder directly to the Clearing Account and (ii) deliver irrevocable written instructions to each of the credit card companies or credit card clearing banks with which Borrower, Operating Lessee or Manager has entered into merchant’s agreements to deliver all receipts payable with respect to the Property directly to the Clearing Account. Notwithstanding anything to the contrary contained herein or in any other Loan Documents, in the event Borrower, Operating Lessee or Manager shall receive any amounts constituting Rents, Borrower shall, and shall cause Manager to, deposit all such amounts received by Borrower Borrower, Operating Lessee or Manager constituting Rents into the Clearing Account within two one (21) Business Days Day after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Unless a Cash Management Activation Notice remains in effect, pursuant to the Clearing Account Agreement, the Clearing Account Bank shall deliver all funds deposited in the Clearing Account to Borrower as directed by Borrower in accordance with the terms of the Clearing Account Agreement. Borrower shall obtain from Clearing Bank its agreement to transfer within seven (7) Business Days transfer, from and after such time as Clearing Bank has received a Cash Management Activation Notice and until such time as Clearing Bank has received a Cash Management De-Activation Notice, all amounts on deposit in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management AccountAccount in immediately available funds by federal wire transfer once every Business Day in accordance with the Clearing Account Agreement.
(d) Upon the occurrence and during the continuation of an Event of Default or any Bankruptcy Action of Borrower or ManagerDefault, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums amounts then present on deposit in the Clearing Account to the payment of the Debt in any order order, proportion and priority as Lender may determine in its sole and absolute discretion.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager Operating Lessee or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and reasonable out-of-pocket costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or and/or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 1 contract
Clearing Account. (a) During the term of the Loan, Borrower shall establish and maintain an Eligible Account (the “Clearing Account”) with Clearing Bank for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name of Borrower for the benefit of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account and such proceeds. Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt has been paid in full.
(b) Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the Clearing Account within two (2) Business Days after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower and Lender shall obtain from jointly instruct Clearing Bank its agreement to transfer within seven (7) on every Business Days Day all amounts on deposit in the Clearing Account to one or more accounts held by Borrower and at the direction of Borrower Borrower, unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Account. Notwithstanding the provisions of this paragraph, Lender shall collect the Monthly Debt Service Payment Amount from the Clearing Bank on each Payment Date.
(d) Upon the occurrence of an Event of Default or any Bankruptcy Action of Borrower or ManagerManager beyond any applicable cure period, Lender may, in addition to any and all other rights and remedies available to Lender, apply declare that a Cash Sweep Period is in effect, and instruct Clearing Bank to transfer any sums then present in the Clearing Account to the payment of the Debt in any order in its discretionCash Management Account.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 1 contract
Samples: Commercial Loan Agreement (Red Oak Capital Fund V, LLC)
Clearing Account. (ai) During the term of the Loan, Borrower shall establish and maintain an a segregated Eligible Account (the “Clearing Account”) pursuant to the terms of the Clearing Account Agreement with the Clearing Bank Bank, which such Clearing Account shall be in trust for the benefit of Lender, which Clearing Account Lenders and shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name of Borrower Administrative Agent, for the benefit of LenderLenders. Borrower (i) hereby grants to Lender Administrative Agent, for the benefit of Lenders a first-first priority security interest in the Clearing Account and all funds deposits at any time credited thereto or contained therein and the proceeds thereof thereof, and shall (ii) will take all actions necessary to maintain in favor of Lender Administrative Agent, for the benefit of Lenders a perfected first priority security interest in the Clearing Account and such proceedsAccount, including, without limitation, the execution of any account control agreement required by Administrative Agent. Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt has been paid in full.
(b) Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the Clearing Account within two (2) Business Days after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower shall obtain from Clearing Bank its agreement to transfer within seven (7) Business Days all amounts on deposit in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Account.
(d) Upon the occurrence of an Event of Default or any Bankruptcy Action of Borrower or Manager, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in the Clearing Account to the payment of the Debt in any order in its discretion.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statementsfinancing statements, except those naming Lender Administrative Agent, for the benefit of Lenders as the secured party, to be filed with respect thereto.
(g) . Borrower will not in any way alter, modify or close the Clearing Account and will notify Administrative Agent of the account number thereof. Except as may be expressly permitted in the Clearing Account Agreement, Administrative Agent, for the benefit of Lenders shall have the sole right to make withdrawals from the Clearing Account and all costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All monies now or hereafter deposited into the Clearing Account shall be deemed additional security for the Debt. Borrower shall indemnify Administrative Agent, each Lender and Clearing Bank and hold Administrative Agent, each Lender and Clearing Bank harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or Account, the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was establishedestablished (unless arising from the gross negligence or willful misconduct of Administrative Agent, any Lender or Clearing Bank, as applicable).
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) Borrower shall (and shall cause Manager to) cause each such Tenant to pay all Rent and other Gross Revenue directly into the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating hereof. In furtherance of the foregoing, Borrower shall (or shall cause Manager to) execute and deliver the Tenant Direction Letters addressed to each (A) Tenant existing as of the Closing Date within five (5) Business Days after the Closing Date, and (B) new Tenant pursuant to a Lease executed after the Closing Date in accordance with the terms hereof, concurrently with the execution of such new Clearing Account Agreement and Clearing AccountLease with such Tenant. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power Without in any way limiting the foregoing, if Borrower, Manager or any of substitution to complete their respective Affiliates receive any Rents or undertake any action required of Borrower under this Section 2.7.1 in other Gross Revenue or Net Proceeds from the name of Borrower in the event Borrower fails to do the same. Such power of attorney Property, then (i) such amounts shall be deemed to be collateral for the Obligations and shall be held in trust for the benefit of, and as the property of Administrative Agent, for the benefit of Lenders and (ii) Borrower, Manager or such Affiliate shall deposit such amounts in the Clearing Account within two (2) Business Days of receipt thereof.
(iii) Funds deposited into the Clearing Account shall be swept by the Clearing Bank on a power coupled daily basis as follows: (A) if a Cash Trap Period exists, all such funds shall be transferred to the Deposit Account and applied and disbursed in accordance with an interest this Agreement and cannot the Cash Management Agreement and (B) if no Cash Trap Period exists, all such funds shall be revokeddisbursed to Borrower as provided in the Clearing Account Agreement.
Appears in 1 contract
Samples: Senior Loan Agreement (KBS Strategic Opportunity REIT, Inc.)
Clearing Account. (a) During Borrower shall establish and maintain the Clearing Account with the Clearing Bank on or prior to the Closing Date, and thereafter Borrower shall maintain the Clearing Account at all times during the remainder of the term of the Loan, Borrower shall establish and maintain an Eligible Account (the “Clearing Account”) with Clearing Bank for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name “P/A-Acadia Pelham Manor, LLC, as Borrower and Bear Sxxxxxx Commercial Mortgage, Inc., as Lender, pursuant to Loan Agreement dated as of Borrower for the benefit of LenderDecember 10, 2007 — Clearing Account”. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds deposits at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in thereof. All monies now or hereafter deposited into the Clearing Account shall be deemed additional security for the Debt.
(b) Borrower shall obtain from the Clearing Bank and such proceeds. deliver to Lender an agreement, in form and Servicer substance satisfactory to Lender (the “Clearing Account Agreement”), pursuant to which: (i) Borrower and Clearing Bank acknowledge and agree that during a Cash Trap Period, Lender shall have the sole right to make withdrawals from the Clearing Account. All Account and all costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All ; (ii) upon notice from Lender that a Cash Trap Period exists, the Clearing Bank agrees to transfer to the Cash Management Account in immediately available funds now by federal wire transfer all amounts on deposit in the Clearing Account once every Business Day during the term of the Loan.
(c) Borrower shall (i) deliver irrevocable written instructions to all tenants under Leases to deliver all Rents (including additional rent, payable thereunder directly to the Clearing Account, and (ii) deliver irrevocable written instructions to each of the credit card companies or hereafter deposited credit card clearing banks with which Borrower or Manager has entered into or credited merchant’s agreements to deliver all receipts payable with respect to the Property directly to the Clearing Account (collectively, the “Payment Direction Letters.”). Borrower and Manager shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt has been paid in full.
(b) Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the Clearing Account within two one (21) Business Days Day after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower shall obtain from Clearing Bank its agreement to transfer within seven (7) Business Days all amounts on deposit in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Account.
(d) Upon the occurrence of an Event of Default or any Bankruptcy Action of Borrower or ManagerDefault, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in the Clearing Account to the payment of the Debt in any order in its sole discretion.
(e) The Clearing Account shall be an Eligible Account and shall not be commingled with other monies held by Borrower, Manager Borrower or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ attorneys fees and expenses) arising from or in any way connected with the Clearing Account or and/or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 1 contract
Clearing Account. (a) During the term of the Loan, Borrower shall establish and maintain an Eligible Account (the “Clearing Account”) with Clearing Bank for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name of Borrower for the benefit of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds deposits at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account Account, including filing UCC-1 Financing Statements and such proceedscontinuations thereof. Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds monies now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt Loan has been paid repaid or defeased in full.
(b) Borrower shall, or shall cause Manager to, (i) on or prior to the Closing Date with respect to Leases in existence on the date hereof and (ii) simultaneously with the execution of any Lease entered into after the date hereof, deliver Tenant Direction Letters to all Tenants to deliver all Rents payable under their respective Leases directly to the Clearing Account. Without the prior written consent of Lender, neither Borrower nor Manager shall (i) terminate, amend, revoke or modify any Tenant Direction Letter in any manner or (ii) direct or cause any Tenant to pay any amount in any manner other than as provided in the Tenant Direction Letter. Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the Clearing Account within two one (21) Business Days Day after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower shall obtain from Clearing Bank its agreement to transfer within seven (7) on each Business Days Day all amounts on deposit in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Account.
(d) Upon the occurrence of an Event of Default or any Bankruptcy Action of Borrower or Manager, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in the Clearing Account to the payment of the Debt in any order in its discretion.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing AccountAccount and new Tenant Direction Letters. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 1 contract
Samples: Loan Agreement (Carter Validus Mission Critical REIT II, Inc.)
Clearing Account. (a) During the term of the Loan, Borrower shall establish and maintain an Eligible Account account (the “Clearing Account”) with Clearing Bank in trust for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name “Behringer Harvard 945 East Paces Ferry Road, LLC, as Borrower, and JPMorgan Chase Bank, N.A., as Lender, pursuant to Loan Agreement dated as of Borrower for the benefit of LenderNovember 30, 2006 — Clearing Account”. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds deposits at any time credited thereto or contained therein and the proceeds thereof and shall will take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account Account, including, without limitation, executing and such proceedsfiling UCC-1 Financing Statements and continuations thereof. Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All Account and all costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds monies now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt has been paid in full.
(b) Borrower shall, or shall cause Property Manager to, deliver irrevocable written instructions to all tenants under Leases to deliver all Rents payable thereunder directly to the Clearing Account. Borrower shall, and shall cause Property Manager to, deposit all amounts received by Borrower or Property Manager constituting Rents into the Clearing Account within two one (21) Business Days Day after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower shall obtain from Clearing Bank its agreement to transfer within seven (7) Business Days to the Deposit Account in immediately available funds by federal wire transfer all amounts on deposit in the Clearing Account at once every Business Day during the direction continuance of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management AccountPeriod.
(d) Upon the occurrence of an Event of Default or any Bankruptcy Action of Borrower or ManagerDefault, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in the Clearing Account to the payment of the Debt in any order in its sole discretion.
(e) The Clearing Account shall be an Eligible Account and shall not be commingled with other monies held by Borrower, Manager Borrower or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto, and except for the rights of the Clearing Bank under the Clearing Account Agreement.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ attorneys fees and expenses) arising from or in any way connected with the Clearing Account or and/or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 1 contract
Clearing Account. (a) During the term of the Loan, Borrower shall establish and maintain an Eligible Account (the “Clearing Account”) with Clearing Bank for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Subject to Section 2.5.2(e), the Clearing Account shall be entitled in the name of Borrower ARC LCROWTX001, LLC Et. Al. for the benefit of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds deposits at any time credited thereto or contained therein and the proceeds thereof and shall take all actions reasonably necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account Account, including (at Lxxxxx’s request) filing UCC-1 Financing Statements and such proceedscontinuations thereof. Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All actual, reasonable costs and expenses for establishing and maintaining the Clearing Account shall be paid by BorrowerBxxxxxxx. All funds now or hereafter deposited into or credited to monies on deposit in the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt Loan has been paid repaid in full.
(b) Borrower shall, or shall cause Manager to, (i) within ten (10) days of the Closing Date with respect to Leases in existence on the date hereof and (ii) simultaneously with the execution of any Lease entered into after the date hereof, deliver Tenant Direction Letters to all Tenants, directing such Tenants to deliver all Rents payable under their respective Leases directly to the Clearing Account. Without the prior written consent of Lender (except in connection with the delivery to Tenants of a Released Property following satisfaction of the conditions set forth in Section 2.5.2 with respect to such Released Property), neither Borrower nor Manager shall (i) terminate, amend, revoke or modify any Tenant Direction Letter in any manner or (ii) direct or cause any Tenant to pay any amount in any manner other than as provided in the Tenant Direction Letter. Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the Clearing Account within two one (21) Business Days Day after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager. Notwithstanding the foregoing terms of this Section 2.6.1 or anything to the contrary in the other Loan Documents (including the Cash Management Agreement), and without limiting Borrower’s obligation to cause all amounts received by Borrower or Manager constituting Rents to be deposited into the Clearing Account within one (1) Business Day after receipt thereof, Borrower shall not be required to send Tenant Direction Letters to the Tenants that use VersaPay to pay their Rent, provided that Borrower shall (using VersaPay) direct all such Rent to the Clearing Account.
(c) Borrower The Clearing Account Agreement shall obtain from provide that Clearing Bank its agreement to shall transfer within seven (7) on each Business Days Day all amounts on deposit in the Clearing Account at the direction of Borrower (including a transfer to Borrower) unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Account.
(d) Upon During the occurrence continuance of an Event of Default or any Bankruptcy Action of Borrower or ManagerBorrower, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in the Clearing Account to the payment of the Debt in any order in its discretion. Upon cessation (or waiver) of such Event of Default or Bankruptcy Action, all such funds (to the extent same have not been applied to the Debt) shall be returned to the Clearing Account.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, and demands, and actual out-of-pocket liabilities, losses, damages (excluding, consequential, punitive, special, exemplary and indirect damages, except to the extent such damages are actually paid or payable to a third-party), obligations and reasonable, actual costs and expenses (including litigation costs and reasonable out-of-pocket attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or the Clearing Account Agreement (unless arising from the gross negligence negligence, fraud or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established).
(h) Upon (i) Clearing Bank ceasing to be an Eligible InstitutionInstitution or, with respect to KeyBank, if KeyBank is downgraded below BBB by S&P or the equivalent by another Rating Agency, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender in accordance with the terms and conditions thereof or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower Bxxxxxxx and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes Account and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revokednew Tenant Direction Letters.
Appears in 1 contract
Clearing Account. (a) During Upon the term occurrence of the Loana Cash Sweep Event, Borrower shall establish and maintain an Eligible Account (the “Clearing Account”) with Clearing Bank for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name of Borrower Master Tenant for the benefit of Lender. Master Tenant shall grant to Borrower, as security for Master Tenant’s obligations under the Master Lease, a first-priority security interest in the Clearing Account and all deposits at any time contained therein and the proceeds thereof and will take all actions necessary to maintain in favor of Borrower and of Lender, as Borrower’s assignee, a perfected first priority security interest in the Clearing Account, including, without limitation, authorizing the filing UCC-1 Financing Statements and continuations thereof. Borrower hereby grants to Lender a first-priority security interest in all of Borrower’s right, title and interest in and to the Clearing Account and all funds deposits at any time credited thereto or contained therein and the proceeds thereof and shall take all actions deemed necessary or desirable by Lender to maintain in favor of Lender a perfected first priority security interest in the Clearing Account Account, including authorizing the filing of UCC-1 Financing Statements and such proceeds. Lender and Servicer shall have the sole right to make withdrawals from the Clearing Accountcontinuations thereof. All costs and expenses for establishing and maintaining the Clearing Account shall be paid by BorrowerBorrower or Master Tenant. All funds monies now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for Master Tenant’s obligations under the Master Lease, and, to the extent of Borrower’s interest therein, additional security for the Debt. The All funds in the Clearing Account, less the reasonable fees of the Clearing Bank and any minimum balance required to be maintained therein, shall be wire transferred each Business Day (i) during the existence of a Cash Sweep Period, to the Cash Management Account and (ii) if a Cash Sweep Period does not then exist, to Master Tenant’s operating account specified pursuant to the Clearing Agreement. Upon the occurrence of a Cash Sweep Event, the Clearing Account Agreement and Clearing Account shall remain in effect until the Debt Loan has been paid repaid or defeased in full.
(b) On or before the Closing Date, Borrower shall, or shall cause Master Tenant to (or cause Manager to), execute and deliver to Lender (i) Credit Card Direction Letters to each of the Credit Card Companies to deliver all receipts payable with respect to the Property directly to the Clearing Account, and (ii) with respect to commercial Leases in existence on the date hereof, execute and deliver Tenant Direction Letters to all Tenants under such commercial Leases to deliver all Rents payable under their respective Leases directly to the Clearing Account, and deposit all Rents payable under the Master Lease directly to the Clearing Account. In connection with each commercial Lease executed after the date hereof, Borrower shall simultaneously deliver to Lender an executed Tenant Direction Letter. Lender shall hold the Credit Card Direction Letters and the Tenant Direction Letters in escrow and shall not complete and deliver them to Credit Card Companies or Tenants unless (i) a Cash Sweep Event occurs and (ii) Borrower shall have failed promptly thereafter to provide satisfactory written evidence to Lender that Borrower has delivered, or has caused Master Tenant and/or Manager to deliver, completed Credit Card Direction Letters to Credit Card Companies and Tenant Direction Letters to Tenants. Without the prior written consent of Lender, neither Borrower, Master Tenant nor Manager shall (i) terminate, amend, revoke or modify any Credit Card Direction Letter or any Tenant Direction Letter in any manner or (ii) direct or cause any Credit Card Company, Tenant or Master Tenant to pay any amount in any manner other than as provided in the Credit Card Direction Letter or Tenant Direction Letter, as applicable. After the occurrence of a Cash Sweep Event, Borrower shall, and shall cause Master Tenant to or to cause Manager to, deposit all amounts received by Borrower Borrower, Master Tenant or Manager constituting Rents (other than operating cash, not in excess of $5,000, retained for the purpose of the day-to-day operations of the Property) into the Clearing Account within two (2) Business Days after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower Master Tenant shall obtain from Clearing Bank its agreement to transfer within seven (7) on each Business Days Day all amounts on deposit in the Clearing Account at (i) during the direction existence of Borrower unless a Cash Sweep Period, to the Cash Management Account and (ii) if a Cash Sweep Period is in effectdoes not then exist, in which case such funds shall be transferred to Master Tenant’s operating account specified pursuant to the Cash Management AccountClearing Account Agreement.
(d) Upon If Lender has accelerated the occurrence Loan as a result of an Event of Default or any Bankruptcy Action of Borrower Borrower, Master Tenant, Principal or Manager, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in the Clearing Account to the payment of the Debt in any order in its sole discretion. If Lender has not accelerated the Loan notwithstanding the existence of an Event of Default or any Bankruptcy Action of Borrower, Master Tenant, Principal or Manager, Lender shall have the continuing exclusive control of, and right to withdraw and apply, the funds in the Clearing Account that would constitute rent under the Master Lease to payment of any and all debts, liabilities and obligations of Borrower to Lender pursuant to or in connection with this Agreement and the other Loan Documents, in such order, proportion and priority as Lender may determine in its sole discretion. Notwithstanding anything to the contrary contained in this Section 2.7.1(d), Lender shall make any Collected Taxes available for payment to the relevant tax authorities to the extent such Collected Taxes are required to be so remitted.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Master Tenant, Manager or Clearing BankBank and shall be an Eligible Account.
(f) Neither Borrower nor Master Tenant shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or authorize any UCC-1 Financing Statements, except those naming Lender as the secured partyparty and Borrower as Lender’s assignor, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower and/or Master Tenant, as applicable, shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any provide new Tenant Direction Notices and Credit Card Direction Letters and the other notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Each of Borrower and Master Tenant constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower and/or Master Tenant under this Section 2.7.1 in the name of Borrower and/or Master Tenant (as applicable) in the event Borrower and/or Master Tenant fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
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Clearing Account. (a) During a. Upon the term occurrence of a Monetary Event of Default, the Loan, Borrower Company shall establish and and, thereafter until the Maturity Date, maintain an Eligible Account account (the “Clearing Account”) with a bank selected by the Company and approved by the Collateral Agent (which approval shall not be unreasonably withheld, conditioned or delayed) (the “Clearing Bank Bank”) in trust for the benefit of Lenderthe Collateral Agent in accordance with an agreement among the Company, which the Collateral Agent, the Company and the Clearing Bank in form and substance reasonably acceptable to the Collateral Agent, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time (the “Clearing Account Agreement”). The Clearing Account shall be under the sole dominion and control of Lenderthe Collateral Agent. The Clearing Account shall be entitled in the name of Borrower for the benefit of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account and such proceeds. Lender and Servicer Collateral Agent shall have the sole right to make withdrawals from the Clearing Account. All costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds now or hereafter deposited into or credited the Company.
b. During the occurrence and continuance of a Monetary Event of Default, the Company shall cause all Rents to be delivered directly to the Clearing Account shall be deemed additional security for to the Debtextent permitted by the loan documents evidencing the Existing Indebtedness. The Upon the first occurrence of a Monetary Event of Default and in accordance with the Clearing Account Agreement Agreement, the Company and Clearing Account shall remain in effect until the Debt has been paid in full.
(b) Borrower Guarantor shall, and shall cause Manager their Subsidiaries to, deliver written instructions (which instructions can be revoked only upon the termination of the Event of Default) to all commercial tenants under leases (or other agreements for possession or occupancy of any property), all Subsidiaries owning property and all property managers to deliver all Rents received, payable or subject to remittance thereunder directly to the Clearing Account to the extent permitted by the loan documents evidencing the Existing Indebtedness. Notwithstanding anything to the contrary contained herein or in any other Transaction Documents, in the event the Company, the Guarantor or any of their Subsidiaries shall receive any amounts constituting Rents (for the avoidance of doubt, including, without limitation, any Rents received from any hotel occupants) during the occurrence and continuance of an Event of Default, the Company and the Guarantor shall, and shall cause their Subsidiaries to, deposit all such amounts received by Borrower the Company, the Guarantor or Manager constituting Rents any of their Subsidiaries into the Clearing Account within two (2) Business Days Day after receipt thereof. Until so deposited, all Rents received thereof to the extent permitted by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Managerloan documents evidencing the Existing Indebtedness.
(c) Borrower c. Concurrently with the establishing of a Clearing Account, the Company shall obtain from Clearing Bank its agreement to transfer within seven (7) Business Days transfer, from and after such time as the Clearing Bank has received a Cash Management Activation Notice and until such time as the Clearing Bank has received a Cash Management Deactivation Notice, all amounts on deposit in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management AccountAccount in immediately available funds by federal wire transfer once every Business Day.
(d) d. Upon the occurrence and during the continuation of an a Monetary Event of Default or any Bankruptcy Action of Borrower or ManagerDefault, Lender the Collateral Agent may, in addition to any and all other rights and remedies available to Lenderthe Collateral Agent, apply any sums amounts then present on deposit in the Clearing Account to the payment of the Debt indebtedness and other obligations evidenced hereby in any order order, proportion and priority as the Collateral Agent may determine in its sole and absolute discretion, subject, however, to the terms of Section 10.1(a) of the Note.
(e) e. The Clearing Account shall not be commingled with other monies held by Borrower, Manager the Company or Clearing Bank.
(f) Borrower f. The Company shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender the Collateral Agent as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
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Clearing Account. (a) During Upon the term occurrence of the Loana Cash Sweep Event, Borrower shall establish and maintain an Eligible Account (the “Clearing Account”) with Clearing Bank for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name of Borrower Master Tenant for the benefit of Lender. Master Tenant shall grant to Borrower, as security for Master Tenant’s obligations under the Master Lease, a first-priority security interest in the Clearing Account and all deposits at any time contained therein and the proceeds thereof and will take all actions necessary to maintain in favor of Borrower and of Lender, as Borrower’s assignee, a perfected first priority security interest in the Clearing Account, including, without limitation, authorizing the filing UCC-1 Financing Statements and continuations thereof. Borrower hereby grants to Lender a first-priority security interest in all of Borrower’s right, title and interest in and to the Clearing Account and all funds deposits at any time credited thereto or contained therein and the proceeds thereof and shall take all actions deemed necessary or desirable by Lender to maintain in favor of Lender a perfected first priority security interest in the Clearing Account Account, including authorizing the filing of UCC-1 Financing Statements and such proceeds. Lender and Servicer shall have the sole right to make withdrawals from the Clearing Accountcontinuations thereof. All costs and expenses for establishing and maintaining the Clearing Account shall be paid by BorrowerBorrower or Master Tenant. All funds monies now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for Master Tenant’s obligations under the Master Lease, and, to the extent of Borrower’s interest therein, additional security for the Debt. The All funds in the Clearing Account, less the reasonable fees of the Clearing Bank and any minimum balance required to be maintained therein, shall be wire transferred each Business Day (i) during the existence of a Cash Sweep Period, to the Cash Management Account and (ii) if a Cash Sweep Period does not then exist, to Master Tenant’s operating account specified pursuant to the Clearing Agreement. Upon the occurrence of a Cash Sweep Event, the Clearing Account Agreement and Clearing Account shall remain in effect until the Debt Loan has been paid repaid or defeased in full.
(b) On or before the Closing Date, Borrower shall, or shall cause Master Tenant to (or cause Manager to), execute and deliver to Lender (i) Credit Card Direction Letters to each of the Credit Card Companies to deliver all receipts payable with respect to the Property directly to the Clearing Account, and (ii) with respect to commercial Leases in existence on the date hereof (if any), execute and deliver Tenant Direction Letters to all Tenants under such commercial Leases to deliver all Rents payable under their respective Leases directly to the Clearing Account, and deposit all Rents payable under the Master Lease directly to the Clearing Account. In connection with each commercial Lease executed after the date hereof, Borrower shall simultaneously deliver to Lender an executed Tenant Direction Letter. Lender shall hold the Credit Card Direction Letters and the Tenant Direction Letters in escrow and shall not complete and deliver them to Credit Card Companies or Tenants unless (i) a Cash Sweep Event occurs and (ii) Borrower shall have failed promptly thereafter to provide satisfactory written evidence to Lender that Borrower has delivered, or has caused Master Tenant and/or Manager to deliver, completed Credit Card Direction Letters to Credit Card Companies and Tenant Direction Letters to Tenants. Without the prior written consent of Lender, neither Borrower, Master Tenant nor Manager shall (i) terminate, amend, revoke or modify any Credit Card Direction Letter or any Tenant Direction Letter in any manner or (ii) direct or cause any Credit Card Company, Tenant or Master Tenant to pay any amount in any manner other than as provided in the Credit Card Direction Letter or Tenant Direction Letter, as applicable. After the occurrence of a Cash Sweep Event, Borrower shall, and shall cause Master Tenant to or to cause Manager to, deposit all amounts received by Borrower Borrower, Master Tenant or Manager constituting Rents (other than operating cash, not in excess of $5,000, retained for the purpose of the day-to-day operations of the Property) into the Clearing Account within two (2) Business Days after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower Master Tenant shall obtain from Clearing Bank its agreement to transfer within seven (7) on each Business Days Day all amounts on deposit in the Clearing Account at (i) during the direction existence of Borrower unless a Cash Sweep Period, to the Cash Management Account and (ii) if a Cash Sweep Period is in effectdoes not then exist, in which case such funds shall be transferred to Master Tenant’s operating account specified pursuant to the Cash Management AccountClearing Account Agreement.
(d) Upon If Lender has accelerated the occurrence Loan as a result of an Event of Default or any Bankruptcy Action of Borrower Borrower, Master Tenant, Principal or Manager, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in the Clearing Account to the payment of the Debt in any order in its sole discretion. If Lender has not accelerated the Loan notwithstanding the existence of an Event of Default or any Bankruptcy Action of Borrower, Master Tenant, Principal or Manager, Lender shall have the continuing exclusive control of, and right to withdraw and apply, the funds in the Clearing Account that would constitute rent under the Master Lease to payment of any and all debts, liabilities and obligations of Borrower to Lender pursuant to or in connection with this Agreement and the other Loan Documents, in such order, proportion and priority as Lender may determine in its sole discretion. Notwithstanding anything to the contrary contained in this Section 2.7.1(d), Lender shall make any Collected Taxes available for payment to the relevant tax authorities to the extent such Collected Taxes are required to be so remitted.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Master Tenant, Manager or Clearing BankBank and shall be an Eligible Account.
(f) Neither Borrower nor Master Tenant shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or authorize any UCC-1 Financing Statements, except those naming Lender as the secured partyparty and Borrower as Lender’s assignor, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower and/or Master Tenant, as applicable, shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any provide new Tenant Direction Notices and Credit Card Direction Letters and the other notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Each of Borrower and Master Tenant constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower and/or Master Tenant under this Section 2.7.1 in the name of Borrower and/or Master Tenant (as applicable) in the event Borrower and/or Master Tenant fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
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Clearing Account. (aA) During the term of the Loan, Each Individual Borrower shall establish and maintain an a segregated Eligible Account (each, a “Clearing Account” and collectively, the “Clearing AccountAccounts”) with the Clearing Bank in trust for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Each Clearing Account shall be entitled in the name of Borrower each Individual Borrower, as pledgor, for the sole and exclusive benefit of Lender, as secured party, or such other name as reasonably required by Lender from time to time. Borrower (i) hereby grants to Lender a first-first priority security interest in the Clearing Account Accounts and all funds deposits at any time credited thereto or contained therein and the proceeds thereof thereof, and shall (ii) will take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account Accounts, including, without limitation, the execution of any account control agreements required by Lender. Borrower will not in any way alter, modify or close any Clearing Accounts and such proceeds. will notify Lender and Servicer shall have of the sole right to make withdrawals from the Clearing Accountaccount numbers thereof. All costs and expenses of the Clearing Bank for establishing and maintaining the Clearing Account Accounts shall be paid by Borrower. All funds monies now or hereafter deposited into or credited to the Clearing Account Accounts shall be deemed additional security for the DebtObligations.
(B) Borrower shall, and shall cause Property Manager to, deposit into the applicable Clearing Account within three (3) Business Days after receipt all amounts received by Borrower or Property Manager constituting Rents or other Receipts for each applicable Individual Property, including without limitation Borrower’s TIR Share of Tenant Insurance Revenue, and, for the avoidance of doubt, Borrower shall not be obligated to, nor shall it be obligated to cause Property Manager to, deposit any Excluded Tenant Insurance Revenue into the Clearing Account. On or before the Closing Date, Borrower shall have sent (and hereby represents that it has sent) notices (each such notice, a “Credit Card Direction Notice”) to each of the credit card companies or credit card clearing banks with which any Individual Borrower or Property Manager has entered into merchant’s or other credit card agreements (any such agreement, a “Credit Card Agreement”) directing them to pay by wire transfer or the ACH System to the applicable Clearing Account all payments which would otherwise be paid to such Individual Borrower or Property Manager under the applicable Credit Card Agreements until such time as the Obligations have been repaid in full in accordance with the terms hereof. Simultaneously with the execution of any Credit Card Agreement entered into on or after the date hereof in accordance with the applicable terms and conditions hereof, Borrower shall furnish each credit card company or credit card clearing bank party to each such Credit Card Agreement a Credit Card Direction Notice. The Clearing Account Agreement and Clearing Account Accounts shall remain in effect until the Debt Loan has been paid repaid in full.
(bC) Borrower shallSo long as no Cash Management Period exists, and shall cause Manager to, all available amounts on deposit all amounts received by Borrower or Manager constituting Rents into in the Clearing Account within two (2) Business Days after receipt thereof. Until so deposited, all Rents received by Borrower or Manager Accounts shall be held disbursed to the applicable Individual Borrower in trust for immediately available funds by Federal wire transfer once every Business Day. Upon the benefit occurrence and during the continuance of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Cash Management Period, Borrower shall obtain from (and Lender may) cause the Clearing Bank its agreement to transfer within seven (7) Business Days to the Cash Management Account in immediately available funds by Federal wire transfer all amounts on deposit in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management AccountAccounts once every Business Day.
(dD) Upon the occurrence and during the continuance of an Event of Default or any Bankruptcy Action of Borrower or ManagerDefault, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present direct Clearing Bank to immediately pay over all funds on deposit in the Clearing Account Accounts to Lender and to apply any such funds to the payment of the Debt Obligations in any order in its sole discretion.
(eE) The Funds deposited into the Clearing Account Accounts shall not be commingled with other monies held by Borrower, Manager Borrower or Clearing BankProperty Manager.
(fF) Borrower shall not further pledge, assign or grant any security interest in the any Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statementsfinancing statements, except those naming Lender as the secured party, to be filed with respect thereto.
(gG) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ attorney’s fees and expenses) arising from or in any way connected with the Clearing Account or Accounts, the Clearing Account Agreement or the performance of the obligations for which the Clearing Accounts were established (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established).
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
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Clearing Account. (a) During the term of the Loan, Borrower shall establish and maintain an Eligible Account (the “Clearing Account”) with Clearing Bank for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name of Borrower for the benefit of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds deposits at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account Account, including filing UCC-1 Financing Statements and such proceedscontinuations thereof. Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds now or hereafter deposited into or credited to monies on deposit in the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt Loan has been paid repaid in full.
(b) Borrower shall, or shall cause Manager to, (i) within ten (10) days of the Closing Date with respect to Leases in existence on the date hereof and (ii) simultaneously with the execution of any Lease entered into after the date hereof, deliver Tenant Direction Letters to all Tenants to deliver all Rents payable under their respective Leases directly to the Clearing Account. Without the prior written consent of Lender, neither Borrower nor Manager shall (i) terminate, amend, revoke or modify any Tenant Direction Letter in any manner or (ii) direct or cause any Tenant to pay any amount in any manner other than as provided in the Tenant Direction Letter. Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the Clearing Account within two (2) Business Days after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower shall obtain from Clearing Bank its agreement to transfer within seven (7) on each Business Days Day all amounts on deposit in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Account.
(d) Upon the occurrence of an Event of Default or any Bankruptcy Action of Borrower or ManagerBorrower, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in the Clearing Account to the payment of the Debt in any order in its discretion.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, and demands, and actual out-of-pocket liabilities, losses, damages (excluding, in all events, consequential, punitive, special, exemplary and indirect damages), obligations and costs and expenses (including litigation costs and reasonable out-of-pocket attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or the Clearing Account Agreement (unless arising from the gross negligence negligence, fraud or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and reasonably approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing AccountAccount and new Tenant Direction Letters. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
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Clearing Account. (a) During the term of the Loan, Borrower shall establish and maintain an Eligible Account account (the “Clearing Account”) with Clearing Bank in trust for the benefit of Lender, which Lender in accordance with the Clearing Account Agreement. The Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name of Borrower for the benefit of Lender. Borrower hereby grants to Lender During a first-priority security interest in the Clearing Account and all funds at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account and such proceeds. Cash Management Trigger Event Period, Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. Provided that no Cash Management Trigger Event Period is then in effect, Clearing Bank shall disburse all funds in the Clearing Account to Borrower in accordance with the Clearing Account Agreement. All costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt has been paid in full.
(b) Borrower shall cause all Rents to be delivered directly to the Clearing Account. In accordance with the Clearing Account Agreement, Borrower shall, or shall cause Manager to, deliver irrevocable written instructions to all tenants under Leases to deliver all Rents payable thereunder directly to the Clearing Account. Notwithstanding anything to the contrary contained herein or in any other Loan Documents, in the event Borrower or Manager shall receive any amounts constituting Rents, Borrower shall, and shall cause Manager to, deposit all such amounts received by Borrower or Manager constituting Rents into the Clearing Account within two one (21) Business Days Day after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower shall obtain from Clearing Bank its agreement to transfer within seven (7) Business Days transfer, from and after such time as Clearing Bank has received a Cash Management Activation Notice and until such time as Clearing Bank has received a Cash Management De-Activation Notice, all amounts on deposit in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management AccountAccount in immediately available funds by federal wire transfer once every Business Day.
(d) Upon the occurrence and during the continuation of an Event of Default or any Bankruptcy Action of Borrower or ManagerDefault, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums amounts then present on deposit in the Clearing Account to the payment of the Debt in any order order, proportion and priority as Lender may determine in its sole and absolute discretion.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager Borrower or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or and/or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 1 contract
Clearing Account. (a) During the term of the Loan, Borrower shall establish and maintain an Eligible Account (the “Clearing Account”) with Clearing Bank for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled titled in the name of Borrower for the benefit of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account and such proceeds. Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt has been paid in full.
(b) Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the Clearing Account within two (2) Business Days after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower and Lender shall obtain from jointly instruct Clearing Bank its agreement to transfer within seven (7) on every Business Days Day all amounts on deposit in the Clearing Account to one or more accounts held by Borrower and at the direction of Borrower Borrower, unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Account. Notwithstanding the provisions of this paragraph, Lender shall collect the Monthly Debt Service Payment Amount from the Clearing Bank on each Payment Date.
(d) Upon the occurrence of an Event of Default or any Bankruptcy Action of Borrower or ManagerManager beyond any applicable cure period, Lender may, in addition to any and all other rights and remedies available to Lender, apply declare that a Cash Sweep Period is in effect, and instruct Clearing Bank to transfer any sums then present in the Clearing Account to the payment of the Debt in any order in its discretionCash Management Account.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 1 contract
Samples: Commercial Loan Agreement (Red Oak Capital Fund V, LLC)
Clearing Account. (a) During Borrower shall establish and maintain the Clearing Account with the Clearing Bank on or prior to the Closing Date, and thereafter Borrower shall maintain the Clearing Account at all times during the remainder of the term of the Loan, Borrower shall establish and maintain an Eligible Account (the “Clearing Account”) with Clearing Bank for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name “Acadia Atlantic Avenue LLC, as Borrower and Bear Xxxxxxx Commercial Mortgage, Inc., as Lender, pursuant to Loan Agreement dated as of Borrower for the benefit of LenderDecember 26, 2007 - Clearing Account”. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds deposits at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in thereof. All monies now or hereafter deposited into the Clearing Account shall be deemed additional security for the Debt.
(b) Borrower shall obtain from the Clearing Bank and such proceeds. deliver to Lender an agreement, in form and Servicer substance satisfactory to Lender (the “Clearing Account Agreement”), pursuant to which: (i) Borrower and Clearing Bank acknowledge and agree that during a Cash Trap Period, Lender shall have the sole right to make withdrawals from the Clearing Account. All Account and all costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All ; (ii) upon notice from Lender that a Cash Trap Period exists, the Clearing Bank agrees to transfer to the Cash Management Account in immediately available funds now by federal wire transfer all amounts on deposit in the Clearing Account once every Business Day during the term of the Loan.
(c) Borrower shall (i) deliver irrevocable written instructions to all tenants under Leases to deliver all Rents (including additional rent, payable thereunder directly to the Clearing Account, and (ii) deliver irrevocable written instructions to each of the credit card companies or hereafter deposited credit card clearing banks with which Borrower or Manager has entered into or credited merchant’s agreements to deliver all receipts payable with respect to the Property directly to the Clearing Account (collectively, the “Payment Direction Letters.”). Borrower and Manager shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt has been paid in full.
(b) Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the Clearing Account within two one (21) Business Days Day after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower shall obtain from Clearing Bank its agreement to transfer within seven (7) Business Days all amounts on deposit in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Account.
(d) Upon the occurrence of an Event of Default or any Bankruptcy Action of Borrower or ManagerDefault, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in the Clearing Account to the payment of the Debt in any order in its sole discretion.
(e) The Clearing Account shall be an Eligible Account and shall not be commingled with other monies held by Borrower, Manager Borrower or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ attorneys fees and expenses) arising from or in any way connected with the Clearing Account or and/or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 1 contract
Clearing Account. (a) During the term of the Loan, Borrower shall establish and maintain an Eligible Account (the “Clearing Account”) with Clearing Bank for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Subject to Section 2.5.2(e), the Clearing Account shall be entitled in the name of Borrower ARHC FMMUNIN01, LLC Et. Al. for the benefit of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds deposits at any time credited thereto or contained therein and the proceeds thereof and shall take all actions reasonably necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account Account, including (at Lxxxxx’s request) filing UCC-1 Financing Statements and such proceedscontinuations thereof. Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All actual, reasonable costs and expenses for establishing and maintaining the Clearing Account shall be paid by BorrowerBxxxxxxx. All funds now or hereafter deposited into or credited to monies on deposit in the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt Loan has been paid repaid in full.
(b) Borrower shall, or shall cause Manager to, (i) within ten (10) days of the Closing Date with respect to Leases in existence on the date hereof and (ii) simultaneously with the execution of any Lease entered into after the date hereof, deliver Tenant Direction Letters to all Tenants, directing such Tenants to deliver all Rents payable under their respective Leases directly to the Clearing Account. Without the prior written consent of Lender (except in connection with the delivery to Tenants of a Released Property following satisfaction of the conditions set forth in Section 2.5.2 with respect to such Released Property), neither Borrower nor Manager shall (i) terminate, amend, revoke or modify any Tenant Direction Letter in any manner or (ii) direct or cause any Tenant to pay any amount in any manner other than as provided in the Tenant Direction Letter. Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the Clearing Account within two one (21) Business Days Day after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower The Clearing Account Agreement shall obtain from provide that Clearing Bank its agreement to shall transfer within seven (7) on each Business Days Day all amounts on deposit in the Clearing Account at the direction of Borrower (including a transfer to Borrower) unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Account.
(d) Upon During the occurrence continuance of an Event of Default or any Bankruptcy Action of Borrower or ManagerBorrower, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in the Clearing Account to the payment of the Debt in any order in its discretion. Upon cessation (or waiver) of such Event of Default or Bankruptcy Action, all such funds (to the extent same have not been applied to the Debt) shall be returned to the Clearing Account.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, and demands, and actual out-of-pocket liabilities, losses, damages (excluding, consequential, punitive, special, exemplary and indirect damages, except to the extent such damages are actually paid or payable to a third-party), obligations and reasonable, actual costs and expenses (including litigation costs and reasonable out-of-pocket attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or the Clearing Account Agreement (unless arising from the gross negligence negligence, fraud or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established).
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender in accordance with the terms and conditions thereof or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender Lxxxxx and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes Account and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revokednew Tenant Direction Letters.
Appears in 1 contract
Clearing Account. (a) During the term of the Loan, Borrower shall establish and maintain an Eligible Account (the “Clearing Account”) with Clearing Bank for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Subject to Section 2.5.2(e), the Clearing Account shall be entitled in the name of Borrower AHRC CPCLPIN01, LLC, for the benefit of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds deposits at any time credited thereto or contained therein and the proceeds thereof and shall take all actions reasonably necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account Account, including (at Xxxxxx’s request) filing UCC-1 Financing Statements and such proceedscontinuations thereof. Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All actual, reasonable costs and expenses for establishing and maintaining the Clearing Account shall be paid by BorrowerXxxxxxxx. All funds now or hereafter deposited into or credited to monies on deposit in the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt Loan has been paid repaid in full.. 51 0123905.0782082 4863-1270-3898v11
(b) Borrower shall, or shall cause Manager to, (i) within ten (10) days of the Closing Date with respect to Leases in existence on the date hereof and (ii) simultaneously with the execution of any Lease entered into after the date hereof, deliver Tenant Direction Letters to all Tenants, directing such Tenants to deliver all Rents payable under their respective Leases directly to the Clearing Account. Without the prior written consent of Xxxxxx (except in connection with the delivery to Tenants of a Released Property following satisfaction of the conditions set forth in Section 2.5.2 with respect to such Released Property), neither Borrower nor Manager shall (i) terminate, amend, revoke or modify any Tenant Direction Letter in any manner or (ii) direct or cause any Tenant to pay any amount in any manner other than as provided in the Tenant Direction Letter. Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the Clearing Account within two one (21) Business Days Day after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager. Notwithstanding the foregoing terms of this Section 2.6.1 or anything to the contrary in the other Loan Documents (including the Cash Management Agreement), and without limiting Borrower’s obligation to cause all amounts received by Borrower or Manager constituting Rents to be deposited into the Clearing Account within one (1) Business Day after receipt thereof, Borrower shall not be required to send Tenant Direction Letters to the Tenants that use VersaPay to pay their Rent, provided that Borrower shall (using VersaPay) direct all such Rent to the Clearing Account.
(c) Borrower The Clearing Account Agreement shall obtain from provide that Clearing Bank its agreement to shall transfer within seven (7) on each Business Days Day all amounts on deposit in the Clearing Account at the direction of Borrower (including a transfer to Borrower) unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Account.
(d) Upon During the occurrence continuance of an Event of Default or any Bankruptcy Action of Borrower or ManagerBorrower, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in the Clearing Account to the payment of the Debt in any order in its discretion. Upon cessation (or waiver) of such Event of Default or Bankruptcy Action, all such funds (to the extent same have not been applied to the Debt) shall be returned to the Clearing Account.
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, and demands, and actual out-of-pocket liabilities, losses, damages (excluding, consequential, punitive, special, exemplary and indirect damages, except to the extent such damages are actually paid or payable to a third-party), obligations and reasonable, actual costs and expenses (including litigation costs and reasonable out-of-pocket attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or the Clearing Account Agreement (unless arising from the gross negligence negligence, fraud or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.). 52 0123905.0782082 4863-1270-3898v11
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender in accordance with the terms and conditions thereof or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender Xxxxxx and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes Account and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revokednew Tenant Direction Letters.
Appears in 1 contract
Clearing Account. (a) During the term of the Loan, Borrower shall establish and maintain an Eligible Account (the “Clearing Account”) with Clearing Bank for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name of Borrower for the benefit of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds deposits at any time credited thereto or contained therein and the proceeds thereof and shall take (or shall authorize Lender to take) all actions reasonably necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account Account, including filing UCC-1 Financing Statements and such proceedscontinuations thereof. Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All reasonable and customary costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds monies now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt Loan has been paid repaid in full.
(b) Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the Clearing Account within two (2) Business Days after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower shall obtain from Clearing Bank its agreement to transfer within seven (7) on each Business Days Day all amounts on deposit in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Account.
(d) Upon the occurrence and during the continuance of an Event of Default or any Bankruptcy Action of Borrower or Manager, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in the Clearing Account to the payment of the Debt in any order in its discretion...
(e) The Clearing Account shall not be commingled with other monies held by Borrower, Manager or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and the reasonable and documented out-of-pocket costs and expenses (including litigation costs and reasonable attorneys’ fees and expensesexpenses for outside counsel) arising from or in any way connected with the Clearing Account or the Clearing Account Agreement (unless arising from the gross negligence negligence, willful misconduct, or willful misconduct bad faith of Lender) or the performance of the obligations for which the Clearing Account was established.
(h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender in accordance with the terms and conditions of the Loan Documents or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and reasonably approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the samesame as required hereunder. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 1 contract
Clearing Account. (a) During the term of the Loan, Borrower shall establish and maintain an a segregated Eligible Account (the “Clearing Account”) with the Clearing Bank in trust for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name of Borrower “KAUAI COCONUT BEACH, LLC AND KAUAI COCONUT BEACH OPERATOR, LLC, as pledgor, for the benefit of LenderTH COMMERCIAL MORTGAGE LLC, as Secured Party – Clearing Account,” or such other name as required by Lender from time to time. Borrower (i) hereby grants to Lender a first-first priority security interest in the Clearing Account and all funds deposits at any time credited thereto or contained therein and the proceeds thereof thereof, and shall (ii) will take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account, including, without limitation, the execution of any account control agreement required by Lender. Borrower will not in any way alter, modify or close the Clearing Account and such proceedswill notify Lender of the account number thereof. Except as may be expressly permitted in the Clearing Account Agreement, Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All Account and all costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds monies now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the DebtObligations.
(b) Borrower shall, or shall cause Manager to, deliver written instructions to (i) all Tenants under Leases, to deliver all Rents payable thereunder and (ii) all issuers of credit cards accepted at the Property, to cause all sums payable by such issuers to be transmitted directly to the Clearing Account. Borrower shall, and shall cause Manager to, deposit into the Clearing Account within one (1) Business Day after receipt all amounts received by Borrower or Manager constituting Rents (including, for the avoidance of doubt, any Operating Rent). The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt Loan has been paid repaid in full.
(bc) During any Cash Trap Period, Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager constituting Rents into the Clearing Account within two (2) Business Days after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall be held in trust for the benefit of Lender and shall not be commingled with any other funds or property of Borrower or Manager.
(c) Borrower shall obtain from Clearing Bank its agreement to transfer within seven (7) Business Days to the Cash Management Account in immediately available funds by federal wire transfer all amounts on deposit in the Clearing Account at once every Business Day (less any required minimum balance pursuant to the direction terms of Borrower unless a the Clearing Account Agreement). If no Cash Sweep Trap Period is then continuing, funds in effect, in which case such funds the Clearing Account shall be transferred available to the Cash Management AccountBorrower daily.
(d) Upon the occurrence of an Event of Default or any Bankruptcy Action of Borrower or ManagerDefault, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present direct the Clearing Bank to immediately pay over all funds on deposit in the Clearing Account to Lender and to apply any such funds to the payment of the Debt in any order in its sole discretion.
(e) The Funds deposited into the Clearing Account shall not be commingled with other monies held by Borrower, Manager or the Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statementsfinancing statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and the Clearing Bank and hold Lender and the Clearing Bank harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with the Clearing Account or Account, the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
established (h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) unless arising from the gross negligence or willful misconduct of Lender or the Clearing Account ceasing to be an Eligible AccountBank, (iii) any resignation by Clearing Bank or termination of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lenderas applicable), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 1 contract
Samples: Loan Agreement (Lightstone Value Plus Real Estate Investment Trust V, Inc.)
Clearing Account. (a) During the term of the Loan, Borrower shall establish and maintain an a segregated Eligible Account (the “Clearing Account”) with the Clearing Bank in trust for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Lender. The Clearing Account shall be entitled in the name of Borrower “INLAND DIVERSIFIED LAS VEGAS CENTENNIAL CENTER, L.L.C., as pledgor, for the benefit of LenderCantor Commercial Real Estate Lending, L.P., as Secured Party — Clearing Account,” or such other name as required by Lender from time to time. Borrower (i) hereby grants to Lender a first-first priority security interest in the Clearing Account and all funds deposits at any time credited thereto or contained therein and the proceeds thereof thereof, and shall (ii) will take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account, including, without limitation, the execution of any account control agreement required by Lender. Borrower will not in any way alter, modify or close the Clearing Account and such proceedswill notify Lender of the account number thereof. Except as may be expressly permitted in the Clearing Account Agreement, Lender and Servicer shall have the sole right to make withdrawals from the Clearing Account. All Account and all costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds monies now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the Debt.
(b) Within five (5) Business Days of the Closing Date, Borrower shall, or shall cause Manager to, deliver Payment Direction Letters to all Tenants under Leases directing such Tenants to deliver all Rents payable thereunder directly to the Clearing Account and Borrower shall, or shall cause Manager to, direct all Tenants under Leases entered into after the Closing Date to deliver all Rents payable under such new Lease directly to the Clearing Account. Borrower shall, and shall cause Manager to, deposit into the Clearing Account within one (1) Business Day after receipt all amounts received by Borrower or Manager constituting Rents. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt Loan has been paid repaid in full.
(bc) Borrower shallSo long as no Cash Management Period and no Event of Default shall have occurred and be continuing, and shall cause Manager to, amounts on deposit all amounts received by Borrower or Manager constituting Rents into in the Clearing Account within two (2) Business Days after receipt thereof. Until so deposited, all Rents received shall be transferred to an account designated by Borrower or Manager shall be held in trust for accordance with the benefit terms of Lender and shall not be commingled with the Clearing Account Agreement. During any other funds or property of Borrower or Manager.
(c) Cash Management Period, Borrower shall obtain from cause the Clearing Bank its agreement to transfer within seven (7) Business Days to the Cash Management Account in immediately available funds by Federal wire transfer all amounts on deposit in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Accountonce every Business Day.
(d) Upon the occurrence of an Event of Default or any Bankruptcy Action of Borrower or ManagerDefault, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present direct Clearing Bank to immediately pay over all funds on deposit in the Clearing Account to Lender and to apply any such funds to the payment of the Debt in any order in its sole discretion.
(e) The Funds deposited into the Clearing Account shall not be commingled with other monies held by Borrower, Manager or Clearing Bank.
(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statementsfinancing statements, except those naming Lender as the secured party, to be filed with respect thereto.
(g) Borrower shall indemnify Lender and Clearing Bank and hold Lender and Clearing Bank harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ attorneys fees and expenses) arising from or in any way connected with the Clearing Account or Account, the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was established.
established (h) Upon (i) Clearing Bank ceasing to be an Eligible Institution, (ii) unless arising from the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank gross negligence or termination willful misconduct of the Clearing Account Agreement by Clearing Bank or Lender or (iv) the occurrence and continuance of an Event of DefaultClearing Bank, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lenderas applicable), (C) cause such Clearing Bank to open a new Clearing Account (which such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Account. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
Appears in 1 contract
Samples: Loan Agreement (Inland Diversified Real Estate Trust, Inc.)
Clearing Account. (a) During the term of the Loan, Borrower shall establish and maintain an Eligible Account (the “Clearing Account”) with Clearing Bank for the benefit of Lender, which The Clearing Account shall will be under the sole dominion and control of Lendertitled as follows: [BORROWER’S NAME] CLEARING ACCOUNT, AS MORTGAGOR, FOR THE BENEFIT OF [LENDER’S NAME], AS MORTGAGEE. The Clearing Account shall will be entitled in the name of Borrower for the benefit of Lender. Borrower hereby grants to Lender a first-priority security interest in the Clearing Account and all funds at any time credited thereto or contained therein and the proceeds thereof and shall take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Clearing Account and such proceeds. Lender and Servicer shall have the sole right to make withdrawals from the Clearing maintained as an Eligible Account. All costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All funds now or hereafter deposited into or credited to the Clearing Account shall be deemed additional security for the Debt. The Clearing Account Agreement and Clearing Account shall remain in effect until the Debt has been paid in full.
(b) The Clearing Account will be assigned the Borrower shall, and shall cause Manager to, deposit all amounts Federal Tax ID Number.
(c) Any Receipt from the Property received by Borrower or [ADD IF APPLICABLE: Operator or] Manager constituting Rents into (i) will be deemed to be collateral for the Clearing Account within two (2) Business Days after receipt thereof. Until so deposited, all Rents received by Borrower or Manager shall Loan and will be held in trust for the benefit benefit, and as the property, of Lender Lender, and shall (ii) will not be commingled with any other funds or property of Borrower or [ADD IF APPLICABLE: Operator or] Manager.
(c) Borrower shall obtain from Clearing Bank its agreement to transfer within seven (7) Business Days all amounts on deposit in the Clearing Account at the direction of Borrower unless a Cash Sweep Period is in effect, in which case such funds shall be transferred to the Cash Management Account.
(d) Upon the occurrence of an Event of Default or any Bankruptcy Action of Borrower or Manager, Lender may, in addition to any and and/or [ADD IF APPLICABLE: Operator and/or] Manager will deposit all other rights and remedies available to Lender, apply any sums then present in Receipts into the Clearing Account to the payment within one Business Day of the Debt in any order in its discretionreceipt.
(e) The In each month during the term of the Loan, beginning on the first Business Day after there are Available Funds in the Clearing Account shall not be commingled with other monies held by BorrowerAccount, Manager or Clearing BankBank will make a Daily Borrower Sweep of all Available Funds until Clearing Bank receives a Notice of Commencement of Lender Sweep Period.
(f) Borrower shall not further pledgeNotwithstanding anything contained in Section 3(e) to the contrary, assign from and after the date on which Clearing Bank receives a Notice of Commencement of Lender Sweep Period, Clearing Bank will disburse all Available Funds on each Business Day to the Deposit Account designated in writing by Lender or grant any security interest in the Designee until such time as Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Bank has received a Notice of Termination of Lender as the secured party, to be filed with respect theretoSweep Period.
(g) Borrower shall indemnify Lender Simultaneously with any transfer to the Deposit Account, Clearing Bank will send (or make available via electronic information reporting system) to [ADD IF APPLICABLE: Operator,] Manager, Lender, Designee and hold Lender harmless from and against any and all actionsBorrower, suitsvia telecopy, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from a wire transfer or in any way connected with ACH System advice setting forth the Clearing Account or the Clearing Account Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Clearing Account was establishedamount transferred.
(h) Upon Lender’s request, Borrower will provide a written statement to Lender itemizing any amounts deposited in the Clearing Account by Borrower or [ADD IF APPLICABLE: Operator or] Manager for the period covered by Lender’s request and such supporting documentation as Lender may reasonably require.
(i) Clearing Bank ceasing to be an Eligible InstitutionBorrower represents and warrants that there are no other accounts maintained by Borrower, (ii) [ADD IF APPLICABLE: Operator,] Manager, or any other Person into which revenues from the Clearing Account ceasing to be an Eligible Account, (iii) any resignation by Clearing Bank or termination ownership and operation of the Clearing Account Agreement by Clearing Bank Property are deposited. So long as the Note is outstanding, Borrower, [ADD IF APPLICABLE: Operator,] Manager, or Lender or (iv) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Lender’s written request, (A) terminate the existing Clearing Account Agreement, (B) appoint a new Clearing Bank (which such Clearing Bank shall (I) be an Eligible Institution, (II) any other than during the continuance of an Event of Default, be selected by Borrower and approved by Lender and (III) during the continuance of an Event of Default, be selected by Lender), (C) cause such Clearing Bank to Person will not open a new Clearing Account (which any other such account shall be an Eligible Account) and enter into a new Clearing Account Agreement with Lender on substantially for the same terms and conditions as the previous Clearing Account Agreement and (D) send any notices required pursuant to the terms hereof relating to such new Clearing Account Agreement and Clearing Accountdeposit of Receipts. Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake any action required of Borrower under this Section 2.7.1 in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall Borrower’s operating account will not be deemed to be a power coupled with an interest and cannot be revokedaccount into which Receipts are deposited.
Appears in 1 contract
Samples: Cash Management Agreement
