Common use of Demand Note Clause in Contracts

Demand Note. (a) On the date hereof, the Borrower will deliver the Demand Note to the Lender. The Borrower hereby authorizes the Lender to demand payment on the Demand Note at any time during the period commencing on the date hereof and ending on the Final Collection Date, and hereby acknowledges and agrees that the Lender may exercise any and all rights and remedies of the Borrower under or in connection with the Demand Note, including, without limitation, any and all rights of the Borrower to demand or otherwise require payment of any amount under, or performance of any provision of, the Demand Note; provided that notwithstanding the foregoing, the Lender agrees that it will not demand payment on the Demand Note after either the Revolving Loan Commitment Termination Date or Term Loan Commitment Termination Date, as applicable, so long as all of the following conditions are satisfied: (i) with respect to the Revolving Loan Commitment Termination Date, (a) the Revolving Loan Commitment Termination Date did not occur solely as a result of the declaration or automatic occurrence of the Revolving Loan Commitment Termination Date pursuant to either clause (i) or clause (ii) of the definition thereof, (b) at all times following the Revolving Loan Commitment Termination Date, the Outstanding Revolving Loan Amount is less than the Borrowing Base (Revolving Loans), and (c) no Event of Termination or Servicer Default has occurred and is continuing and (ii) with respect to the Term Loan Commitment Termination Date, (a) the Term Loan Commitment Termination Date did not occur solely as a result of the declaration or automatic occurrence of the Term Loan Commitment Termination Date pursuant to clause (i) of the definition thereof, (b) at all times following the Term Loan Commitment Termination Date, the Outstanding Term Loan Amount is less than the Borrowing Base (Term Loans), and (c) no Event of Termination or Servicer Default has occurred and is continuing. The Lender shall deposit all amounts received from DTAC under the Demand Note to the Collection Account and such amounts shall be treated as Collections for purposes of Sections 2.07 and 2.08 hereof, as determined by the Lender in its sole discretion. (b) The Borrower agrees (i) to instruct DTAC to comply with the instructions of the Lender as described in this Section, (ii) to instruct DTAC that no payment shall be made under the Demand Note other than at the direction of the Lender and (iii) if the Borrower shall receive any payment from DTAC under the Demand Note, it shall so notify the Lender and deposit such payments into the Collection Account or as otherwise directed by the Lender within one Business Day following receipt thereof. Any payment received by the Borrower under or in connection with the Demand Note shall be received in trust for the benefit of the Lender, shall be segregated from other funds of the Borrower and shall be forthwith paid over to the Lender in the same form received (with any necessary endorsement). During the period from the date hereof until the Final Collection Date, the Borrower will not consent to any amendment or modification of the Demand Note without the prior written consent of the Lender. (c) The Borrower hereby irrevocably appoints the Lender as the Borrower’s attorney-in-fact, with full authority in the place and stead of the Borrower and in the name of the Borrower or otherwise, from time to time to take any action and to execute any instrument which the Lender may deem necessary or appropriate in order to exercise its remedies hereunder with respect to the Demand Note, including, without limitation, (i) to ask, demand, collect, xxx for, recover, compromise, receive and give acquittance and receipts for money’s due and to become due under or in connection with the Demand Note, (ii) to receive, indorse and collect any drafts or other instruments, documents, security certificates and chattel paper in connection therewith, and (iii) to file any claims or take any action or institute proceeding which the Lender may deem necessary or desirable for the collection of the Demand Note or otherwise to enforce compliance with the terms, conditions or rights of the Lender with respect to the Demand Note. (d) The powers conferred on the Lender pursuant to this Section are solely to protect its interest in the Demand Note and shall not impose any duty upon it to exercise any such powers. Except for the accounting for moneys actually received by it hereunder, the Lender shall have no duty with respect to the Demand Note, as to ascertaining or taking any action with respect to matters relative to the Demand Note, whether or not the Lender is deemed to have knowledge of such matters, or as to the taking of any necessary steps to preserve rights against other parties or any other rights pertaining to the Demand Note.

Demand Note. (a) On the date hereof, the Borrower will deliver the Demand Note to the Lender. The Borrower hereby authorizes the Lender to demand payment on the Demand Note at any time during the period commencing on the date hereof and ending on the Final Collection Date, and hereby acknowledges and agrees that the Lender may exercise any and all rights and remedies of the Borrower under or in connection with the Demand Note, including, without limitation, any and all rights of the Borrower to demand or otherwise require payment of any amount under, or performance of any provision of, the Demand Note; provided that notwithstanding the foregoing, the Lender agrees that it will not demand payment on the Demand Note after either the Revolving Loan Commitment Termination Date or Term Loan Commitment Termination Date, as applicable, so long as all of the following conditions are satisfied: (i) with respect to the Revolving Loan Commitment Termination Date, (a) the Revolving Loan Commitment Termination Date did not occur solely as a result of the declaration or automatic occurrence of the Revolving Loan Commitment Termination Date pursuant to either clause (i) or clause (ii) of the definition thereof, (b) at all times following the Revolving Loan Commitment Termination Date, the Outstanding Revolving Loan Amount is less than the Borrowing Base (Revolving Loans), and (c) no Event of Termination or Servicer Default has occurred and is continuing and (ii) with respect to the Term Loan Commitment Termination Date, (a) the Term Loan Commitment Termination Date did not occur solely as a result of the declaration or automatic occurrence of the Term Loan Commitment Termination Date pursuant to clause (i) of the definition thereof, (b) at all times following the Term Loan Commitment Termination Date, the Outstanding Term Loan Amount is less than the Borrowing Base (Term Loans), and (c) no Event of Termination or Servicer Default has occurred and is continuing. The Lender shall deposit all amounts received from DTAC under the Demand Note to the Collection Account and such amounts shall be treated as Collections for purposes of Sections 2.07 and 2.08 hereof, as determined by the Lender in its sole discretion. (b) The Borrower agrees (i) to instruct DTAC to comply with the instructions of the Lender as described in this Section, (ii) to instruct DTAC that no payment shall be made under the Demand Note other than at the direction of the Lender and (iii) if the Borrower shall receive any payment from DTAC under the Demand Note, it shall so notify the Lender and deposit such payments into the Collection Account or as otherwise directed by the Lender within one Business Day following receipt thereof. Any payment received by the Borrower under or in connection with the Demand Note shall be received in trust for the benefit of the Lender, shall be segregated from other funds of the Borrower and shall be forthwith paid over to the Lender in the same form received (with any necessary endorsement). During the period from the date hereof until the Final Collection Date, the Borrower will not consent to any amendment or modification of the Demand Note without the prior written consent of the Lender. (c) The Borrower hereby irrevocably appoints the Lender as the Borrower’s attorney-in-fact, with full authority in the place and stead of the Borrower and in the name of the Borrower or otherwise, from time to time to take any action and to execute any instrument which the Lender may deem necessary or appropriate in order to exercise its remedies hereunder with respect to the Demand Note, including, without limitation, (i) to ask, demand, collect, xxx for, recover, compromise, receive and give acquittance and receipts for money’s due and to become due under or in connection with the Demand Note, (ii) to receive, indorse and collect any drafts or other instruments, documents, security certificates and chattel paper in connection therewith, and (iii) to file any claims or take any action or institute proceeding which the Lender may deem necessary or desirable for the collection of the Demand Note or otherwise to enforce compliance with the terms, conditions or rights of the Lender with respect to the Demand Note. (d) The powers conferred on the Lender pursuant to this Section are solely to protect its interest in the Demand Note and shall not impose any duty upon it to exercise any such powers. Except for the accounting for moneys actually received by it hereunder, the Lender shall have no duty with respect to the Demand Note, as to ascertaining or taking any action with respect to matters relative to the Demand Note, whether or not the Lender is deemed to have knowledge of such - 47 - matters, or as to the taking of any necessary steps to preserve rights against other parties or any other rights pertaining to the Demand Note.