Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent and Borrower agree as follows: (a) Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender. (b) Upon the occurrence and during the continuance of an Event of Default hereunder or under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply), Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account an amount not less than all Rent payable under the applicable Operating Lease for the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating Company. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral Agent. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documents, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth Mezzanine Lender or to an account designated by the Fifth Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other Mezzanine Lender); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuing, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer shall have the right to retain such excess as collateral for the Loan and/or apply (or cause to be applied) such excess to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreement, Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the Debt. Each of Collateral Agent and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b). (c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent or Servicer (on behalf of Mortgage Lender) shall have the right to direct the Collection Bank on behalf of Mortgage Borrower. Collateral Agent and Servicer shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts to the payment of the Debt. (d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts.
Appears in 1 contract
Samples: Fourth Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall have the right to collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) Lender as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent Lender and Borrower agree as follows:
(a) Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender.
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or hereunder, under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply)Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account Account, an amount not less than all Rent payable under the applicable Operating Lease for the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount, the Monthly Ground Rent Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer Lender shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating CompanyBorrower. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral AgentLender. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documentshereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth Third Mezzanine Lender (or to an account designated by the Fifth Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other Third Mezzanine Lender); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuingcontinuing hereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer Lender shall have the right to retain such excess the amount so remitted to the Collection Account as collateral for the Loan and/or apply (or cause to be applied) such excess amount to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreementherein (including, without limitation, Section 9.4(a) hereof), Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the DebtBorrower. Each of Collateral Agent Lender and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or and/or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) transfer all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent Lender (or Servicer (on behalf Lender in the event of Mortgage Lender’s failure to so instruct) shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower. Collateral Agent and Servicer Lender shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts amount to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the Lender’s security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts, if any.
Appears in 1 contract
Samples: Second Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall have the right to collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) Lender as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent Lender and Borrower agree as follows:
(a) Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender.
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or hereunder, under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply)Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account Account, an amount not less than all Rent payable under the applicable Operating Lease for the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount, the Monthly Ground Rent Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer Lender shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating CompanyBorrower. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral AgentLender. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documentshereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth Mezzanine Lender (or to an account designated by the Fifth Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other Mezzanine Lender); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuingcontinuing hereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer Lender shall have the right to retain such excess the amount so remitted to the Collection Account as collateral for the Loan and/or apply (or cause to be applied) such excess amount to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreementherein (including, without limitation, Section 9.4(a) hereof), Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the DebtBorrower. Each of Collateral Agent Lender and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or and/or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) transfer all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent Lender (or Servicer (on behalf Lender in the event of Mortgage Lender’s failure to so instruct) shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower. Collateral Agent and Servicer Lender shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts amount to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the Lender’s security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts, if any.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall have the right to collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) Lender as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent Lender and Borrower agree as follows:
(a) Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender.
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or hereunder, under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply)Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account an amount not less than Account, all Rent payable under the applicable Operating Lease for such the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount, the Monthly Ground Rent Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer Lender shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating CompanyBorrower. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral AgentLender. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documentshereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth Second Mezzanine Lender (or to an account designated by the Fifth Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other Second Mezzanine Lender); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuingcontinuing hereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer Lender shall have the right to retain such excess as collateral for the Loan and/or apply (or cause to be applied) such excess to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreement, Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the Debt. Each of Collateral Agent and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) transfer all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent Lender (or Servicer (on behalf Lender in the event of Mortgage Lender’s failure to so instruct) shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower. Collateral Agent and Servicer Lender shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts amount to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the Lender’s security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts.
Appears in 1 contract
Samples: First Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall have the right to collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) Lender as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent Lender and Borrower agree as follows:
(a) Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender.
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or hereunder, under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply)Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account an amount not less than Account, all Rent payable under the applicable Operating Lease for the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount, the Monthly Ground Rent Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer Lender shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating CompanyBorrower. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral AgentLender. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documentshereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth Third Mezzanine Lender (or to an account designated by the Fifth Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other Third Mezzanine Lender); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuingcontinuing hereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer Lender shall have the right to retain such excess the amount so remitted to the Collection Account as collateral for the Loan and/or apply (or cause to be applied) such excess amount to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreement, Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the Debt. Each of Collateral Agent and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) transfer all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent Lender (or Servicer (on behalf Lender in the event of Mortgage Lender’s failure to so instruct) shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower. Collateral Agent and Servicer Lender shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts amount to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the Lender’s security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts, if any.
Appears in 1 contract
Samples: Second Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall have the right to collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) Lender as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent Lender and Borrower agree as follows:
(a) Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender.
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or hereunder, under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply)Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account an amount not less than Account, all Rent payable under the applicable Operating Lease for the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount, the Monthly Ground Rent Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer Lender shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating CompanyBorrower. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral AgentLender. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documentshereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth Seventh Mezzanine Lender (or to an account designated by the Fifth Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other Seventh Mezzanine Lender); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuingcontinuing hereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer Lender shall have the right to retain such excess the amount so remitted to the Collection Account as collateral for the Loan and/or apply (or cause to be applied) such excess amount to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreement, Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the Debt. Each of Collateral Agent and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) transfer all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent Lender (or Servicer (on behalf Lender in the event of Mortgage Lender’s failure to so instruct) shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower. Collateral Agent and Servicer Lender shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts excess to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the Lender’s security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts, if any.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall have the right to collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) Lender as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent Lender and Borrower agree as follows:
(a) Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender.
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or hereunder, under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply)Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account Account, an amount not less than all Rent payable under the applicable Operating Lease for the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount, the Monthly Ground Rent Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer Lender shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating CompanyBorrower. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral AgentLender. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documentshereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth Seventh Mezzanine Lender (or to an account designated by the Fifth Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other Seventh Mezzanine Lender); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuingcontinuing hereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer Lender shall have the right to retain such excess the amount so remitted to the Collection Account as collateral for the Loan and/or apply (or cause to be applied) such excess amount to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreementherein (including, without limitation, Section 9.4(a) hereof), Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the DebtBorrower. Each of Collateral Agent Lender and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or and/or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) transfer all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent Lender (or Servicer (on behalf Lender in the event of Mortgage Lender’s failure to so instruct) shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower. Collateral Agent and Servicer Lender shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts excess to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the Lender’s security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts, if any.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall have the right to collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) Lender as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent Lender and Borrower agree as follows:
(a) Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender.
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or hereunder, under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply)Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account an amount not less than Account, all Rent payable under the applicable Operating Lease for the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount, the Monthly Ground Rent Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); ) provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer Lender shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating CompanyBorrower. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral AgentLender. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documentshereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth Ninth Mezzanine Lender (or to an account designated by the Fifth Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other Ninth Mezzanine Lender); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuingcontinuing hereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer Lender shall have the right to retain such excess the amount so remitted to the Collection Account as collateral for the Loan and/or apply (or cause to be applied) such excess amount to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreement, Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the Debt. Each of Collateral Agent and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) transfer all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent Lender (or Servicer (on behalf Lender in the event of Mortgage Lender’s failure to so instruct) shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower. Collateral Agent and Servicer Lender shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts excess to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the Lender’s security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts, if any.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall have the right to collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) Lender as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent Lender and Borrower agree as follows:
(a) Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender.
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or hereunder, under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply)Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account an amount not less than Account, all Rent payable under the applicable Operating Lease for the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount, the Monthly Ground Rent Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer Lender shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating CompanyBorrower. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral AgentLender. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documentshereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth Eighth Mezzanine Lender (or to an account designated by the Fifth Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other Eighth Mezzanine Lender); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuingcontinuing hereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer Lender shall have the right to retain such excess the amount so remitted to the Collection Account as collateral for the Loan and/or apply (or cause to be applied) such excess amount to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreement, Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the Debt. Each of Collateral Agent and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) transfer all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent Lender (or Servicer (on behalf Lender in the event of Mortgage Lender’s failure to so instruct) shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower. Collateral Agent and Servicer Lender shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts excess to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the Lender’s security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts, if any.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall have the right to collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) Lender as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent Lender and Borrower agree as follows:
(a) Borrower hereby grants to Lender a first priority security interest in and to all right, title and interest of Borrower in the Collection Accounts and all deposits at any time contained therein and the proceeds thereof (whether now owned or existing or hereafter acquired or arising and regardless of where located). Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender.
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply)Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account Account, an amount not less than all Rent payable under the applicable Operating Lease for the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer Lender shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating CompanyBorrower. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral AgentLender. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documents, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth First Mezzanine Lender (or to an account designated by the Fifth Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other First Mezzanine Lender); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuingcontinuing hereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer Lender shall have the right to retain such excess as collateral for the Loan and/or apply (or cause to be applied) such excess to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreementherein (including, without limitation, Section 9.4(a) hereof), Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the DebtBorrower. Each of Collateral Agent Lender and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or and/or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) transfer all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent or Servicer (on behalf of Mortgage Lender) Lender shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower, to transfer to the Cash Management Account on each Business Day in immediately available funds by federal wire transfer, all amounts on deposit in each Collection Account up to the aggregate amount owed by Operating Company under the Operating Lease, including, without limitation, any damages pursuant to Section 12.2(a) thereof, and thereafter (as well as pending the determination of such damages) Operating Company shall not receive any monies from the Collection Account except to the extent they exceed the aggregate amount owed by Operating Company under the Operating Lease (or pending such determination, such aggregate amount estimated by Borrower and Lender), including, without limitation, any damages pursuant to Section 12.2(a) thereof. Collateral Agent and Servicer Lender shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the Lender’s security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts.
Appears in 1 contract
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent and Borrower agree as follows:
(a) Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender.
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply), Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account an amount not less than all Rent payable under the applicable Operating Lease for the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating Company. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral Agent. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documents, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth Mezzanine Lender Borrower or to an account designated by the Fifth Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other Mezzanine Lender)Borrower; provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuing, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer shall have the right to retain such excess as collateral for the Loan and/or apply (or cause to be applied) such excess to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreement, Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the Debt. Each of Collateral Agent and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent or Servicer (on behalf of Mortgage Lender) shall have the right to direct the Collection Bank on behalf of Mortgage Borrower. Collateral Agent and Servicer shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts.
Appears in 1 contract
Samples: Ninth Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall have the right to collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) Lender as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent Lender and Borrower agree as follows:
(a) Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender.
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or hereunder, under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply)Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account an amount not less than Account, all Rent payable under the applicable Operating Lease for the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount, the Monthly Ground Rent Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer Lender shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating CompanyBorrower. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral AgentLender. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documentshereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth Fourth Mezzanine Lender (or to an account designated by the Fifth Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other Fourth Mezzanine Lender); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuingcontinuing hereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer Lender shall have the right to retain such excess the amount so remitted to the Collection Account as collateral for the Loan and/or apply (or cause to be applied) such excess amount to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreement, Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the Debt. Each of Collateral Agent and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) transfer all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent Lender (or Servicer (on behalf Lender in the event of Mortgage Lender’s failure to so instruct) shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower. Collateral Agent and Servicer Lender shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts amount to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the Lender’s security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts, if any.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall have the right to collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) Lender as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent Lender and Borrower agree as follows:
(a) Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender.
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or hereunder, under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply)Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account an amount not less than Account, all Rent payable under the applicable Operating Lease for the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount, the Monthly Ground Rent Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer Lender shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating CompanyBorrower. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral AgentLender. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documentshereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth Mezzanine Lender Borrower (or to an account designated by the Fifth Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other Mezzanine LenderBorrower); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuingcontinuing hereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer Lender shall have the right to retain such excess the amount so remitted to the Collection Account as collateral for the Loan and/or apply (or cause to be applied) such excess amount to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreement, Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the Debt. Each of Collateral Agent and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) transfer all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent Lender (or Servicer (on behalf Lender in the event of Mortgage Lender’s failure to so instruct) shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower. Collateral Agent and Servicer Lender shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts excess to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the Lender’s security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts, if any.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent and Borrower agree as follows:
(a) Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender.
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply), Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account an amount not less than all Rent payable under the applicable Operating Lease for the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating Company. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral Agent. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documents, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth Fourth Mezzanine Lender or to an account designated by the Fifth Fourth Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other Mezzanine Lender); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuing, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer shall have the right to retain such excess as collateral for the Loan and/or apply (or cause to be applied) such excess to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreement, Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the Debt. Each of Collateral Agent and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent or Servicer (on behalf of Mortgage Lender) shall have the right to direct the Collection Bank on behalf of Mortgage Borrower. Collateral Agent and Servicer shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts.
Appears in 1 contract
Samples: Third Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent and Borrower agree as follows:
(a) Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender.
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply), Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account an amount not less than all Rent payable under the applicable Operating Lease for the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating Company. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral Agent. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documents, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth Ninth Mezzanine Lender or to an account designated by the Fifth Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other Ninth Mezzanine Lender); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuing, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer shall have the right to retain such excess as collateral for the Loan and/or apply (or cause to be applied) such excess to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreement, Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the Debt. Each of Collateral Agent and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent or Servicer (on behalf of Mortgage Lender) shall have the right to direct the Collection Bank on behalf of Mortgage Borrower. Collateral Agent and Servicer shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts.
Appears in 1 contract
Samples: Eighth Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall have the right to collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) Lender as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent Lender and Borrower agree as follows:
(a) Borrower hereby grants to Lender a first priority security interest in and to all right, title and interest of Borrower in the Collection Accounts and all deposits at any time contained therein and the proceeds thereof (whether now owned or existing or hereafter acquired or arising and regardless of where located). Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender.
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply)Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account an amount not less than Account, all Rent payable under the applicable Operating Lease for the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount, the Monthly Ground Rent Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer Lender shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating CompanyBorrower. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral AgentLender. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documents, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth First Mezzanine Lender (or to an account designated by the Fifth Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other First Mezzanine Lender); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuingcontinuing hereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer Lender shall have the right to retain such excess as collateral for the Loan and/or apply (or cause to be applied) such excess to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreement, Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the Debt. Each of Collateral Agent and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) transfer all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent or Servicer (on behalf of Mortgage Lender) Lender shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower, to transfer to the Cash Management Account on each Business Day in immediately available funds by federal wire transfer, all amounts on deposit in each Collection Account up to the aggregate amount owed by Operating Company under the Operating Lease, including, without limitation, any damages pursuant to Section 12.2(a) thereof, and thereafter (as well as pending the determination of such damages) Operating Company shall not receive any monies from the Collection Account except to the extent they exceed the aggregate amount owed by Operating Company under the Operating Lease (or pending such determination, such aggregate amount estimated by Borrower and Mortgagee), including, without limitation, any damages pursuant to Section 12.2(a) thereof. Collateral Agent and Servicer Lender shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the Lender’s security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts.
Appears in 1 contract
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent and Borrower agree as follows:
(a) Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender.
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply), Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account an amount not less than all Rent payable under the applicable Operating Lease for the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating Company. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral Agent. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documents, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth Sixth Mezzanine Lender or to an account designated by the Fifth Sixth Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other Mezzanine Lender); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuing, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer shall have the right to retain such excess as collateral for the Loan and/or apply (or cause to be applied) such excess to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreement, Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the Debt. Each of Collateral Agent and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent or Servicer (on behalf of Mortgage Lender) shall have the right to direct the Collection Bank on behalf of Mortgage Borrower. Collateral Agent and Servicer shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts.
Appears in 1 contract
Samples: Fifth Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall have the right to collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) Lender as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent Lender and Borrower agree as follows:
(a) Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender.
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or hereunder, under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply)Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account an amount not less than Account, all Rent payable under the applicable Operating Lease for the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount, the Monthly Ground Rent Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer Lender shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating CompanyBorrower. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral AgentLender. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documentshereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth Sixth Mezzanine Lender (or to an account designated by the Fifth Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other Sixth Mezzanine Lender); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuingcontinuing hereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer Lender shall have the right to retain such excess the amount so remitted to the Collection Account as collateral for the Loan and/or apply (or cause to be applied) such excess amount to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreement, Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the Debt. Each of Collateral Agent and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) transfer all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent Lender (or Servicer (on behalf Lender in the event of Mortgage Lender’s failure to so instruct) shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower. Collateral Agent and Servicer Lender shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts amount to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the Lender’s security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts, if any.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall have the right to collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) Lender as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent Lender and Borrower agree as follows:
(a) Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender.
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or hereunder, under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply)Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account Account, an amount not less than all Rent payable under the applicable Operating Lease for the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount, the Monthly Ground Rent Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer Lender shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating CompanyBorrower. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral AgentLender. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documentshereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth Eighth Mezzanine Lender (or to an account designated by the Fifth Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other Eighth Mezzanine Lender); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuingcontinuing hereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer Lender shall have the right to retain such excess the amount so remitted to the Collection Account as collateral for the Loan and/or apply (or cause to be applied) such excess amount to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreementherein (including, without limitation, Section 9.4(a) hereof), Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the DebtBorrower. Each of Collateral Agent Lender and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or and/or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) transfer all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent Lender (or Servicer (on behalf Lender in the event of Mortgage Lender’s failure to so instruct) shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower. Collateral Agent and Servicer Lender shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts excess to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the Lender’s security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts, if any.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall have the right to collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) Lender as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent Lender and Borrower agree as follows:
(a) Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender.
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or hereunder, under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply)Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account Account, an amount not less than all Rent payable under the applicable Operating Lease for the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount, the Monthly Ground Rent Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer Lender shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating CompanyBorrower. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral AgentLender. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documentshereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth Sixth Mezzanine Lender (or to an account designated by the Fifth Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other Sixth Mezzanine Lender); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuingcontinuing hereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer Lender shall have the right to retain such excess the amount so remitted to the Collection Account as collateral for the Loan and/or apply (or cause to be applied) such excess amount to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreementherein (including, without limitation, Section 9.4(a) hereof), Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the DebtBorrower. Each of Collateral Agent Lender and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or and/or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) transfer all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent Lender (or Servicer (on behalf Lender in the event of Mortgage Lender’s failure to so instruct) shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower. Collateral Agent and Servicer Lender shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts amount to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the Lender’s security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts, if any.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent and Borrower agree as follows:
(a) Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender.
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply), Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account an amount not less than all Rent payable under the applicable Operating Lease for the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating Company. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral Agent. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documents, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth Third Mezzanine Lender or to an account designated by the Fifth Third Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other Mezzanine Lender); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuing, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer shall have the right to retain such excess as collateral for the Loan and/or apply (or cause to be applied) such excess to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreement, Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the Debt. Each of Collateral Agent and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent or Servicer (on behalf of Mortgage Lender) shall have the right to direct the Collection Bank on behalf of Mortgage Borrower. Collateral Agent and Servicer shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts.
Appears in 1 contract
Samples: Second Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall have the right to collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) Lender as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent Lender and Borrower agree as follows:
(a) Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender.
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or hereunder, under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply)Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account Account, an amount not less than all Rent payable under the applicable Operating Lease for the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount, the Monthly Ground Rent Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer Lender shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating CompanyBorrower. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral AgentLender. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documentshereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth Mezzanine Lender Borrower (or to an account designated by the Fifth Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other Mezzanine LenderBorrower); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuingcontinuing hereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer Lender shall have the right to retain such excess the amount so remitted to the Collection Account as collateral for the Loan and/or apply (or cause to be applied) such excess amount to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreementherein (including, without limitation, Section 9.4(a) hereof), Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the DebtBorrower. Each of Collateral Agent Lender and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or and/or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) transfer all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent Lender (or Servicer (on behalf Lender in the event of Mortgage Lender’s failure to so instruct) shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower. Collateral Agent and Servicer Lender shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts excess to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the Lender’s security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts, if any.
Appears in 1 contract
Samples: Ninth Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall have the right to collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) Lender as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent Lender and Borrower agree as follows:
(a) Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender.
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or hereunder, under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply)Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account Account, an amount not less than all Rent payable under the applicable Operating Lease for the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount, the Monthly Ground Rent Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer Lender shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating CompanyBorrower. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral AgentLender. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documentshereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth Fourth Mezzanine Lender (or to an account designated by the Fifth Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other Fourth Mezzanine Lender); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuingcontinuing hereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer Lender shall have the right to retain such excess the amount so remitted to the Collection Account as collateral for the Loan and/or apply (or cause to be applied) such excess amount to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreementherein (including, without limitation, Section 9.4(a) hereof), Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the DebtBorrower. Each of Collateral Agent Lender and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or and/or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) transfer all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent Lender (or Servicer (on behalf Lender in the event of Mortgage Lender’s failure to so instruct) shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower. Collateral Agent and Servicer Lender shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts amount to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the Lender’s security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts, if any.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent and Borrower agree as follows:
(a) Operating Company has granted to Borrower a first priority security interest in and to all right, title and interest of Operating Company in the Collection Accounts and all deposits at any time contained therein and the proceeds thereof (whether now owned or existing or hereafter acquired or arising and regardless of where located), and Borrower has granted to Collateral Agent (for the benefit of Lender) a first priority security interest in and to all right, title and interest of Borrower in the Collection Accounts and all deposits at any time contained therein and the proceeds thereof (whether now owned or existing or hereafter acquired or arising and regardless of where located). Borrower will cause Operating Company to take all actions necessary to maintain in favor of Borrower (and Borrower will take all actions necessary to maintain in favor of Collateral Agent, for the benefit of Lender) a perfected first priority security interest in the Collection Accounts including, without limitation, executing, delivering and maintaining one or more account control agreements that comply with Article 9 of the Uniform Commercial Code as in effect from time to time in any applicable jurisdictions and filing UCC-1 Financing Statements and continuations thereof upon Lender’s (or Collateral Agent’s) request therefor. Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any LenderLender .
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply), Borrower shall cause Mortgage Borrower the applicable Controlling Party and/or Operating Company to shall direct and cause Collection Bank to deposit directly into the Cash Management Account an amount not less than all Rent payable under the applicable Operating Lease for the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower the applicable Controlling Party or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower the applicable Controlling Party and Operating Company. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral Agent. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documents, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth First Mezzanine Lender or to an account designated by the Fifth First Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other Mezzanine Lender); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuing, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer shall have the right to retain such excess as collateral for the Loan and/or apply (or cause to be applied) such excess to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreement, Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the Debt. Each of Collateral Agent and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower the applicable Controlling Party and/or Operating Company to shall notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower the applicable Controlling Party or Operating Company shall have failed to do so, any of Mortgage Loan Lender, Collateral Agent or and Servicer (on behalf of Mortgage Lender) shall have the right to direct the Collection Bank on behalf of Mortgage Borrowerthe applicable Controlling Party and Operating Company to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) all amounts on deposit in each Collection Account up to the aggregate amount owed by Operating Company under the Operating Lease, including, without limitation, any damages pursuant to Section 12.2(a) thereof, and thereafter (as well as pending the determination of such damages) Operating Company shall not receive any monies from the Collection Account except to the extent they exceed the aggregate amount owed by Operating Company under the Operating Lease (or pending such determination, such aggregate amount estimated by Borrower and Lender), including, without limitation, any damages pursuant to Section 12.2(a) thereof. Collateral Agent and Servicer shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts.
Appears in 1 contract
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall have the right to collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) Lender as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent Lender and Borrower agree as follows:
(a) Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender.
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or hereunder, under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply)Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account an amount not less than Account, all Rent payable under the applicable Operating Lease for the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount, the Monthly Ground Rent Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer Lender shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating CompanyBorrower. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral AgentLender. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documentshereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth Mezzanine Lender (or to an account designated by the Fifth Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other Mezzanine Lender); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuingcontinuing hereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer Lender shall have the right to retain such excess the amount so remitted to the Collection Account as collateral for the Loan and/or apply (or cause to be applied) such excess amount to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreement, Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the Debt. Each of Collateral Agent and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) transfer all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent Lender (or Servicer (on behalf Lender in the event of Mortgage Lender’s failure to so instruct) shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower. Collateral Agent and Servicer Lender shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts amount to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the Lender’s security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts, if any.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent and Borrower agree as follows:
(a) Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender.
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply), Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account an amount not less than all Rent payable under the applicable Operating Lease for the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating Company. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral Agent. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documents, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth Second Mezzanine Lender or to an account designated by the Fifth Second Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other Mezzanine Lender); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuing, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer shall have the right to retain such excess as collateral for the Loan and/or apply (or cause to be applied) such excess to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreement, Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the Debt. Each of Collateral Agent and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent or Servicer (on behalf of Mortgage Lender) shall have the right to direct the Collection Bank on behalf of Mortgage Borrower. Collateral Agent and Servicer shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts.
Appears in 1 contract
Samples: First Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall have the right to collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) Lender as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent Lender and Borrower agree as follows:
(a) Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender.
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or hereunder, under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply)Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account Account, an amount not less than all Rent payable under the applicable Operating Lease for such the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount Amount, and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer Lender shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating CompanyBorrower. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral AgentLender. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documentshereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth Second Mezzanine Lender (or to an account designated by the Fifth Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other Second Mezzanine Lender); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuingcontinuing hereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer Lender shall have the right to retain such excess as collateral for the Loan and/or apply (or cause to be applied) such excess to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreementherein (including, without limitation, Section 9.4(a) hereof), Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the DebtBorrower. Each of Collateral Agent Lender and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or and/or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) transfer all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent Lender (or Servicer (on behalf Lender in the event of Mortgage Lender’s failure to so instruct) shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower. Collateral Agent and Servicer Lender shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts amount to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the Lender’s security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts.
Appears in 1 contract
Samples: First Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent and Borrower agree as follows:
(a) Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender.
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply), Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account an amount not less than all Rent payable under the applicable Operating Lease for the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating Company. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral Agent. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documents, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth Eighth Mezzanine Lender or to an account designated by the Fifth Eighth Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other Mezzanine Lender); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuing, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer shall have the right to retain such excess as collateral for the Loan and/or apply (or cause to be applied) such excess to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreement, Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the Debt. Each of Collateral Agent and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent or Servicer (on behalf of Mortgage Lender) shall have the right to direct the Collection Bank on behalf of Mortgage Borrower. Collateral Agent and Servicer shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall have the right to collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) Lender as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent Lender and Borrower agree as follows:
(a) Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender.
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or hereunder, under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply)Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account Account, an amount not less than all Rent payable under the applicable Operating Lease for the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount, the Monthly Ground Rent Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); ) provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer Lender shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating CompanyBorrower. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral AgentLender. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documentshereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth Ninth Mezzanine Lender (or to an account designated by the Fifth Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other Ninth Mezzanine Lender); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuingcontinuing hereunder, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer Lender shall have the right to retain such excess the amount so remitted to the Collection Account as collateral for the Loan and/or apply (or cause to be applied) such excess amount to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreementherein (including, without limitation, Section 9.4(a) hereof), Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the DebtBorrower. Each of Collateral Agent Lender and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or and/or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) transfer all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent Lender (or Servicer (on behalf Lender in the event of Mortgage Lender’s failure to so instruct) shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower. Collateral Agent and Servicer Lender shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts excess to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the Lender’s security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts, if any.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Disbursements from, Security Interest in, Collection Accounts. The Operating Lease provides, among other things, that all Revenues shall be collaterally assigned by Operating Company to Mortgage Borrower as additional security for Operating Company’s obligations under the Operating Lease and that Mortgage Borrower shall collaterally assign and pledge all of its interest in such Revenues to Mortgage Loan Collateral Agent (for the benefit of Mortgage Lender) as additional security for the Mortgage Loan. In furtherance thereof, Lender, Collateral Agent and Borrower agree as follows:
(a) Except as otherwise provided in subparagraphs (b) and (c) hereof, all amounts collected in the Collection Accounts shall be transferred on each Business Day to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of Collateral Agent or any Lender.
(b) Upon the occurrence and during the continuance of an Event of Default hereunder or under any of the Mortgage Loan Documents or under any of the Other Mezzanine Loan Documents, and provided no Event of Default (as such term is defined in the Operating Lease) shall have occurred and be continuing under any Operating Lease (in which event the provisions of Section 2.6.2(c) shall apply), Borrower shall cause Mortgage Borrower and/or Operating Company to direct and cause Collection Bank to deposit directly into the Cash Management Account an amount not less than all Rent payable under the applicable Operating Lease for the next thirty (30) days (it being the intent and agreement that, during the continuance of an Event of Default, the Cash Management Account shall at all times contain such amounts sufficient to cover the ensuing 30-day period), including the Monthly Tax and Insurance Amount and the Monthly FF&E Reserve Amount (the amounts described in the preceding sentence, collectively, the “Monthly Disbursements”); provided that, notwithstanding the foregoing, Lender may not apply such Monthly Disbursements to the payment of amounts due hereunder in an amount in excess of the amounts owed by the Operating Company under the Operating Lease. In the event that Borrower or Operating Company shall have failed to cause Mortgage Borrower to so instruct Collection Bank, any of Lender, Collateral Agent and Servicer shall have the right to so direct the Collection Bank on behalf of Mortgage Borrower and Operating Company. Any amounts not required to be so deposited into the Cash Management Account shall be transferred on each Business Day thereafter to (or as directed by) Operating Company for use or distribution by the Operating Company in its discretion free of any rights or encumbrances of any Lender or Collateral Agent. If no Event of Default has occurred and is continuing hereunder but an Event of Default has occurred and is continuing under any of the Other Mezzanine Loan Documents, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, such excess shall be remitted to the Fifth Seventh Mezzanine Lender or to an account designated by the Fifth Seventh Mezzanine Lender (or to the Other Mezzanine Lender for the next most senior Mezzanine Loan then outstanding or an account designated by such Other Mezzanine Lender); provided that, notwithstanding the foregoing, Lender shall not remit any such amounts in excess of the amounts owed by the Operating Company under the Operating Lease. If an Event of Default hereunder or under any of the Other Mezzanine Loan Documents has occurred and is continuing, to the extent Monthly Disbursements are not applied to the payment of amounts due hereunder, Collateral Agent and Servicer shall have the right to retain such excess as collateral for the Loan and/or apply (or cause to be applied) such excess to the payment of the Debt. Notwithstanding anything to the contrary contained in this Agreement, Borrower acknowledges and agrees that any and all reasonable and customary costs and expenses (including, without limitation, any reasonable attorneys’ fees) incurred by any of Lender, Collateral Agent or Servicer in remitting to Operating Company pursuant to this Section 2.6.2(b) any amounts in excess of Monthly Disbursements shall be borne by, and be the responsibility of, Borrower and shall constitute part of the Debt. Each of Collateral Agent and Servicer shall be entitled to rely on, and shall be held harmless in relying on, any instructions from Borrower or Operating Company in connection with the remittance of any funds from the Cash Management Account to Operating Company pursuant to this Section 2.6.2(b).
(c) Upon the occurrence and during the continuance of an Event of Default (as such term is defined in the Operating Lease) under any Operating Lease, Borrower shall cause Mortgage Borrower and/or Operating Company to notify Collection Bank to transfer to the Cash Management Account on each Business Day (in immediately available funds by federal wire transfer) all amounts on deposit in each Collection Account and, in the event Senior Mezzanine Borrower, Mortgage Borrower or Operating Company shall have failed to do so, any of Mortgage Loan Collateral Agent or Servicer (on behalf of Mortgage Lender) shall have the right to direct the Collection Bank on behalf of Mortgage Borrower. Collateral Agent and Servicer shall have the right to retain all amounts to be paid into the Cash Management Account in accordance with the first sentence of this Section 2.6.2(c) as collateral for the Loan and/or apply such amounts to the payment of the Debt.
(d) Borrower and its Affiliates shall (and Borrower shall cause Operating Company to) execute and deliver such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect, maintain and perfect the security interest of Collateral Agent (for the benefit of Lender) in the Collection Accounts.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc)
