Application of Payments and Proceeds Upon Default If an Event of Default has occurred and is continuing, Bank shall have the right to apply in any order any funds in its possession, whether from Borrower account balances, payments, proceeds realized as the result of any collection of Accounts or other disposition of the Collateral, or otherwise, to the Obligations. Bank shall pay any surplus to Borrower by credit to the Designated Deposit Account or to other Persons legally entitled thereto; Borrower shall remain liable to Bank for any deficiency. If Bank, directly or indirectly, enters into a deferred payment or other credit transaction with any purchaser at any sale of Collateral, Bank shall have the option, exercisable at any time, of either reducing the Obligations by the principal amount of the purchase price or deferring the reduction of the Obligations until the actual receipt by Bank of cash therefor.
Allocation of Payments After Event of Default Notwithstanding any other provisions of this Credit Agreement, after the occurrence and during the continuance of an Event of Default with respect to any Borrower, all amounts collected from such Borrower or received by the Administrative Agent or any Lender on account of amounts outstanding under any of the Credit Documents shall be paid over or delivered as follows: FIRST, to the payment of all reasonable out-of-pocket costs and expenses (including without limitation reasonable outside attorneys’ fees other than the fees of in-house counsel) of the Administrative Agent or any of the Lenders in connection with enforcing the rights of the Lenders under the Credit Documents against such Borrower and any protective advances made by the Administrative Agent or any of the Lenders, pro rata as set forth below; SECOND, to payment of any fees owed to the Administrative Agent or any Lender by such Borrower, pro rata as set forth below; THIRD, to the payment of all accrued interest payable to the Lenders by such Borrower hereunder, pro rata as set forth below; FOURTH, to the payment of the outstanding principal amount of the Loans or Letters of Credit outstanding of such Borrower, pro rata as set forth below; FIFTH, to all other obligations which shall have become due and payable of such Borrower under the Credit Documents and not repaid pursuant to clauses “FIRST” through “FOURTH” above; and SIXTH, the payment of the surplus, if any, to whoever may be lawfully entitled to receive such surplus. In carrying out the foregoing, (a) amounts received shall be applied in the numerical order provided until exhausted prior to application to the next succeeding category and (b) each of the Lenders shall receive an amount equal to its pro rata share (based on each Lender’s Commitment Percentages) of amounts available to be applied.
DESTRUCTION OF PREMISES (A) If, during the term of this Lease, the Leased Premises are totally or partially destroyed by fire or the elements, so as to render the premises wholly unfit for occupancy, or make it impossible in the opinion of a licensed third party arbitrator knowledgeable in the child care business reasonably acceptable to Lessee and Lessor, for Lessee to conduct its business therein, then either Lessor or Lessee shall have the right to terminate this Lease from the date of such damage or destruction by giving written notice. The parties agree to use reasonable promptness to obtain the opinion of such licensed third party arbitrator. Upon the giving of such notice, Lessee shall immediately surrender the Leased Premises and all interest therein to Lessor, and in case of any such termination, Lessor may re-enter and repossess the Leased Premises and may dispossess all parties then in possession thereof. If not otherwise terminated, in the event the Leased Premises shall be repaired, restored, and rebuilt by Lessee with the use of insurance proceeds (which Lessor shall cooperate to make available), but otherwise at its own sole cost and expense, within one hundred eighty (180) days from the date of destruction (subject to force majuere as set forth in paragraph C hereof, then all rents payable by Lessee shall be abated during the period of repair and restoration to the extent Lessor shall be compensated by the proceeds of rents loss insurance. In no event shall Lessor be required to provide its own money for the repair or restoration of the Leased Premises other than the net proceeds of moneys received by it from any insurance policy or policies covering such loss or damages. Lessee shall be liable for repair of the Leased Premises with all reasonable speed, and the rents shall recommence on the date that the repairs are completed. Lessee shall be under no obligation to so repair during the last five (5) years of the term of the Lease, or as extended, but if Lessee shall desire to rebuild during the last 12 months of the Lease term, Lessor will make insurance proceeds available to rebuild the Leased Premises conditioned upon Lessee then exercising its next renewal option under the Lease. Lessor will make insurance proceeds available to rebuild the Leased Premises in the event Lessee rebuilds, except as stated above.
(B) If the damage does not, in the opinion of a licensed third party arbitrator reasonably acceptable to Lessee and Lessor, render the Leased Premises unfit for occupancy, then Lessor agrees that the damage shall be repaired as soon as practicable and in that case, Lessee shall pay full rent during the repair period. All repairs shall be paid for by Lessee out of any insurance proceeds received (which Lessor shall cooperate to make available), but if the insurance proceeds are insufficient to rebuild or repair the Leased Premises according to the original plans and specifications, whether repair or restoration is commenced pursuant to paragraph A or B hereof, then Lessee agrees to pay all additional amounts that are required to rebuild the building in accordance with the original plans and specifications. All improvements or betterments placed by Lessee on the demised premises shall, however, in any event, be repaired and replaced by Lessee at its own expense and not at the expense of Lessor. The purpose of this Article is to require Lessee to carry insurance coverage on the Leased Premises sufficient to rebuild the improvements in the event of damage or destruction. Lessee shall be under no obligation to so rebuild during the last five (5) years of the term, as extended, as the case may be, but if Lessee shall desire to rebuild during the last 12 months of the Lease term, Lessor will make insurance proceeds available to rebuild the Leased Premises conditioned upon Lessee then exercising its next renewal option under the Lease. Lessor will make insurance proceeds available to rebuild the Leased Premises in the event Lessee rebuilds, except as stated above. Risk that the insurance company shall be insolvent or shall refuse to make insurance proceeds available shall be with Lessee. The Leased Premises shall be so restored or rebuilt so as to be of at least equal value and substantially the same character as prior to such damage or destruction. If the insurance proceeds are less than $100,000 they shall be paid to Lessee for such repair and restoration. If the insurance proceeds are greater than or equal to $100,000 they shall be deposited by Lessee and Lessor into a customary construction escrow at a nationally recognized title insurance company, or at Lessee's option, with Lessor ("Escrowee") and shall be made available from time to time to Lessee for such repair and restoration. Such proceeds shall be disbursed in conformity with the terms and conditions of a commercially reasonable construction loan agreement. Lessee shall, in either instance, deliver to Lessor or Escrowee (as the case may be) satisfactory evidence of the estimated cost of completion together with such architect's certificates, waivers of lien, contractor's sworn statements and other evidence of cost and of payments as the Lessor or Escrowee may reasonably require and approve. If the estimated cost of the work exceeds One Hundred Thousand Dollars ($100,000), all plans and specifications for such rebuilding or restoration shall be subject to the reasonable approval of Lessor.
(C) Lessee shall comply with the time period stated above for restoration of the Leased Premises as set forth in this Article; provided, however, that said period of time shall be extended for a period or periods of time equal to any period or periods of delay caused by strikes, lockouts, fire, or other casualty, the elements, acts of God, delay by or refusal or failure of governmental authorities to grant necessary permits and approvals for the reconstruction of the Leased Premises (Lessee agreeing to use reasonable diligence to procure the same), or other causes other than financial, beyond Lessee's reasonable control or the reasonable control of Lessee's contractor.
Condition of Premises Lessor makes no warranty or representation as to the Premises. Lessee acknowledges and agrees that it has occupied and familiarized itself with the Premises and has had adequate opportunity to investigate and inspect the condition of the Premises, and enters into this Lease upon the basis of its own review, and is leasing the Premises in their “AS IS, WHERE IS” CONDITION WITH ALL FAULTS, WHETHER PREVIOUSLY EXISTING OR ARISING FROM OR PERTAINING TO ANY CONSTRUCTION, RENOVATION, RELOCATION OR IMPROVEMENT OF ANY PORTION OF THE PREMISES PERFORMED BY LESSOR OR OTHERS, INCLUDING BUT NOT LIMITED TO BOTH LATENT AND PATENT DEFECTS. EXCEPT AS EXPRESSLY SET FORTH TO THE CONTRARY IN THIS LEASE, NO WARRANTIES, EXPRESS OR IMPLIED, ARE MADE BY LESSOR OR ANY OF ITS AFFILIATES CONCERNING SUCH ITEMS, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LESSEE HEREBY WAIVES AND DISCLAIMS ANY WARRANTIES THAT MAY ARISE BY OPERATION OF LAW. Lessee further acknowledges and agrees that it has had an opportunity to review and to discuss with various agents and/or representatives of Lessor the environmental condition of the Premises. Lessee has investigated and has knowledge of operative or proposed governmental laws and regulations including, without limitation, environmental laws and regulations to which the Premises are or may be subject and enters into this Lease upon the basis of its review and determination of the applicability and effect of such laws and regulations. Lessee acknowledges that Lessor expressly disclaims any representations or warranties of any kind or nature, express or implied, as to the condition (financial or otherwise), value or quality of the products, assets or properties of the Premises. Lessee hereby accepts the Premises in their condition existing as of the date hereof, subject to all applicable zoning, municipal, county and state laws, ordinances and regulations governing and regulating the use of the Premises, and accepts this Lease subject thereto and to all matters disclosed thereby and by any exhibits attached hereto. Lessee hereby agrees that all furniture, equipment, machinery and all other personal property, excepting any computers, that are located on or in the Premises as of the date hereof shall remain on the Premises as and when Lessee evacuates the Premises on the Termination Date or any extension thereof.
Condition of Property; Condemnation In the case of each Mortgage Loan, except as set forth in an engineering report prepared by an independent engineering consultant in connection with the origination of such Mortgage Loan, the related Mortgaged Property is, to the Seller's knowledge, in good repair and free and clear of any damage that would materially and adversely affect its value as security for such Mortgage Loan (except in any such case where an escrow of funds, letter of credit or insurance coverage exists sufficient to effect the necessary repairs and maintenance). As of the date of origination of the Mortgage Loan, there was no proceeding pending for the condemnation of all or any material part of the related Mortgaged Property. As of the Closing Date, the Seller has not received notice and has no knowledge of any proceeding pending for the condemnation of all or any material portion of the Mortgaged Property securing any Mortgage Loan. As of the date of origination of each Mortgage Loan and, to the Seller's knowledge, as of the date hereof, (a) none of the material improvements on the related Mortgaged Property encroach upon the boundaries and, to the extent in effect at the time of construction, do not encroach upon the building restriction lines of such property, and none of the material improvements on the related Mortgaged Property encroached over any easements, except, in each case, for encroachments that are insured against by the lender's title insurance policy referred to in representation 8 below or that do not materially and adversely affect the Value or current use of such Mortgaged Property and (b) no improvements on adjoining properties encroached upon such Mortgaged Property so as to materially and adversely affect the Value of such Mortgaged Property, except those encroachments that are insured against by the lender's title insurance policy referred to in representation 8 below.
Loss, Theft, Destruction or Mutilation Upon receipt by the Company of evidence satisfactory to it, in the exercise of its reasonable discretion, of the ownership and the loss, theft, destruction or mutilation of this Warrant and, in the case of loss, theft or destruction, of indemnity reasonably satisfactory to the Company and, in the case of mutilation, upon surrender and cancellation thereof, the Company will execute and deliver in lieu thereof, without expense to the Holder, a new Warrant of like tenor dated the date hereof.
Surrender of Notes Upon Final Payment By acceptance of any Note, the Holder thereof agrees to surrender such Note to the Indenture Trustee promptly, prior to such Noteholder's receipt of the final payment thereon.
Transfer Upon Realization of Pledged, Mortgaged or Charged Escrow Securities (1) You may transfer within escrow to a financial institution the escrow securities you have pledged, mortgaged or charged under section 4.2 to that financial institution as collateral for a loan on realization of the loan.
(2) Prior to the transfer the Escrow Agent must receive:
(a) a statutory declaration of an officer of the financial institution that the financial institution is legally entitled to the escrow securities;
(b) a transfer power of attorney, executed by the transferor in accordance with the requirements of the Issuer’s transfer agent; and
(c) an acknowledgement in the form of Schedule “B” signed by the financial institution.
(3) Within 10 days after the transfer, the transferee of the escrow securities will file a copy of the acknowledgment with the securities regulators in the jurisdictions in which the Issuer is a reporting issuer.
Early Construction of Base Case Facilities Developer may request Connecting Transmission Owner to construct, and Connecting Transmission Owner shall construct, subject to a binding cost allocation agreement reached in accordance with Attachment S to the ISO OATT, including Section 25.8.7 thereof, using Reasonable Efforts to accommodate Developer’s In-Service Date, all or any portion of any System Upgrade Facilities or System Deliverability Upgrades required for Developer to be interconnected to the New York State Transmission System which are included in the Base Case of the Class Year Study for the Developer, and which also are required to be constructed for another Developer, but where such construction is not scheduled to be completed in time to achieve Developer’s In-Service Date.
Payments after Default Upon the occurrence and during the continuance of an Event of Default, interest on the outstanding principal balance of the Loan and, to the extent permitted by law, overdue interest and other amounts due in respect of the Loan, shall accrue at the Default Rate, calculated from the date such payment was due without regard to any grace or cure periods contained herein. Interest at the Default Rate shall be computed from the occurrence of the Event of Default until the earlier of (i) in the event of a non-monetary default, the cure of such Event of Default by Borrower and acceptance of such cure by Lender, and (ii) in the event of a monetary default, the actual receipt and collection of the Debt (or that portion thereof that is then due). To the extent permitted by applicable law, interest at the Default Rate shall be added to the Debt, shall itself accrue interest at the same rate as the Loan and shall be secured by the Mortgage. This paragraph shall not be construed as an agreement or privilege to extend the date of the payment of the Debt, nor as a waiver of any other right or remedy accruing to Lender by reason of the occurrence of any Event of Default and Lender retains its rights under the Note and this Agreement to accelerate and to continue to demand payment of the Debt upon the happening and continuance of any Event of Default.
