Common use of Use of Account; Capital Calls by the Administrative Agent Clause in Contracts

Use of Account; Capital Calls by the Administrative Agent. A Borrower may withdraw funds from the applicable Collateral Account at any time or from time to time and disburse such funds as the Borrower may direct, so long as at the time of such withdrawal or disbursement and after giving effect thereto, there does not exist a Cash Control Event in respect of such Borrower’s Fund Group (unless, in the case of a Cash Control Event due to a Borrowing Base Deficiency, the Borrower has directed that such disbursement be paid to the Administrative Agent to repay such excess), and any withdrawal from any Collateral Account shall be deemed a representation and warranty that the foregoing condition is satisfied. If the Account Bank with respect to any Collateral Account ceases to be an Eligible Institution, the Borrower shall have thirty (30) days (or such longer period as the Administrative Agent may agree in its sole discretion) following notice from the Administrative Agent to move its Collateral Account to a replacement Account Bank that is SMBC or an Eligible Institution; provided, that if no bank reasonably acceptable to the Administrative Agent and the Borrower is an Eligible Institution, the Borrower will only be required to move its Collateral Account to SMBC if SMBC’s short-term unsecured debt rating is higher than that of the then-current Account Bank. If the Account Bank provides notice of its intent to terminate a Control Agreement, the Borrower shall open a new collateral account that is subject to a new Control Agreement with a replacement Account Bank within thirty (30) days (or such longer period as the Administrative Agent may agree in its sole discretion) of the Borrower, receiving such notice. Notwithstanding anything to the contrary contained in this Credit Agreement or any other Loan Document, each Collateral Account shall, at all times, be subject to a Control Agreement in form and substance reasonably satisfactory to the Administrative Agent. Solely following the occurrence and during the continuance of a Cash Control Event, each Borrower hereby irrevocably authorizes and directs the Lenders, acting through the Administrative Agent, to charge from time to time the Collateral Accounts for amounts not paid when due to the Lenders or any of them hereunder, under any Letter of Credit Application, under any Letter of Credit or under the Notes. The Administrative Agent, on behalf of the Secured Parties, is hereby authorized, in the name of the Lenders or the Borrower, at any time or from time to time upon the occurrence and while an Event of Default exists, to notify any or all parties obligated to the applicable Fund Group or Fund Groups with respect to the Capital Commitments to make all payments due or to become due thereon directly to the Administrative Agent on behalf of the Secured Parties, at a different account number, or to initiate one or more Capital Call Notices in order to pay the Obligations. Regardless of any provision hereof, in the absence of gross negligence or willful misconduct by the Administrative Agent, the Lenders or the Letter of Credit Issuer, none of the Administrative Agent, the Lenders or the Letter of Credit Issuer shall ever be liable for failure to collect or for failure to exercise diligence in the collection, possession, or any transaction concerning, all or part of the Collateral, or sums due or paid thereon, nor shall they be under any obligation whatsoever to anyone by virtue of the security interests and liens relating to the Collateral. The Administrative Agent shall give the Borrower prompt notice of any action taken pursuant to this Section 5.02(d), but failure to give such notice shall not affect the validity of such action or give rise to any defense in favor of the Borrower with respect to such action.

Use of Account; Capital Calls by the Administrative Agent. A Borrower Each Loan Party may withdraw funds from the applicable a Collateral Account at any time or from time to time and disburse such funds as the Borrower may directtime, so long as at the time of such withdrawal or disbursement and after giving effect thereto, thereto there does not exist a Cash Control Event in respect of such Borrower’s Fund Group (unless, in the case of a Cash Control Event due to a Borrowing Base DeficiencyLoan Party, the Borrower such Loan Party has directed that the Depository to disburse all such disbursement be paid amounts to the Administrative Agent to repay such excesssatisfy a Mandatory Prepayment or to pay all or any portion of the Obligations), and provided that no Loan Party may withdraw any withdrawal amounts from any a Collateral Account shall be deemed during a representation and warranty that Cash Control Event without the foregoing condition is satisfied. If the Account Bank with respect to any Collateral Account ceases to be an Eligible Institution, the Borrower shall have thirty (30) days (or such longer period as the Administrative Agent may agree in its sole discretion) following notice from the Administrative Agent to move its Collateral Account to a replacement Account Bank that is SMBC or an Eligible Institution; provided, that if no bank reasonably acceptable to consent of the Administrative Agent and the Borrower is an Eligible Institution, the Borrower will only be required Required Lenders. The Lenders authorize each Loan Party to move its Collateral Account to SMBC if SMBC’s short-term unsecured debt rating is higher than that of the then-current Account Bankmake such withdrawals in accordance with this Section 5.02(d). If the Account Bank provides notice of its intent to terminate a Control Agreement, the Borrower shall open a new collateral account that is subject to a new Control Agreement with a replacement Account Bank within thirty (30) days (or such longer period as the Administrative Agent may agree in its sole discretion) of the Borrower, receiving such notice. Notwithstanding anything to the contrary contained in this Credit Agreement or any other Each Loan Document, each Collateral Account shall, at all times, be subject to a Control Agreement in form and substance reasonably satisfactory to the Administrative Agent. Solely following the occurrence and during the continuance of a Cash Control Event, each Borrower Party hereby irrevocably authorizes and directs the Lenders, acting through the Administrative Agent, to charge from time to time the applicable Collateral Accounts Account for amounts not paid when due (after the passage of any applicable grace period) to the Lenders or any of them hereunder, under any Letter of Credit Application, under any Letter of Credit hereunder or under the NotesNotes (as applicable). Upon the occurrence of a Cash Control Event, the Administrative Agent is authorized to take exclusive control of each Collateral Account in accordance with the terms of the applicable Collateral Account Pledge or Account Control Agreement (if applicable). The Administrative Agent, on behalf of the Secured PartiesLenders, is hereby authorized, in the name of the Lenders or the Borrowerany Loan Party (as applicable), at any time or from time to time upon the occurrence and while an Event of Default exists, to notify any or all parties obligated to the applicable Fund Group or Fund Groups any Borrower with respect to the Capital Commitments to make all payments due or to become due thereon directly to one or more of the Collateral Accounts. With or without such general notification, when an Event of Default exists, the Administrative Agent Agent, on behalf of the Secured PartiesLenders, at a different account numbermay: (i) make Capital Calls in the name of USActive 60330059.19 -70- any Loan Party; (ii) take or bring in any Loan Party’s name or that of the Lenders all steps, actions, suits, or proceedings deemed by the Administrative Agent necessary or advisable to initiate one effect possession or more Capital Call Notices collection of Collateral; (iii) take such actions with respect to the Collateral as are necessary in order to pay the Obligations, and to perform the Subscription Agreements and the Governing Agreements to the extent required to effect such actions; or (iv) exercise any right, privilege, power, or remedy provided to any Loan Party under the Constituent Documents, Subscription Agreements, or any Security Agreement or relating to the right to call for and to receive Capital Contributions. Regardless of any provision hereof, in the absence of gross negligence or willful misconduct by the Administrative Agent, the Lenders Agent or the Letter of Credit IssuerLenders, none of the Administrative Agent, Agent or the Lenders or the Letter of Credit Issuer shall ever be liable for failure to collect or for failure to exercise diligence in the collection, possession, or any transaction concerning, all or part of the Collateral, or sums due or paid thereon, nor shall they be under any obligation whatsoever to anyone by virtue of the security interests and liens relating to the Collateral. The Administrative Agent shall give the Borrower Borrowers prompt notice of any action taken pursuant to this Section 5.02(d), but failure to give such notice shall not affect the validity of such action or give rise to any defense in favor of the Borrower any Loan Party with respect to such action. Notwithstanding the foregoing, upon the occurrence and during the continuation of an Event of Default, the Administrative Agent shall not initiate a Capital Call Notice for the purpose of the repayment of the Obligations for five (5) days following such Event of Default if the Administrative Agent receives written notice from the Borrowers within three (3) days of such Event of Default that the applicable Loan Party intends to issue one or more Capital Calls for the purpose of repaying the Obligations, and in the event such Loan Party so issues such Capital Calls five (5) days following such Event of Default (and simultaneously delivers a copy of each such Capital Call Notice to Administrative Agent), the Administrative Agent shall not issue any Capital Calls for a period of an additional ten (10) Business Days so as to provide the Investors time to respond to such Capital Call. If the Depository with respect to any Collateral Account notifies a Loan Party that it will cease to be the Depository, the applicable Borrower shall have seven (7) days (or such longer period otherwise agreed to by the Administrative Agent in its sole discretion) following notice from the Administrative Agent to move its Collateral Account subject to a new Collateral Account Pledge or Account Control Agreement (if applicable) to a replacement Depository; provided, however, that no Loan Party will issue any Capital Call until such new Collateral Account is subject to a Collateral Account Pledge or an Account Control Agreement (if applicable).

Use of Account; Capital Calls by the Administrative Agent. A The Borrower may withdraw funds from the applicable Collateral Account at any time or from time to time and disburse such funds as the Borrower may direct, so long as at the time of such withdrawal or disbursement and after giving effect thereto, there does not exist a Cash Control Event in respect of such Borrower’s Fund Group (unless, in the case of a Cash Control Event due to a Borrowing Base Deficiency, the Borrower has directed that such disbursement be paid to the Administrative Agent to repay such excess), and any withdrawal from any Collateral Account shall be deemed a representation and warranty that the foregoing condition is satisfied. If the Account Bank with respect to any Collateral Account ceases to be an Eligible Institution, the Borrower shall have thirty (30) days (or such longer period as the Administrative Agent may agree in its sole discretion) following notice from the Administrative Agent to move its Collateral Account to a replacement Account Bank that is SMBC or an Eligible Institution; provided, that if no bank reasonably acceptable to the Administrative Agent and the Borrower is an Eligible Institution, the Borrower will only be required to move its Collateral Account to SMBC if SMBC’s short-term unsecured debt rating is higher than that of the then-current Account Bank. If the Account Bank provides notice of its intent to terminate a Control Agreement, the Borrower shall open a new collateral account that is subject to a new Control Agreement with a replacement Account Bank within thirty (30) days (or such longer period as the Administrative Agent may agree in its sole discretion) of the Borrower, receiving such notice. Notwithstanding anything to the contrary contained in this Credit Agreement or any other Loan Document, each Collateral Account shall, at all times, be subject to a Control Agreement in form and substance reasonably satisfactory to the Administrative Agent. Solely following the occurrence and during the continuance of a Cash Control Event, each the Borrower hereby irrevocably authorizes and directs the Lenders, acting through the Administrative Agent, to charge from time to time the Collateral Accounts for amounts not paid when due to the Lenders or any of them hereunder, under any Letter of Credit Application, under any Letter of Credit or under the Notes. The Administrative Agent, on behalf of the Secured Parties, is hereby authorized, in the name of the Lenders or the Borrower, at any time or from time to time upon the occurrence and while an Event of Default exists, to notify any or all parties obligated to the applicable Fund Group or Fund Groups Borrower with respect to the Capital Commitments to make all payments due or to become due thereon directly to the Administrative Agent on behalf of the Secured Parties, at a different account number, or to initiate one or more Capital Call Notices in order to pay the Obligations. Regardless of any provision hereof, in the absence of gross negligence or willful misconduct by the Administrative Agent, the Lenders or the Letter of Credit Issuer, none of the Administrative Agent, the Lenders or the Letter of Credit Issuer shall ever be liable for failure to collect or for failure to exercise diligence in the collection, possession, or any transaction concerning, all or part of the Collateral, or sums due or paid thereon, nor shall they be under any obligation whatsoever to anyone by virtue of the security interests and liens relating to the Collateral. The Administrative Agent shall give the Borrower prompt notice of any action taken pursuant to this Section 5.02(d), but failure to give such notice shall not affect the validity of such action or give rise to any defense in favor of the Borrower with respect to such action.

Use of Account; Capital Calls by the Administrative Agent. A Borrower may withdraw funds from the applicable Collateral Account at any time or from time to time and disburse such funds as the Borrower may direct, so long as at the time of such withdrawal or disbursement and after giving effect thereto, there does not exist a Cash Control Event in respect of such Borrower’s Fund Group (unless, in the case of a Cash Control Event due to a Borrowing Base Deficiency, the Borrower has directed that such disbursement be paid to the Administrative Agent to repay such excess), and any withdrawal from any Collateral Account shall be deemed a representation and warranty that the foregoing condition is satisfied. If the Account Bank with respect to any Collateral Account ceases to be an Eligible Institution, the Borrower shall have thirty (30) days (or such longer period as the Administrative Agent may agree in its sole discretion) following notice from the Administrative Agent to move its Collateral Account to a replacement Account Bank that is SMBC or an Eligible Institution; provided, that if no bank reasonably acceptable to the Administrative Agent and the Borrower is an Eligible Institution, the Borrower will only be required to move its Collateral Account to SMBC if SMBC’s short-term unsecured debt rating is higher than that of the then-current Account Bank. If the Account Bank provides notice of its intent to terminate a Control Agreement, the Borrower shall open a new collateral account that is subject to a new Control Agreement with a replacement Account Bank within thirty (30) days (or such longer period as the Administrative Agent may agree in its sole discretion) of the Borrower, receiving such notice. Notwithstanding anything to the contrary contained in this Credit Agreement or any other Loan Document, each Collateral Account shall, at all times, be subject to a Control Agreement in form and substance reasonably satisfactory to the Administrative Agent. Solely following the occurrence and during the continuance of a Cash Control Event, each Borrower hereby irrevocably authorizes and directs the Lenders, acting through the Administrative Agent, to charge from time to time the Collateral Accounts for amounts not paid when due to the Lenders or any of them hereunder, under any Letter of Credit Application, under any Letter of Credit or under the Notes. The Administrative Agent, on behalf of the Secured Parties, is hereby authorized, in the name of the Lenders or the Borrower, at any time or from time to time upon the occurrence and while an Event of Default exists, to notify any or all parties obligated to the applicable Fund Group or Fund Groups with respect to the Capital Commitments to make all payments due or to become due thereon directly to the Administrative Agent on behalf of the Secured Parties, at a different account number, or to initiate one or more Capital Call Notices in order to pay the Obligations. Regardless of any provision hereof, in the absence of gross negligence or willful misconduct by the Administrative Agent, the Lenders or the Letter of Credit Issuer, none of the Administrative Agent, the Lenders or the Letter of Credit Issuer shall ever be liable for failure to collect or for failure to exercise diligence in the collection, possession, or any transaction concerning, all or part of the Collateral, or sums due or paid thereon, nor shall they be under any obligation whatsoever to anyone by virtue of the security interests and liens relating to the Collateral. The Administrative Agent shall give the Borrower prompt notice of any action taken pursuant to this Section 5.02(d), but failure to give such notice 68 LEGAL_US_E # 163726163.4 shall not affect the validity of such action or give rise to any defense in favor of the Borrower with respect to such action.