Common use of Acquisition of Collateral Clause in Contracts

Acquisition of Collateral. (a) In the event that, as a result of any Event of Default and the pursuit of any Enforcement Action, any of the Collateral is acquired or to be acquired on behalf of the Lenders, the provisions of this Section 10.6 shall govern the manner in which the Lenders shall acquire, own, operate, manage, administer, lease, and dispose of such Collateral. (b) The Administrative Agent may, in its sole discretion, elect to hold title to the Collateral in an Affiliate of the Administrative Agent (the "Designee") which shall at all times following such acquisition be the designee of the Administrative Agent for the benefit of the Lenders with respect to the ownership, operation, management, administration, leasing, and disposition of the Collateral. 112 (c) As soon as reasonably practicable after the Requisite Lenders have approved the acquisition of any Collateral pursuant to Section 10.5, the Administrative Agent shall prepare a "Post-Foreclosure Plan" which shall, among other things, contain (i) provisions by which operating budgets and capital improvement budgets are developed by the Administrative Agent and approved by the Requisite Lenders, (ii) provisions by which a Hotel management company or companies will be selected for the Collateral, subject to the approval of the Requisite Lenders and (iii) provisions for establishing and revising from time to time, upon approval of the Requisite Lenders, a plan for the marketing and disposition of the Collateral. Upon approval of the Post-Foreclosure Plan by the Requisite Lenders, the Administrative Agent shall be authorized to take (or elect not to take) any and all actions which the Administrative Agent would take (or not take) if it were the sole owner of the Collateral (provided, such actions are consistent with the Post-Foreclosure Plan), using the same diligence and care as customarily used by the Administrative Agent and/or its affiliates with respect to similar property held for its own account, subject only to the limitations, consents, approvals, and directions expressly provided for in the Post-Foreclosure Plan. Except as otherwise provided in a Post-Foreclosure Plan approved by the Requisite Lenders, the Administrative Agent shall not sell or otherwise dispose of any Collateral acquired by it or make any purchase money loan in connection with any sale of such Collateral, except with the prior approval of the Requisite Lenders. (d) From time to time, but not less frequently than quarterly, the Administrative Agent shall (to the extent funds are available for such purpose) make distributions out of Gross Revenues to the Lenders, after payment of the following, in the following order of priority: (i) all actual, out-of-pocket costs and expenses, including attorneys' and paralegals' fees and expenses, filing fees, court costs, title charges, appraisal fees, environmental evaluation costs, and other inspection fees, in each case payable to third parties, incurred by the Administrative Agent on behalf of the Lenders in connection with any actual or contemplated Enforcement Action, or on account of any actual or potential default by any Loan Party under any of the Loan Documents or in connection with any of the Collateral, to the extent not previously reimbursed by the Borrower or otherwise; (ii) any Protective Advances made by the Administrative Agent; (iii) amounts previously advanced by one or more Lenders on account of any default by any other Lender in making any payment or contributions of funds required under this Agreement, the Loan Documents or any agreement hereafter entered into among the Lenders with respect to the Collateral; (iv) fees payable to the Administrative Agent; and (v) amounts of any reserves to be maintained in accordance with the Post-Foreclosure Plan. In no event shall the Administrative Agent be required to make any distributions prior to approval of a Post-Foreclosure Plan by the Requisite Lenders; provided, that any funds which would otherwise be available for distribution shall be maintained in a separate, interest-bearing account for the benefit of the Lenders and shall be distributed promptly upon such approval of a Post-Foreclosure Plan. In addition, promptly after the closing of any sale or disposition of any Collateral, the Administrative Agent shall distribute any net proceeds to the Lenders after payment in full of all amounts described above, to the extent remaining unpaid through the time of such closing. If any sale shall involve any purchase money financing, any purchase money deed of trust or mortgage taken in connection with the disposition of the Collateral shall name the Administrative Agent, as the agent for the Lenders, as the beneficiary or mortgagee. In such case, the Administrative Agent and the Lenders shall be bound by the provisions of this Agreement with respect to such purchase money deed of trust or mortgage defining the rights of the Administrative Agent and the Lenders in the same Ratable Portions as provided herein, insofar as this Agreement is appropriate or applicable, and upon request of the Administrative Agent, the Lenders shall execute and deliver to the Administrative Agent such agreements as the Administrative Agent reasonably may require to confirm or conform this Agreement to the terms and circumstances applicable to such purchase money financings. (e) No Lender shall be entitled to sell, assign, convey, pledge, hypothecate, encumber, or otherwise transfer all or any portion of its ownership interest in the Collateral, except as provided in Section 11.7. (f) The Administrative Agent, in such capacity, shall have no duty or obligation to advance any of its own funds to pay any expense or discharge any obligation of the Lenders or attendant to the Collateral, and the Administrative Agent's duties to discharge its responsibilities under this Section 10.6 shall be limited by the availability of funds received from the Collateral or the Lenders. In the event (i) the Administrative Agent shall at any time have insufficient funds from the 122 Collateral to pay any expense or obligation in connection with the Collateral, or (ii) the necessary funds are not provided by the Lenders after a request therefor by the Administrative Agent, then the Administrative Agent shall take such actions as it deems appropriate to protect and preserve the Collateral to the extent available funds allow, but the Administrative Agent shall not be responsible for any loss or damage to the Collateral or the Lenders, as a result of such unavailability of funds or the Administrative Agent's inability to act as a result thereof.

Acquisition of Collateral. (a) In the event that, as a result of any Event of Default and the pursuit of any Enforcement Action, any of the Collateral is acquired or to be acquired on behalf of the Lenders, the provisions of this Section 10.6 shall govern the manner in which the Lenders shall acquire, own, operate, manage, administer, lease, and dispose of such Collateral. (b) The Administrative Agent may, in its sole discretion, elect to hold title to the Collateral in an Affiliate of the Administrative Agent (the "Designee") which shall at all times following such acquisition be the designee of the Administrative Agent for the benefit of the Lenders with respect to the ownership, operation, management, administration, leasing, and disposition of the Collateral. 112. (c) As soon as reasonably practicable after the Requisite Lenders have approved the acquisition of any Collateral pursuant to Section 10.5, the Administrative Agent shall shall, in 109 117 consultation with the Co-Agents, prepare a "Post-Foreclosure Plan" which shall, among other things, contain (i) provisions by which operating budgets and capital improvement budgets are developed by the Administrative Agent and approved by the Requisite Lenders, (ii) provisions by which a Hotel management company or companies will be selected for the Collateral, subject to the approval of the Requisite Lenders and (iii) provisions for establishing and revising from time to time, upon approval of the Requisite Lenders, a plan for the marketing and disposition of the Collateral. Upon approval of the Post-Foreclosure Plan by the Requisite Lenders, the Administrative Agent shall be authorized to take (or elect not to take) any and all actions which the Administrative Agent would take (or not take) if it were the sole owner of the Collateral (provided, such actions are consistent with the Post-Foreclosure Plan), using the same diligence and care as customarily used by the Administrative Agent and/or its affiliates with respect to similar property held for its own account, subject only to the limitations, consents, approvals, and directions expressly provided for in the Post-Post- Foreclosure Plan. Except as otherwise provided in a Post-Post- Foreclosure Plan approved by the Requisite Lenders, the Administrative Agent shall not sell or otherwise dispose of any Collateral acquired by it or make any purchase money loan in connection with any sale of such Collateral, except with the prior approval of the Requisite Lenders. (d) From time to time, but not less frequently than quarterly, the Administrative Agent shall (to the extent funds are available for such purpose) make distributions out of Gross Revenues to the Lenders, after payment of the following, in the following order of priority: (i) all actual, out-of-pocket costs and expenses, including attorneys' and paralegals' fees and expenses, filing fees, court costs, title charges, appraisal fees, environmental evaluation costs, and other inspection fees, in each case payable to third parties, incurred by the Administrative Agent on behalf of the Lenders in connection with any actual or contemplated Enforcement Action, or on account of any actual or potential default by any Loan Party under any of the Loan Documents or in connection with any of the Collateral, to the extent not previously reimbursed by the Borrower or otherwise; (ii) any Protective Advances made by the Administrative Agent; (iii) amounts previously advanced by one or more Lenders on account of any default by any other Lender in 110 118 making any payment or contributions of funds required under this Agreement, the Loan Documents or any agreement hereafter entered into among the Lenders with respect to the Collateral; (iv) fees payable to the Administrative Agent; and (v) amounts of any reserves to be maintained in accordance with the Post-Foreclosure Plan. In no event shall the Administrative Agent be required to make any distributions prior to approval of a Post-Foreclosure Plan by the Requisite Lenders; provided, that any funds which would otherwise be available for distribution shall be maintained in a separate, interest-bearing account for the benefit of the Lenders and shall be distributed promptly upon such approval of a Post-Post- Foreclosure Plan. In addition, promptly after the closing of any sale or disposition of any Collateral, the Administrative Agent shall distribute any net proceeds to the Lenders after payment in full of all amounts described above, to the extent remaining unpaid through the time of such closing. If any sale shall involve any purchase money financing, any purchase money deed of trust or mortgage taken in connection with the disposition of the Collateral shall name the Administrative Agent, as the agent for the Lenders, as the beneficiary or mortgagee. In such case, the Administrative Agent and the Lenders shall be bound by the provisions of this Agreement with respect to such purchase money deed of trust or mortgage defining the rights of the Administrative Agent and the Lenders in the same Ratable Portions as provided herein, insofar as this Agreement is appropriate or applicable, and upon request of the Administrative Agent, the Lenders shall execute and deliver to the Administrative Agent such agreements as the Administrative Agent reasonably may require to confirm or conform this Agreement to the terms and circumstances applicable to such purchase money financings. (e) No Lender shall be entitled to sell, assign, convey, pledge, hypothecate, encumber, or otherwise transfer all or any portion of its ownership interest in the Collateral, except as provided in Section 11.7. (f) The Administrative Agent, in such capacity, shall have no duty or obligation to advance any of its own funds to pay any expense or discharge any obligation of the Lenders or attendant to the Collateral, and the Administrative Agent's duties to discharge its responsibilities under this Section 10.6 shall be limited by the availability of funds received from the Collateral or the Lenders. In the event (i) the Administrative Agent shall at any time have insufficient funds from the 122 Collateral to pay any expense or obligation in connection with the Collateral, or (ii) the necessary funds are not provided by 111 119 the Lenders after a request therefor by the Administrative Agent, then the Administrative Agent shall take such actions as it deems appropriate to protect and preserve the Collateral to the extent available funds allow, but the Administrative Agent shall not be responsible for any loss or damage to the Collateral or the Lenders, as a result of such unavailability of funds or the Administrative Agent's inability to act as a result thereof.