Common use of Subscription Account Clause in Contracts

Subscription Account. (i) In order to secure further the performance by the Investor REIT of the Investor REIT Obligations and to effect and facilitate the right of the Secured Parties to offset while any Obligations are outstanding, (A) the Investor REIT hereby irrevocably appoints the Agent as subscription agent and the sole party entitled in the name of the Investor REIT, upon the occurrence and during the continuance of an Event of Default, to make any Capital Calls upon the Investors pursuant to the terms of the Subscription Agreements or the Investor REIT's Constituent Documents, and (B) the Investor REIT shall direct each Investor to wire transfer to the Subscription Account all monies or sums paid or to be paid by such Investor to the Investor REIT to fund such Investor's Capital Commitment as and when such Investor is required pursuant to its Subscription Agreement or the Investor REIT's Constituent Documents to fund such Capital Commitment. In addition, to the extent that the Investor REIT receives any payments of Capital Contributions from the Investors during the term of this Agreement, it shall immediately deposit such payments upon receipt into the Subscription Account. (ii) Notwithstanding anything to the contrary herein contained, it is expressly understood and agreed that neither the Agent nor any other Secured Party undertakes any duties, responsibilities, or liabilities with respect to Capital Calls. Neither the Agent nor any other Secured Party shall be required to refer to the Investor REIT's Constituent Documents or Subscription Agreements or take any other action with respect to any other matter which might arise in connection with the Investor REIT's Constituent Documents or Subscription Agreements or any Capital Call. Neither the Agent nor any other Secured Party shall have any duty to determine or inquire into any happening or occurrence or any performance or failure of performance of any Credit Party or any Investor. Neither the Agent nor any other Secured Party has any duty to inquire into the use, purpose, or reasons for the making of any Capital Call or with respect to the investment or use of the proceeds thereof. (iii) Except as provided in Section 2.19(b)(iv), the Investor REIT shall have no right to withdraw any funds from the Subscription Account if, at the time thereof or after giving effect thereto, (A) the sum of the Revolving Credit Exposures shall exceed the sum of (x) the balance remaining in the Subscription Account plus (y) the Available Borrowing Amount or (B) there shall exist any Default in the payment of any amount under this Agreement, any incurable Default of any kind, or any Event of Default of any kind. Any withdrawal permitted to be made by the Investor REIT from the Subscription Account may be used only for uses permitted hereunder, subject to the terms hereof and the Cash Collateral Agreement. (iv) The Investor REIT hereby irrevocably authorizes and directs the Secured Parties, acting through the Agent, at any time following the occurrence and during the continuance of an Event of Default while any Obligations are outstanding, to charge from time to time the Subscription Account and any other accounts of the Investor REIT at any of the Secured Parties for amounts due to the Secured Parties or any of them hereunder. The Agent, on behalf of and in the name of the Secured Parties, is hereby authorized, in the name of the Investor REIT, at any time or from time to time following the occurrence and during the continuance of an Event of Default while any Obligations are outstanding, to notify any or all parties obligated to the Investor REIT with respect to the Capital Commitments to make all payments due or to become due thereon directly to the Agent on behalf of the Secured Parties, at a different account number, or to initiate one or more Capital Calls of the Capital Commitments in order to establish cash collateral for the Letters of Credit as contemplated by Section 2.04(j) and Section 6.04 or to pay Obligations or Investor REIT Obligations. With or without such general notification, following the occurrence and during the continuance of an Event of Default while any Obligations or Investor REIT's Obligations are outstanding, the Agent, on behalf of the Secured Parties, (i) may make Capital Calls in the Investor REIT's name (to the extent such Capital Call is permitted under the Subscription Agreements or the Investor REIT's Constituent Documents), (ii) may take or bring in the Investor REIT's name (to the extent permitted under the Subscription Agreements or the Investor REIT's Constituent Documents) all steps, actions, suits or proceedings deemed by the Agent necessary or desirable to effect possession or collection of payments, (iii) may complete in the Investor REIT's name any contract or agreement of the Investor REIT (to the extent permitted under the Subscription Agreements or the Investor REIT's Constituent Documents) required to realize upon the Capital Commitments, (iv) may compromise in the Investor REIT's name any claims related to the Capital Commitments, (v) may extend credit in its own name or the name of the Investor REIT (to the extent permitted under the Subscription Agreements or the Investor REIT's Constituent Documents), or (vi) may exercise in the Investor REIT's name any right, privilege, power or remedy available to the Investor REIT (without limiting any waiver of defenses by any Investor to the exercise of any such right, privilege, power or remedy) to realize upon the Capital Commitments. Regardless of any provision hereof, in the absence of gross negligence or willful misconduct by the Agent or the other Secured Parties, neither the Agent nor any of the other Secured Parties 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 Capital Calls or Capital Commitments or sums due or paid thereon, nor shall they be under any obligation whatsoever to anyone by virtue of the security interest and Liens relating to the Capital Calls or Capital Commitments. (v) The Agent, on behalf of the Secured Parties, is hereby authorized and empowered, following the occurrence and during the continuance of an Event of Default while any Letter of Credit or any Obligation is outstanding, on behalf of the Investor REIT, to endorse the name of the Investor REIT upon any check, draft, instrument, receipt, instruction or other document or items, including all items evidencing payment upon a Capital Call of any Person to the Investor REIT coming into the Agent's possession, and to receive and apply the proceeds therefrom in accordance with the terms of the Cash Collateral Agreement, the Pledge and Security Agreement, or this Agreement. The Agent, on behalf of the Secured Parties, is hereby granted an irrevocable power of attorney, which is coupled with an interest, to execute all checks, drafts, receipts, instruments, instructions or other documents, agreements, or items on behalf of the Investor REIT, either before or after demand of payment on the Loans or any other Obligation or Investor REIT Obligation, but only following the occurrence and during the continuance of an Event of Default, as shall reasonably be deemed by the Agent to be necessary or advisable to protect the security interests and Liens in the Capital Commitments or any other Collateral or to obtain payment and performance of any past-due Obligations, and neither the Agent nor any other Secured Party shall incur any liability in connection with or arising from its exercise of such power of attorney in the absence of gross negligence or willful misconduct. (vi) Notwithstanding anything to the contrary contained in this Agreement, upon the occurrence and during the continuation of an Event of Default, the Investor REIT shall be permitted within eighteen (18) days thereafter to make a single Capital Call provided (i) the proceeds of such Capital Call are deposited into the Subscription Account, (ii) the Investor REIT directs that such proceeds together with any other funds held in the Subscription Account shall be withdrawn by the Agent to prepay the Loans in their entirety and to provide cash collateral for all Letters of Credit, together with costs, expenses, funding losses, indemnities, interest and penalties incurred as expressly contemplated in this Agreement and (iii) the Commitments are terminated. (vii) The application by the Secured Parties of such funds hereunder shall be, unless the Agent shall otherwise agree in writing, first, to the payment of reasonable costs and expenses due the Secured Parties under this Agreement and the other Loan Documents, second, to the payment of accrued interest due on each Loan and unreimbursed LC Disbursement, third, to the payment of the principal of each Loan and to the payment of unreimbursed LC Disbursements, fourth, to the establishment of cash collateral for outstanding Letters of Credit, fifth, to all other Obligations and any amounts due under any other Loan Documents, and, sixth, to the Investor REIT or to such other Person as may be entitled thereto.

Subscription Account. (i) In order to secure further the payment of the Notes and the performance by the Investor REIT Loan Parties of the Investor REIT their respective Obligations and to effect and facilitate the right of the Secured Parties Lenders to offset offset, while any Obligations obligations are outstanding, (A) each of the Investor REIT Loan Parties hereby irrevocably appoints (directly or via collateral assignment) the Administrative Agent as subscription agent and the sole party entitled in the name of the Investor REIT, Parent Borrower to make any Subscription Calls upon the Investors upon the occurrence and during the continuance of an Event of Default, Default (but only during the continuance thereof and subject to make any Capital Calls upon the Investors Sections 7.03 and 7.04 hereof) pursuant to the terms of the respective Subscription Agreements (now existing or the Investor REIT's Constituent Documentshereafter created), and (B) the Investor REIT Parent Borrower shall direct each Investor all of the Investors to wire transfer to the Subscription Account all monies or sums paid or to be paid by such Investor to the Investor REIT Investors to fund such Investor's Capital Commitment their Subscription Obligations as and when such Investor is the Investors are required pursuant to its their respective Subscription Agreement or the Investor REIT's Agreements and Constituent Documents to fund such Capital CommitmentSubscription Obligations. In addition, to the extent that the Investor REIT a Loan Party receives any payments of Capital Contributions and monies from the Investors an Investor during the term of this Agreement, it shall immediately deposit such payments and monies upon receipt into the Subscription Account. (ii) Notwithstanding anything to the contrary herein contained, it is expressly understood and agreed that neither the Administrative Agent nor any other Secured Party undertakes the Lenders undertake any duties, responsibilities, or liabilities with respect to Capital the Subscription Calls. Neither the Administrative Agent nor any other Secured Party the Lenders shall be required to refer to the Investor REIT's any Loan Party’s Constituent Documents or the Subscription Agreements or take any other action with respect to any other matter which might arise in connection with any Loan Party’s Constituent Documents, the Investor REIT's Constituent Documents or Subscription Agreements or any Capital Subscription Call. Neither the Administrative Agent nor any other Secured Party shall have the Lenders has any duty to determine or inquire into any happening or occurrence or any performance or failure of performance of any Credit Party or any InvestorLoan Party. Neither the Administrative Agent nor any other Secured Party the Lenders has any duty to inquire into the use, purpose, or reasons for the making of any Capital Subscription Call or with respect to the investment or use of the proceeds thereof. (iii) Provided that (A) the Administrative Agent has received notice of the applicable Subscription Call as required by Section 5.01(n) and a Borrowing Base Certificate as required by Section 5.01(o), (B) no monetary Default and no Event of Default shall have occurred and be continuing and (C) the Available Commitment exceeds the Total Revolving Credit Exposure, then the Administrative Agent shall disburse funds from the Subscription Account as directed by the Parent Borrower. Except as provided in clause (iv) of this Section 2.19(b)(iv4.03(b), or otherwise for the Investor REIT purpose of curing an outstanding Default under Section 7.01(a), upon the occurrence and during the continuance of a monetary Default or any Event of Default or if the Total Revolving Credit Exposure exceeds Available Commitment, no Loan Party shall have no any right to withdraw request a disbursal of any funds from the Subscription Account if, at the time thereof or after giving effect thereto, (A) the sum of the Revolving Credit Exposures shall exceed the sum of (x) the balance remaining in the Subscription Account plus (y) the Available Borrowing Amount or (B) there shall exist any Default in the payment of any amount under this Agreement, any incurable Default of any kind, or any Event of Default of any kind. Any withdrawal permitted to be made by the Investor REIT from the Subscription Account may be used only for uses permitted hereunder, subject to the terms hereof and the Cash Collateral AgreementAccount. (iv) The Investor REIT Each Loan Party hereby irrevocably authorizes and directs the Secured Parties▇▇▇▇▇▇▇, acting through the Administrative Agent, at any time following the occurrence and during the continuance of an Event of Default while any Obligations are outstanding, to charge from time to time the Subscription Account and any other accounts of such Loan Party at the Investor REIT at any of the Secured Parties Lenders for amounts due from such Loan Party to the Secured Parties Lenders or any of them hereunderhereunder and under the Notes or any Letters of Credit. The Administrative Agent, on behalf of and in the name of the Secured PartiesLenders, is hereby ▇▇▇▇▇▇ authorized, in the name of the Investor REITany Loan Party, at any time or from time to time following the occurrence and during the continuance of an Event of Default while any Obligations are outstanding, to notify any ny-2788047 or all parties obligated to the Investor REIT Parent Borrower with respect to the Capital Commitments Subscription Obligations to make all payments due or to become due thereon directly to the Administrative Agent on behalf of the Secured PartiesLenders, at a different account number, or to initiate one or more Capital Subscription Calls of the Capital Commitments Subscription Obligations in order to establish cash collateral for pay the Letters of Credit as contemplated by Section 2.04(j) and Section 6.04 or to pay Obligations or Investor REIT ObligationsLoans. With or without such general notification, following the occurrence and during the continuance of an Event of Default while any Obligations or Investor REIT's Obligations are outstanding, the Agent, on behalf of the Secured Parties, (i) may make Capital Calls in the Investor REIT's name (to the extent such Capital Call is permitted under the Subscription Agreements or the Investor REIT's Constituent Documents), (ii) may take or bring in the Investor REIT's name (to the extent permitted under the Subscription Agreements or the Investor REIT's Constituent Documents) all steps, actions, suits or proceedings deemed by the Agent necessary or desirable to effect possession or collection of payments, (iii) may complete in the Investor REIT's name any contract or agreement of the Investor REIT (to the extent permitted under the Subscription Agreements or the Investor REIT's Constituent Documents) required to realize upon the Capital Commitments, (iv) may compromise in the Investor REIT's name any claims related to the Capital Commitments, (v) may extend credit in its own name or the name of the Investor REIT (to the extent permitted under the Subscription Agreements or the Investor REIT's Constituent Documents), or (vi) may exercise in the Investor REIT's name any right, privilege, power or remedy available to the Investor REIT (without limiting any waiver of defenses by any Investor to the exercise of any such right, privilege, power or remedy) to realize upon the Capital Commitments. Regardless of any provision hereof, in the absence of gross negligence or willful misconduct by the Agent or the other Secured Parties, neither the Agent nor any of the other Secured Parties 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 Capital Calls or Capital Commitments or sums due or paid thereon, nor shall they be under any obligation whatsoever to anyone by virtue of the security interest and Liens relating to the Capital Calls or Capital Commitments. (v) The Agent, on behalf of the Secured Parties, is hereby authorized and empowered, following the occurrence and during the continuance of an Event of Default while any Letter of Credit or any Obligation is outstanding, on behalf of the Investor REIT, to endorse the name of the Investor REIT upon any check, draft, instrument, receipt, instruction or other document or items, including all items evidencing payment upon a Capital Call of any Person to the Investor REIT coming into the Agent's possession, and to receive and apply the proceeds therefrom in accordance with the terms of the Cash Collateral Agreement, the Pledge and Security Agreement, or this Agreement. The Agent, on behalf of the Secured Parties, is hereby granted an irrevocable power of attorney, which is coupled with an interest, to execute all checks, drafts, receipts, instruments, instructions or other documents, agreements, or items on behalf of the Investor REIT, either before or after demand of payment on the Loans or any other Obligation or Investor REIT Obligation, but only following the occurrence and during the continuance of an Event of Default, as shall reasonably be deemed by the Agent to be necessary or advisable to protect the security interests and Liens in the Capital Commitments or any other Collateral or to obtain payment and performance of any past-due Obligations, and neither the Agent nor any other Secured Party shall incur any liability in connection with or arising from its exercise of such power of attorney in the absence of gross negligence or willful misconduct. (vi) Notwithstanding anything to the contrary contained in this Agreement, upon the occurrence and during the continuation of an Event of Default, the Investor REIT shall be permitted within eighteen (18) days thereafter to make a single Capital Call provided (i) the proceeds of such Capital Call are deposited into the Subscription Account, (ii) the Investor REIT directs that such proceeds together with any other funds held in the Subscription Account shall be withdrawn by the Agent to prepay the Loans in their entirety and to provide cash collateral for all Letters of Credit, together with costs, expenses, funding losses, indemnities, interest and penalties incurred as expressly contemplated in this Agreement and (iii) the Commitments are terminated. (vii) The application by the Secured Parties of such funds hereunder shall be, unless the Agent shall otherwise agree in writing, first, to the payment of reasonable costs and expenses due the Secured Parties under this Agreement and the other Loan Documents, second, to the payment of accrued interest due on each Loan and unreimbursed LC Disbursement, third, to the payment of the principal of each Loan and to the payment of unreimbursed LC Disbursements, fourth, to the establishment of cash collateral for outstanding Letters of Credit, fifth, to all other Obligations and any amounts due under any other Loan Documents, and, sixth, to the Investor REIT or to such other Person as may be entitled thereto.subject to