Application of Payments of Principal. Notwithstanding anything to the contrary contained in this Agreement, the following principal payments or prepayments shall be allocated between the Loan and the Mezzanine Loan as follows: (a) so long as no Event of Default shall have occurred and be continuing, any voluntary prepayment shall be applied pro rata to the Debt and the Mezzanine Debt until the Debt and the Mezzanine Debt are paid in full; provided, however, that upon the occurrence and during the continuance of an Event of Default, Lender shall apply any voluntary prepayment first, to payment of the Debt, in any order, priority and proportions as Lender shall elect from time to time, until the Debt is paid in full, and shall then disburse any remainder to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (ii) any balance to Borrowers; (b) all Net Proceeds not required to be made available for Restoration shall be applied first to the Debt, in any order, priority and proportions as Lender shall elect from time to time, until the Debt is paid in full, and then, as a distribution permitted under applicable law, (i) disbursed to Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (ii) the balance disbursed to Borrowers; (c) any Reserve Funds or other cash collateral held by or on behalf of Lender, whether in the Cash Management Account, as Reserve Funds or otherwise, including any Net Proceeds then being held by Lender, shall, upon the occurrence and during the continuance of an Event of Default, be applied by Lender as follows or may continue to be held by Lender as additional collateral for the Loan, all in Lender’s discretion: first, to the Debt, in any order, priority and proportions as Lender shall elect from time to time, until the Debt is paid in full and then, as a distribution permitted under applicable law, (i) disbursed to Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (ii) the balance disbursed to Borrowers; and (d) all Rents and/or Vacant Space Rent received by Lender upon the occurrence and during the continuance of an Event of Default pursuant to Section 3.1 of the Assignment of Leases shall be applied by Lender as follows or may continue to be held by Lender as additional collateral for the Loan, all in Lender’s discretion: first, (i) to the expenses of managing and securing the Properties, as contemplated by clause (a) of Section 3.1 of such Assignment of Leases, and/or (ii) to the Debt, in any order, priority and proportions as Lender shall elect in its discretion from time to time, until the Debt is paid in full, and then (A) disbursed to Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (B) the balance disbursed to Borrowers.
Appears in 3 contracts
Samples: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc)
Application of Payments of Principal. Notwithstanding anything to the contrary contained in this Agreement, the following principal payments or prepayments shall be allocated between among the Loan and the Mezzanine Loan as follows:
(a) so long as no Event of Default shall have occurred and be continuing, any voluntary prepayment by Borrowers or Mezzanine Borrower shall be allocated by Lender or Mezzanine Lender as the case may be, so that (i) a portion of any such prepayment shall be paid to, and applied by, Lender to the Debt as a prepayment thereof (subject to the provisions set forth in Section 2.4.1 hereof), and (ii) the remaining portion of such prepayment shall be applied by Mezzanine Lender to the Mezzanine Debt as prepayment thereof in accordance with Section 2.4.1 of the Mezzanine Loan Agreement, provided that (x) such allocation of any such voluntary payments, as between Lender and Mezzanine Lender, shall be made pro rata in accordance with the respective Financing Percentages (as were in effect immediately prior to such prepayment or payment of the Release Price, as the case may be) until the Mezzanine Debt and the Mezzanine Debt until the Debt and the Mezzanine Debt are paid in full, which Financing Percentages shall be calculated by Lender as of the time immediately prior to such prepayment; providedand (y) in respect of the portion of any such prepayment which is to be paid to Mezzanine Lender, howeverMezzanine Borrower shall be obligated to pay the yield maintenance premium contemplated in Section 2.4.1 of the Mezzanine Loan Agreement. Notwithstanding the forgoing provisions of this clause (a) to the contrary, that upon the occurrence and during the continuance of an Event of Default, Lender shall be required to apply its share of any voluntary prepayment firstmade by Borrowers or Mezzanine Borrowers pursuant to this Section 2.6.4(a), to the payment of the DebtObligations of a monetary nature owed to Lender under the Loan Documents, or to the obligations of a monetary nature owed to Mezzanine Lender under the Mezzanine Loan Documents in any order, priority and proportions as Lender shall elect in its sole discretion from time to time, until provided that at such time as all of the Debt is Obligations of a monetary nature owed to Lender under the Loan Documents are paid in full, and shall then disburse any remainder of such voluntary prepayment shall be paid to Mezzanine Lender, as a distribution permitted by applicable law, within two (i2) Mezzanine Lender Business Days thereafter, for application in accordance with the terms of the Mezzanine Loan Agreement Documents if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full. Within two (2) Business Days after the Mezzanine Debt is paid in full, and then (ii) any remaining balance to of such voluntary prepayment shall be disbursed Borrowers;
(b) all Net Proceeds not required to be made available for Restoration shall be applied as follows (provided if any Net Proceeds shall have been applied to pay for any Restoration, it shall be a condition to making such application that Lender shall have received any required certificate of occupancy relative to the Restoration and evidence reasonably satisfactory to lender that such Restoration is complete and all Persons doing work in respect of such Restoration have been paid in full): first to the DebtObligations of a monetary nature, in any order, priority and proportions as Lender shall elect in its sole discretion from time to time, until the Debt is Obligations of a monetary nature owed to Lender are paid in full, and then, then (i) disbursed to Mezzanine Lender as a distribution permitted under applicable law, within two (i2) disbursed to Mezzanine Lender Business Days after the Debt and any Other Obligations of a monetary nature are paid in full, for application in accordance with the terms of the Mezzanine Loan Agreement Documents if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (ii) the balance disbursed to BorrowersBorrowers within two (2) Business Days after the Mezzanine Debt is paid in full;
(c) any Reserve Funds or other cash collateral held by or on behalf of Lender, whether in the Cash Management Account, as Reserve Funds Account or otherwise, including including, without limitation, any Net Proceeds then being held by Lender, shall, upon the occurrence and during the continuance of an Event of Default, be applied in one of the following ways, as applicable, as determined by Lender as follows or in its sole discretion: (i) in the case of Reserve Funds, such sums may continue to be held by Lender as additional for application to the purpose for which such Reserve Funds were reserved in Article 7 hereof, (ii) in the case of other cash collateral for held by or on behalf of Lender, whether in the LoanCash Management Account or otherwise, all including, without limitation, any Net Proceeds then being held by Lender, such sums may either be applied, in Lender’s discretion: sole discretion to (A) pay expenses related to the Properties, or be deposited by Lender into any of the accounts for Reserve Funds set forth in Article 7 hereof, or (iii) in the case of Reserve Funds or other cash collateral held by or on behalf of Lender, whether in the Cash Management Account or otherwise, including, without limitation, any Net Proceeds, such sums may be applied by Lender to the following (in the following order): first, to the DebtDebt or Other Obligations of a monetary nature, in any order, priority and proportions as Lender shall elect in its sole discretion from time to time, until the Debt is all Obligations of a monetary nature owed to Lender are paid in full full, and then, as a distribution permitted under applicable law, within two (i2) Business Days thereafter, disbursed to Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement Documents if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (ii) the balance disbursed to BorrowersBorrowers within two (2) Business Days after the Mezzanine Debt is paid in full; and
(d) all Rents and/or Vacant Space Rent received by Lender upon the occurrence and during the continuance of an Event of Default pursuant to Section 3.1 of the Assignment Assignments of Leases shall be applied by Lender to any of the following , as follows or may continue to be held determined by Lender as additional collateral for the Loan, all in Lender’s its sole discretion: first, (i) to the pay expenses of managing and securing related to the Properties, as contemplated by clause (a) of Section 3.1 of such Assignment of Leases, and/or (ii) to be deposited by Lender into any of the Debtaccounts for Reserve Funds set forth in Article 7 hereof, and/or (iii) to the application of the following (in the following order): first to the Debt and Other Obligations of a monetary nature, in any order, priority and proportions as Lender shall elect in its sole discretion from time to time, until the Debt is all Obligations of a monetary nature owed to Lender are paid in full, and then then, as a distribution permitted under applicable law, within two (2) Business Days and second after all such Debt and Other Obligations of a monetary nature have been paid in full, (A) to be disbursed to Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement Documents if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (B) the balance to be disbursed to BorrowersBorrowers within two (2) Business Days after the Mezzanine Debt is paid in full.
Appears in 2 contracts
Samples: Loan Agreement (Cole Credit Property Trust Inc), Loan Agreement (Cole Credit Property Trust III, Inc.)
Application of Payments of Principal. Notwithstanding anything to the contrary contained in this Agreement, the following principal payments or prepayments shall be allocated between the Loan and the Mezzanine Mortgage Loan as follows:
(a) prior to the Mortgage Prepayment Lockout Expiration Date, any voluntary prepayment of the Loan shall be applied to the Debt in any order, priority and proportions as Lender shall elect from time to time, until the Debt is paid in full;
(b) on and after the Mortgage Prepayment Lockout Expiration Date, so long as no Mortgage Event of Default shall have occurred and be continuing, any voluntary prepayment of the Loan or the Mortgage Loan, shall be applied pro rata to the Debt and the Mezzanine Mortgage Debt until the Debt and the Mezzanine Mortgage Debt are paid in full; provided, however, that upon the occurrence and during the continuance of an a Mortgage Event of Default, Mortgage Lender shall apply any voluntary prepayment first, to payment of the Mortgage Debt, in any order, priority and proportions as Mortgage Lender shall elect from time to time, until the Mortgage Debt is paid in full, and shall then disburse any remainder to (i) Lender, to be applied to the Debt in any order, priority and proportions as Lender shall elect from time to time, until the Debt is paid in full, and shall then disburse any remainder to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (ii) any balance to Borrowers;
(bc) all Net Proceeds not required to be made available for Restoration shall be applied first to the Mortgage Debt, in any order, priority and proportions as Mortgage Lender shall elect from time to time, until the Mortgage Debt is paid in full, and then, as a distribution permitted under applicable law, (i) disbursed to Lender, to be applied to the Debt, in any order, priority and proportions as Lender shall elect from time to time, until the Debt is paid in full, and then (ii) the balance disbursed to Borrowers;
(d) any Mortgage Loan Reserve Funds or other cash collateral held by or on behalf of Mortgage Lender, whether in the Mortgage Cash Management Account, as Mortgage Loan Reserve Funds or otherwise, including any Net Proceeds then being held by Mortgage Lender, shall, upon the occurrence and during the continuance of an Event of Default, be applied by Mortgage Lender as follows or may continue to be held by Mortgage Lender as additional collateral for the Mortgage Loan, all in Mortgage Lender’s discretion: first, to the Mortgage Debt, in any order, priority and proportions as Mortgage Lender shall elect from time to time, until the Mortgage Debt is paid in full, and then, as a distribution permitted under applicable law, (i) disbursed to Mezzanine Lender, to be applied to the Debt, in any order, priority and proportions as Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstandingshall elect from time to time, until the Mezzanine Debt is paid in full, and then (ii) the balance disbursed to Borrowers;
(ce) any Reserve Funds or other cash collateral held by or on behalf of Lender, whether in the Mezzanine Cash Management Account, as Reserve Funds or otherwise, including any Net Proceeds then being held by Lender, shall, upon the occurrence and during the continuance of an Event of Default, be applied by Lender as follows or may continue to be held by Lender as additional collateral for the Loan, all in Lender’s discretion: first, to the Debt, in any order, priority and proportions as Lender shall elect from time to time, until the Debt is paid in full and then, as a distribution permitted under applicable law, (i) disbursed to Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (ii) the balance disbursed to Borrowers; and
(df) all Rents and/or Vacant Space Rent received by Mortgage Lender upon the occurrence and during the continuance of an a Mortgage Event of Default pursuant to Section 3.1 of the Assignment of Leases shall be applied by Mortgage Lender as follows or may continue to be held by Mortgage Lender as additional collateral for the Mortgage Loan, all in Mortgage Lender’s discretion: first, (i) to the expenses of managing and securing the Properties, as contemplated by clause (a) of Section 3.1 of such Assignment of Leases, and/or (ii) to the Mortgage Debt, in any order, priority and proportions as Lender shall elect in its discretion from time to time, until the Debt is paid in full, and then (A) disbursed to Mezzanine Lender, to be applied to the Debt, in any order, priority and proportions as Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstandingshall elect from time to time, until the Mezzanine Debt is paid in full, and then (B) the balance disbursed to Borrowers.
Appears in 2 contracts
Samples: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (MPG Office Trust, Inc.)
Application of Payments of Principal. Notwithstanding anything to the contrary contained in this Agreement, the following principal payments or prepayments shall be allocated between among the Mortgage Loan and the Mezzanine Loan as follows:
(a) so long as no Event of Default shall have occurred and be continuing, any voluntary prepayment of the Loan shall be applied pro rata to the Debt and the Mezzanine Debt until the Debt and the Mezzanine Debt are is paid in full; , provided, however, that upon the occurrence and during the continuance of an Event of Default, Lender shall apply any voluntary prepayment first, to payment of the Debt, in any order, priority and proportions as Lender shall elect in its sole discretion from time to time, until the Debt is paid in full, and shall then disburse any remainder to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (ii) any balance to Borrowers;Borrower; and
(b) all Net Proceeds not required to be made available for Restoration shall be applied first to the Mortgage Debt, in any order, priority and proportions as Mortgage Lender shall elect in its sole discretion from time to time, until the Mortgage Debt is paid in full, and then applied to the Debt, in any order, priority and proportions as Lender shall elect in its sole discretion from time to time, until the Debt is paid in full, and then, as a distribution permitted under applicable law, (i) disbursed to Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (ii) the balance disbursed to BorrowersBorrower;
(c) any Reserve Funds Funds, Excess Cash Flow or other cash collateral held by or on behalf of Lender, whether in the Cash Management Account, as the Tax and Insurance Escrow Account, the FF&E Reserve Funds Account or otherwise, including including, without limitation, any Net Proceeds then being held by Lender, shall, upon the occurrence and during the continuance of an Event of Default, be applied by Lender as follows or may continue to be held by Lender as additional collateral for the Loan, all in Lender’s sole discretion: first, to the Debt, in any order, priority and proportions as Lender shall elect in its sole discretion from time to time, until the Debt is paid in full full, and then, as a distribution permitted under applicable law, (i) the balance disbursed to Mezzanine Lender for application Borrower;
(d) subject to Section 2.8.4 hereof, the proceeds of any Required Release Price shall be allocated among the Mortgage Loan and, to the extent not otherwise prohibited by the Mortgage Loan Documents, the Loan pro rata in accordance with the terms Financing Percentages, which Financing Percentages shall be calculated as of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (ii) the balance disbursed to Borrowersdate of payment of such Release Price; and
(de) all Rents and/or Vacant Space Rent received by Mortgage Lender upon the occurrence and during the continuance of an a Mortgage Event of Default pursuant to Section 3.1 of the any Assignment of Leases shall be applied by Mortgage Lender as follows or may continue to be held by Mortgage Lender as additional collateral for the Mortgage Loan, all in Mortgage Lender’s sole discretion: first, (i) to the expenses of managing and securing the PropertiesProperty, as contemplated by clause (a) of Section 3.1 of such Assignment of Leases, and/or (ii) to the Mortgage Debt, in any order, priority and proportions as Mortgage Lender shall elect in its sole discretion from time to time, until the Mortgage Debt is paid in full, and then (A) disbursed to Lender for application to the Debt, in any order, priority and proportions as Lender shall elect in its sole discretion from time to time, until the Debt is paid in full, and then (A) disbursed to Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (B) the balance disbursed to BorrowersBorrower.
Appears in 1 contract
Samples: First Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Application of Payments of Principal. Notwithstanding anything to the contrary contained in this Agreement, the following principal payments or prepayments shall be allocated between the Loan and the Mezzanine Loan as follows:
(a) so long as provided that no Event of Default shall have has occurred and be continuingno Default exists, any voluntary prepayment of the Loan identified as such shall be applied pro rata allocated only to the Debt and the Mezzanine Debt until the Debt and the Mezzanine Debt are paid in full; provided, however, that upon the occurrence and during the continuance of an Event of Default, Lender shall apply any voluntary prepayment first, to payment of the Debt, in any order, priority and proportions as Lender shall elect from time to time, until the Debt is paid in full, and shall then disburse any remainder to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (ii) any balance to BorrowersLoan;
(b) all Net Proceeds not required to be made available for Restoration shall be applied first to the Debt, in any order, priority and proportions as Lender shall elect from time to time, Debt until the Debt is paid in full, and then, as a distribution permitted under applicable law, (i) disbursed to Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (ii) the balance disbursed to Borrowers;
(c) any Reserve Funds or other cash collateral held by the Agent or by or on behalf of Lenderthe Lender (other than amounts on deposit in the Security Deposit Account), whether in the Cash Management Account, as the Tax and Insurance Escrow Reserve Funds Account, the CapEx Reserve Account, the Renovations Reserve Fund, the Excess Cash Flow Reserve Account or otherwise, including including, without limitation, any Net Proceeds then being held by Lenderthe Agent, shallshall be applied by the Agent, upon the occurrence and during the continuance of following an Event of Default, be applied by Lender as follows or may continue to be held by Lender as additional collateral for the Loan, all in Lender’s discretion: first, to the Debt, in any order, priority and and/or proportions as Lender the Agent shall elect in its sole discretion from time to time, until the Debt is paid in full and thenor, if so elected by the Agent, may be held by the Agent as a distribution permitted under applicable lawadditional collateral for the Loan, (i) disbursed to Mezzanine Lender for application all as determined by the Agent in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (ii) the balance disbursed to BorrowersAgent’s sole discretion; and
(d) all Rents and/or Vacant Space Rent received by Lender upon the occurrence and during the continuance of Agent following an Event of Default Default, pursuant to Section 3.1 of the Assignment of Leases Leases, shall be applied by Lender the Agent as follows or may continue to be held by Lender the Agent as additional collateral for the Loan, all in Lenderthe Agent’s sole discretion: first, (i) first, to the expenses of managing and securing the PropertiesProperties or any portion thereof, as contemplated by clause (a) of said Section 3.1 of such the Assignment of Leases, and/or (ii) second, to the Debt, in any order, priority and proportions as Lender shall elect in its discretion from time to time, Debt until the Debt is paid in full, and then (A) disbursed to Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (B) the balance disbursed to Borrowers.
Appears in 1 contract
Application of Payments of Principal. Notwithstanding anything to the contrary contained in this Agreement, the following principal payments or prepayments shall be allocated between the Loan and the Mezzanine Loan as follows:
(a) so long as no Event of Default shall have occurred and be continuing, any voluntary prepayment shall be applied pro rata to the Debt and the Mezzanine Debt until the Debt and the Mezzanine Debt are paid in full; provided, however, that upon the occurrence and during the continuance of an Event of Default, Lender shall apply any voluntary prepayment first, to payment of the Debt, in any order, priority and proportions as Lender shall elect from time to time, until the Debt is paid in full, and shall then disburse any remainder to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (ii) any balance to Borrowersintentionally omitted;
(b) all Net Proceeds not required to be made available for Restoration shall be applied first to the Debt, in any order, priority and proportions as Lender shall elect from time to time, until the Debt is paid in full, and then, as a distribution permitted under applicable law, (i) disbursed to Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (ii) the balance disbursed to BorrowersBorrower;
(c) any Reserve Funds or other cash collateral held by or on behalf of Lender, whether in the Cash Management Account, as Reserve Funds or otherwise, including any Net Proceeds then being held by Lender, shall, upon the occurrence and during the continuance of an Event of Default, be applied by Lender as follows or may continue to be held by Lender as additional collateral for the Loan, all in Lender’s discretion: first, to the Debt, in any order, priority and proportions as Lender shall elect from time to time, until the Debt is paid in full full, and then, as a distribution permitted under applicable law, (i) disbursed to Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (ii) the balance disbursed to BorrowersBorrower; and
(d) all Rents and/or Vacant Space Rent received by Lender upon the occurrence and during the continuance of an Event of Default pursuant to Section 3.1 of the Assignment of Leases shall be applied by Lender as follows or may continue to be held by Lender as additional collateral for the Loan, all in Lender’s discretion: first, (i) to the expenses of managing and securing the PropertiesProperty, as contemplated by clause (a) of Section 3.1 of such Assignment of Leases, and/or (ii) to the Debt, in any order, priority and proportions as Lender shall elect in its discretion from time to time, until the Debt is paid in full, and then (A) disbursed to Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (B) the balance disbursed to BorrowersBorrower.
Appears in 1 contract
Application of Payments of Principal. Notwithstanding anything to the contrary contained in this Agreement, the following principal payments or prepayments shall be allocated between the Loan and the Mezzanine Loan as follows:
(a) so long as no Event of Default shall have occurred and be continuing, any voluntary prepayment shall be applied pro rata to the Debt and the Mezzanine Debt until the Debt and the Mezzanine Debt are paid in full; provided, however, that upon the occurrence and during the continuance of an Event of Default, Lender shall apply any voluntary prepayment first, to payment of the Debt, in any order, priority and proportions as Lender shall elect from time to time, until the Debt is paid in full, and shall then disburse any remainder to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (ii) any balance to Borrowersintentionally omitted;
(b) all Net Proceeds not required to be made available for Restoration shall be applied first to the Debt, in any order, priority and proportions as Lender shall elect from time to time, until the Debt is paid in full, and then, as a distribution permitted under applicable law, (i) disbursed to Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (ii) the balance disbursed to BorrowersBorrower;
(c) any Reserve Funds or other cash collateral held by or on behalf of Lender, whether in the Cash Management Account, as Reserve Funds or otherwise, including any Net Proceeds then being held by Lender, shall, upon the occurrence and during the continuance of an Event of Default, be applied by Lender as follows or may continue to be held by Lender as additional collateral for the Loan, all in Lender’s discretion: first, to the Debt, in any order, priority and proportions as Lender shall elect from time to time, until the Debt is paid in full full, and then, as a distribution permitted under applicable law, (i) disbursed to Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (ii) the balance disbursed to BorrowersBorrower; and
(d) all Rents and/or Vacant Space Rent received by Lender upon the occurrence and during the continuance of an Event of Default pursuant to Section 3.1 of the Assignment of Leases shall be applied by Lender as follows or may continue to be held by Lender as additional collateral for the Loan, all in Lender’s discretion: first, (i) to the expenses of managing and securing the PropertiesProperty, as contemplated by clause (a) of Section 3.1 of such Assignment of Leases, and/or (ii) to the Debt, in any order, priority and proportions as Lender shall elect in its discretion from time to time, until the Debt is paid in full, and then (A) disbursed to Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (B) the balance disbursed to Borrowers.)
Appears in 1 contract
Application of Payments of Principal. Notwithstanding anything to the contrary contained in this Agreement, the following principal payments or prepayments shall be allocated between the Loan and the Mezzanine Loan as follows:
(a) so long as no Event of Default shall have occurred and be continuing, any voluntary prepayment shall be applied pro rata to the Debt and the Mezzanine Debt until the Debt and the Mezzanine Debt are paid in full; provided, however, that upon the occurrence and during the continuance of an Event of Default, Lender shall apply any voluntary prepayment first, to payment of the Debt, in any order, priority and proportions as Lender shall elect from time to time, until the Debt is paid in full, and shall then disburse any remainder to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (ii) any balance to Borrowers;
(b) all Net Proceeds not required to be made available for Restoration shall be applied first to the Debt, in any order, priority and proportions as Lender shall elect from time to time, until the Debt is paid in full, and then, as a distribution permitted under applicable law, (i) disbursed to Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (ii) the balance disbursed to Borrowers;
(c) any Reserve Funds or other cash collateral held by or on behalf of Lender, whether in the Cash Management Account, as Reserve Funds Account or otherwise, including including, without limitation, any Net Proceeds then being held by Lender, shall, upon the occurrence and during the continuance of an Event of Default, be applied in one of the following ways, as applicable, as determined by Lender as follows or in its sole discretion: (i) in the case of Reserve Funds, such sums may continue to be held by Lender as additional for application to the purpose for which such Reserve Funds were reserved in Article 7 hereof, (ii) in the case of other cash collateral for held by or on behalf of Lender, whether in the LoanCash Management Account or otherwise, all including, without limitation, any Net Proceeds then being held by Lender, such sums may either be applied, in Lender’s discretion: sole discretion to (A) pay expenses related to the Property, or be deposited by Lender into any of the accounts for Reserve Funds set forth in Article 7 hereof, or (iii) in the case of Reserve Funds or other cash collateral held by or on behalf of Lender, whether in the Cash Management Account or otherwise, including, without limitation, any Net Proceeds, such sums may be applied by Lender to the following (in the following order): first, to the DebtDebt or Other Obligations of a monetary nature, in any order, priority and proportions as Lender shall elect in its sole discretion from time to time, until the Debt is paid in full and then, as all Obligations of a distribution permitted under applicable law, (i) disbursed monetary nature owed to Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is are paid in full, and then (ii) the balance disbursed to BorrowersBorrower within five (5) Business Days; and
(db) all Rents and/or Vacant Space Rent received by Lender upon the occurrence and during the continuance of an Event of Default pursuant to Section 3.1 of the Assignment of Leases shall be applied by Lender to any of the following, as follows or may continue to be held determined by Lender as additional collateral for the Loan, all in Lender’s its sole discretion: first, (i) to pay expenses related to the expenses of managing and securing the PropertiesProperty, as contemplated by clause (a) of Section 3.1 of such Assignment of Leases, and/or (ii) to be deposited by Lender into any of the Debtaccounts for Reserve Funds set forth in Article 7 hereof, and/or (iii) to the application of the following (in the following order): first to the Debt and Other Obligations of a monetary nature, in any order, priority and proportions as Lender shall elect in its sole discretion from time to time, until the Debt is all Obligations of a monetary nature owed to Lender are paid in full, and then (A) the balance to be disbursed to Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt Borrower within five (or any portion thereof5) is then outstanding, until the Mezzanine Debt is paid in full, and then (B) the balance disbursed to BorrowersBusiness Days.
Appears in 1 contract
Samples: Loan Agreement (Cole Office & Industrial REIT (CCIT II), Inc.)
Application of Payments of Principal. Notwithstanding anything to the contrary contained in this Agreement, the following principal payments or prepayments shall be allocated between among the Loan and the Mezzanine Mortgage Loan as follows:
(a) so long as no Event of Default shall have occurred and be continuing, any voluntary prepayment by Borrower or Mortgage Borrowers shall be allocated by Lender or Mortgage Lender, as the case may be, so that (x) a portion of any such prepayment shall be paid to, and applied pro rata by, Mortgage Lender to the Mortgage Debt and as a prepayment thereof (subject to the Mezzanine Debt until the Debt and the Mezzanine Debt are paid provisions set forth in full; provided, however, that upon the occurrence and during the continuance of an Event of Default, Lender shall apply any voluntary prepayment first, to payment Section 2.4.1 of the DebtMortgage Loan Agreement) and (y) the remaining portion of such prepayment, in any order, priority and proportions as whether paid to Lender shall elect from time to time, until the Debt is paid in full, and shall then disburse any remainder to (i) Mezzanine by Mortgage Lender for application in accordance with the terms requirements of Section 2.6.4 of the Mezzanine Mortgage Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstandingwhich, until the Mezzanine Debt is when such monies are paid in fullby Mortgage Lender, and then (ii) any balance to Borrowers;
(b) all Net Proceeds not required shall be deemed to be made available for Restoration shall be applied first to the Debt, in any order, priority and proportions as Lender shall elect from time to time, until the Debt is paid in full, and then, as a distribution permitted under applicable law, (i) disbursed to Mezzanine Lender for application or by Borrower in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (ii) the balance disbursed Section 2.4.1 hereof to Borrowers;
(c) any Reserve Funds or other cash collateral held by or on behalf of Lender, whether in the Cash Management Account, as Reserve Funds or otherwise, including any Net Proceeds then being held by Lender, shall, upon the occurrence and during the continuance of an Event of Default, be applied by Lender as follows or may continue to be held by Lender as additional collateral for the Loan, all in Lender’s discretion: first, to the Debt, in any order, priority and proportions as Lender shall elect from time to time, until the Debt is paid in full and then, as a distribution permitted under applicable law, (i) disbursed to Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (ii) the balance disbursed to Borrowers; and
(d) all Rents and/or Vacant Space Rent received by Lender upon the occurrence and during the continuance of an Event of Default pursuant to Section 3.1 of the Assignment of Leases shall be applied by Lender to the Debt as follows or may continue to be held by Lender as additional collateral for the Loanprepayment thereof in accordance with Section 2.4.1 hereof, all in Lender’s discretion: first, provided that (i) to the expenses such allocation of managing and securing the Propertiesany such voluntary payments, as contemplated by clause between Lender and Mortgage Lender, shall be made pro rata in accordance with the respective Financing Percentages (aas were in effect immediately prior to such prepayment or payment of the Release Price, as the case may be) of Section 3.1 of such Assignment of Leases, and/or (ii) to the Debt, in any order, priority and proportions as Lender shall elect in its discretion from time to time, until the Mortgage Debt is and the Debt are paid in full, and then (A) disbursed to Mezzanine which Financing Percentages shall be calculated by Mortgage Lender for application in accordance with the terms as of the Mezzanine Loan Agreement if time immediately prior to such prepayment; and (ii) in respect of the Mezzanine Debt (or portion of any portion thereof) such prepayment which is then outstandingto be paid to Mortgage Lender, until Mortgage Borrowers shall be obligated to pay the Mezzanine Debt is paid in full, and then (B) the balance disbursed to Borrowers.yield maintenance premium contemplated in
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Cole Credit Property Trust III, Inc.)
Application of Payments of Principal. Notwithstanding anything to the contrary contained in this Agreement, the following principal payments or prepayments shall be allocated between among the Loan and the Mezzanine Mortgage Loan as follows:
(a) so long as no Event of Default shall have occurred and be continuing, any voluntary prepayment by Borrower or Mortgage Borrowers shall be allocated by Lender or Mortgage Lender, as the case may be, so that (x) a portion of any such prepayment shall be paid to, and applied by, Mortgage Lender to the Mortgage Debt as a prepayment thereof (subject to the provisions set forth in Section 2.4.1 of the Mortgage Loan Agreement) and (y) the remaining portion of such prepayment, whether paid to Lender by Mortgage Lender in accordance with the requirements of Section 2.6.4 of the Mortgage Loan Agreement (which, when such monies are paid by Mortgage Lender, shall be deemed to be a distribution permitted under applicable law) or by Borrower in accordance with Section 2.4.1 hereof to Lender, shall be applied pro rata by Lender to the Debt as prepayment thereof in accordance with Section 2.4.1 hereof, provided that (i) such allocation of any such voluntary payments, as between Lender and Mortgage Lender, shall be made pro rata in accordance with the Mezzanine Debt respective Financing Percentages (as were in effect immediately prior to such prepayment or payment of the Release Price, as the case may be) until the Mortgage Debt and the Mezzanine Debt are paid in full, which Financing Percentages shall be calculated by Mortgage Lender as of the time immediately prior to such prepayment; providedand (ii) in respect of the portion of any such prepayment which is to be paid to Mortgage Lender, howeverMortgage Borrowers shall be obligated to pay the yield maintenance premium contemplated in Section 2.4.1 of the Mortgage Loan Agreement. Notwithstanding the forgoing provisions of this clause (a) to the contrary, that upon the occurrence and during the continuance of an a Mortgage Loan Event of Default, Mortgage Lender shall is required to apply its share of any voluntary prepayment firstmade by Borrower or Mortgage Borrowers, in its election, to the payment of the Debtobligations of a monetary nature owed to Mortgage Lender under the Mortgage Loan Documents, or to the Obligations of a monetary nature owed to Lender under the Loan Documents in any order, priority and proportions as Mortgage Lender shall elect in its sole discretion from time to time, until provided that at such time as all Mortgage Debt and other obligations of a monetary nature owed to Mortgage Lender under the Debt is Mortgage Loan Documents are paid in full, and shall then disburse any remainder of such voluntary prepayment shall be paid to Lender, as a distribution permitted by applicable law, within two (i2) Mezzanine Lender Business Days thereafter for application in accordance with the terms of the Mezzanine Loan Agreement Documents if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is and Other Obligations are paid in full. Within two (2) Business Days after the Debt and Other Obligations are paid in full, any remaining balance of such voluntary prepayment shall be disbursed to Borrower. Any prepayments paid to Lender following the application thereof by Mortgage Lender upon the occurrence of and then (ii) any balance to Borrowers;
(b) all Net Proceeds not required to be made available for Restoration during the continuance of a Mortgage Loan Event of Default in accordance with the immediately preceding sentence or Section 2.6.4 of the Mortgage Loan Agreement shall be applied first by Lender to the Debt, prepayment of the Debt (subject to the applicable provisions of Section 2.4 hereof) or to any other Obligations of a monetary nature owed to Lender in respect of the Loan in any order, priority and proportions as Lender shall elect in its sole discretion from time to time, until ;
(b) to the Debt is extent any portion of Net Proceeds shall be paid in full, and then, as a distribution permitted under applicable law, (i) disbursed to Mezzanine Lender for application in accordance with the terms requirements of Section 2.6.4(b) of the Mezzanine Mortgage Loan Agreement if Agreement, any such sums shall be applied by Lender to the Mezzanine prepayment of the Debt (subject to the applicable provisions of Section 2.4 hereof) or to any portion thereof) is then outstandingOther Obligations of a monetary nature owed to Lender in respect of the Loan in any order, priority and proportions as Lender shall elect in its sole discretion from time to time until all of the Mezzanine Debt is and Other Obligations of a monetary nature owed to Lender are paid in full, and then (ii) the balance disbursed to BorrowersBorrower within two (2) Business Days after the Debt and Other Obligations are paid in full;
(c) to the extent any Reserve Funds or other cash collateral held by or on behalf of Mortgage Lender, whether in the Cash Management Account, as Reserve Funds Account or otherwise, including including, without limitation, any Net Proceeds then being held by Lender, shall, upon the occurrence and during the continuance of an Event of Default, be applied by Mortgage Lender as follows or may continue are paid to be held by Lender as additional collateral for the Loan, all in Lender’s discretion: first, to the Debt, in any order, priority and proportions as Lender shall elect from time to time, until the Debt is paid in full and then, as a distribution permitted under applicable law, (i) disbursed to Mezzanine Lender for application in accordance with the terms requirements of Section 2.6.4(c) of the Mezzanine Mortgage Loan Agreement if the Mezzanine Debt (or Agreement, any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (ii) the balance disbursed to Borrowers; and
(d) all Rents and/or Vacant Space Rent received by Lender upon the occurrence and during the continuance of an Event of Default pursuant to Section 3.1 of the Assignment of Leases such sums shall be applied by Lender as follows or may continue to be held by Lender as additional collateral for the Loan, all in Lender’s discretion: first, (i) to the expenses prepayment of managing and securing the Properties, as contemplated by clause Debt (a) subject to the applicable provisions of Section 3.1 2.4 hereof) or Other Obligations of such Assignment of Leases, and/or (ii) to the Debta monetary nature, in any order, priority and proportions as Lender shall elect in its sole discretion from time to time, until the all Debt is and Other Obligations of a monetary nature owed to Lender are paid in full, and then (A) the balance disbursed to Mezzanine Borrower within two (2) Business Days after the Debt and Other Obligations are paid in full; and
(d) to extent any Rents received by Mortgage Lender for application are paid to Lender in accordance with the terms requirements of Section 2.6.4(d) of the Mezzanine Mortgage Loan Agreement if Agreement, any such sums shall be applied by Lender to the Mezzanine prepayment of the Debt (subject to the applicable provisions of Section 2.4 hereof) or Other Obligations of a monetary nature in any portion thereof) is then outstandingorder, priority and proportions as Lender shall elect in its sole discretion from time to time, until the Mezzanine all Debt is and Other Obligations of a monetary nature owed to Lender are paid in full, and then (B) the balance disbursed to BorrowersBorrower within two (2) Business Days after the Debt and Other Obligations are paid in full.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Cole Credit Property Trust Inc)
Application of Payments of Principal. Notwithstanding anything to the contrary contained in this Agreement, the following principal payments or prepayments shall be allocated between among the Loan (without limiting any other provisions set forth herein, Borrowers hereby acknowledge and agree that an Exit Fee shall be payable in connection with any principal prepayment of all or any portion of the Loan), the Mortgage Loan and the Mezzanine Loan Loans as follows:
(a) so long as no Mortgage Event of Default shall have occurred and be continuing, any voluntary prepayment, including, without limitation, any prepayment pursuant to Section 2.7.3 or Section 3.3(d) of the Mortgage Loan Agreement, shall be applied pro rata in the following order (i) first, to the Reduced Acquisition Loan Debt, until such Reduced Acquisition Loan Debt and is paid in full, (ii) then, to the Mezzanine Construction Loan Debt, until such Construction Loan Debt is paid in full, (iii) then, any remaining amounts shall be disbursed by Mortgage Lender to Lender to be applied to the Debt, until the Debt and is paid in full, (iv) then, any remaining amounts shall be disbursed by Lender to Second Mezzanine Lender to be applied to the Second Mezzanine Debt, until the Second Mezzanine Debt are is paid in full, (v) then, any remaining amounts shall be disbursed by Second Mezzanine Lender to Third Mezzanine Lender to be applied to the Third Mezzanine Debt, until the Third Mezzanine Debt is paid in full; provided, however, that upon the occurrence and during the continuance of an a Mortgage Event of Default, Lender shall apply any voluntary prepayment shall be applied (i) first, by Mortgage Lender, to payment of the DebtMortgage Debt (including, without limitation, the Exit Fee payable pursuant to the Mortgage Loan Agreement), in any order, priority and proportions proportion as Mortgage Lender shall elect in its sole discretion from time to time, until the Mortgage Debt (including, without limitation, the Exit Fee payable pursuant to the Mortgage Loan Agreement) is paid in full, and (ii) then, Mortgage Lender shall disburse any remainder to Lender for application in accordance with the terms of the Loan Documents if the Debt (or any portion thereof) is then outstanding, until the Debt is paid in full, and (iii) then, Lender shall then disburse any remainder to (i) Second Mezzanine Lender for application in accordance with the terms of the Second Mezzanine Loan Agreement Documents if the Second Mezzanine Debt (or any portion thereof) is then outstanding, until the Second Mezzanine Debt is paid in full, and then (iiiv) any balance to Borrowers;
(b) all Net Proceeds not required to be made available for Restoration shall be applied first to the Debtthen, in any order, priority and proportions as Second Mezzanine Lender shall elect from time disburse to time, until the Debt is paid in full, and then, as a distribution permitted under applicable law, (i) disbursed to Third Mezzanine Lender for application in accordance with the terms of the Third Mezzanine Loan Agreement Documents if the Third Mezzanine Debt (or any portion thereof) is then outstanding, until the Third Mezzanine Debt is paid in full, and then (iiv) then, Third Mezzanine Lender shall disburse the balance disbursed balance, if any, to Mortgage Borrowers;
(b) Intentionally Deleted;
(c) all Net Proceeds not required to be made available for Restoration, and as to which Mortgage Lender has not otherwise elected in its sole discretion to make available for Restoration, shall be applied (i) first, to the Mortgage Debt (including, without limitation, the Exit Fee and any related Breakage Costs payable pursuant to the Mortgage Loan Agreement), in any order, priority and proportion as Mortgage Lender shall elect in its sole discretion from time to time, until the Mortgage Debt (including, without limitation, the Exit Fee payable pursuant to the Mortgage Loan Agreement) is paid in full, (ii) then, Mortgage Lender shall disburse any remaining amounts to Lender to be applied to the Debt, until the Debt is paid in full, (iii) then, Lender shall disburse any remaining amounts to Second Mezzanine Lender to be applied to the Second Mezzanine Debt, until the Second Mezzanine Debt is paid in full, (iv) then, Second Mezzanine Lender shall disburse any remaining amounts to Third Mezzanine Lender to be applied to the Third Mezzanine Debt, until the Third Mezzanine Debt is paid in full, and (v) then, Third Mezzanine Lender shall disburse any remaining amounts to Mortgage Borrowers;
(d) any Mortgage Reserve Funds or other cash collateral held by or on behalf of Mortgage Lender, whether in the Mortgage Cash Management AccountAccount or any of the Mortgage Reserve Funds, as Reserve Funds or otherwise, including including, without limitation, any Net Proceeds and/or any Excess Cash Flow then being held by Mortgage Lender, shall, upon the occurrence and during the continuance of an a Mortgage Event of Default, be applied by Mortgage Lender as follows or may continue to be held by Mortgage Lender as additional collateral for the Mortgage Loan, all in Mortgage Lender’s sole discretion: (i) first, to the DebtMortgage Debt (including, without limitation, the Exit Fee payable pursuant to the Mortgage Loan Agreement), in any order, priority and proportions as Mortgage Lender shall elect in its sole discretion from time to time, until the Mortgage Debt (including, without limitation, the Exit Fee payable pursuant to the Mortgage Loan Agreement) is paid in full, (ii) then, disbursed by Mortgage Lender to Lender for application in accordance with the terms of the Loan Documents if the Debt (or any portion thereof) is then outstanding, until the Debt is paid in full and full, (iii) then, as a distribution permitted under applicable law, (i) disbursed by Lender to Second Mezzanine Lender for application in accordance with the terms of the Second Mezzanine Loan Agreement Documents if the Second Mezzanine Debt (or any portion thereof) is then outstanding, until the Second Mezzanine Debt is paid in full, (iv) then, disbursed by Second Mezzanine Lender to Third Mezzanine Lender for application in accordance with the terms of the Third Mezzanine Loan Documents if the Third Mezzanine Debt (or any portion thereof) is then outstanding, until the Third Mezzanine Debt is paid in full, (v) then, the balance, if any, disbursed by Third Mezzanine Lender to Mortgage Borrowers;
(e) the proceeds of any Release Parcel Release Price shall be applied in the following order (i) first, to the Reduced Acquisition Loan Debt, until such Reduced Acquisition Loan Debt is paid in full, (ii) then, to the Construction Loan Debt, until such Construction Loan Debt is paid in full, (iii) then, any remaining amounts shall be disbursed by Mortgage Lender to Lender to be applied to the Debt, until the Debt is paid in full, (iv) then, any remaining amounts shall be disbursed by Lender to Second Mezzanine Lender to be applied to the Second Mezzanine Debt, until the Second Mezzanine Debt is paid in full, (v) then, any remaining amounts shall be disbursed by Second Mezzanine Lender to Third Mezzanine Lender to be applied to the Third Mezzanine Debt, until the Third Mezzanine Debt is paid in full, and (vi) then any remaining amounts shall be disbursed by Third Mezzanine Lender to Mortgage Borrowers;
(f) Intentionally Deleted;
(g) the proceeds of any IP Release Price shall be allocated as follows: (A) the first $60,000,000 of any such IP Release Price payable in connection with such IP Sale shall be applied in the following order (i) first, to the Reduced Acquisition Loan Debt, until such Reduced Acquisition Loan Debt is paid in full, (ii) then, to the balance Construction Loan Debt, until such Construction Loan Debt is paid in full, (iii) then, any remaining amounts shall be disbursed to BorrowersLender to be applied to the Debt, until the Debt is paid in full, (iv) then, any remaining amounts shall be disbursed to Second Mezzanine Lender to be applied to the Second Mezzanine Debt, until the Second Mezzanine Debt is paid in full, and (v) then, any remaining amounts shall be disbursed to Third Mezzanine Lender to be applied to the Third Mezzanine Debt, until the Third Mezzanine Debt is paid in full; andand (B) in the event the proceeds of any IP Release Price payable in connection with any IP Sale exceed $60,000,000 (the “Excess IP Release Price Proceeds”), such Excess IP Release Price Proceeds shall be applied in accordance with Section 2.4.3(g) of the Mortgage Loan Agreement;
(dh) all Rents and/or Vacant Space Rent received by Mortgage Lender upon the occurrence and during the continuance of an a Mortgage Event of Default pursuant to Section 3.1 of the Assignment of Leases shall be applied by Mortgage Lender as follows or may continue to be held by Mortgage Lender as additional collateral for the Mortgage Loan, all in Mortgage Lender’s sole discretion: first, (i) to the expenses of managing and securing any of the Properties, as contemplated by clause (a) of said Section 3.1 of such the Assignment of Leases, and/or (ii) to the Reduced Acquisition Loan Debt, until the Reduced Acquisition Loan Debt is paid in full, then to the Construction Loan Debt, until the Construction Loan Debt is paid in full, and then (A) disbursed by Mortgage Lender to Lender for application in accordance with the terms of the Loan Documents if the Debt (or any order, priority and proportions as Lender shall elect in its discretion from time to timeportion thereof) is then outstanding, until the Debt is paid in full, and then (AB) disbursed to Second Mezzanine Lender for application in accordance with the terms of the Second Mezzanine Loan Agreement Documents if the Second Mezzanine Debt (or any portion thereof) is then outstanding, until the Second Mezzanine Debt is paid in full, and then (BC) disbursed to Third Mezzanine Lender for application in accordance with the terms of the Third Mezzanine Loan Documents if the Third Mezzanine Debt (or any portion thereof) is then outstanding, until the Third Mezzanine Debt is paid in full and then (D) the balance disbursed by Third Mezzanine Lender to Mortgage Borrowers.;
(i) Intentionally Deleted; and
Appears in 1 contract
Samples: First Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC)
Application of Payments of Principal. (a) Notwithstanding anything to the contrary contained in this Agreement, all prepayments of the Loan, whether a voluntary prepayment, a prepayment from Net Proceeds, a prepayment from the application of Reserve Funds, a prepayment from the proceeds of the Five Acre Release Price, a prepayment from Rents received by Lender following principal payments or prepayments shall be allocated between the Loan and the Mezzanine Loan as follows:
(a) so long as no Event of Default shall have occurred and be continuing, any voluntary prepayment shall be applied pro rata to the Debt and the Mezzanine Debt until the Debt and the Mezzanine Debt are paid in full; provided, however, that upon the occurrence and during the continuance of an Event of Default, Lender or otherwise, shall apply any voluntary prepayment be applied first, to payment of the Debt, in any order, priority and proportions as Lender shall elect in its sole discretion from time to time, until the Debt is paid in full, and any remainder shall then disburse any remainder be disbursed to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (ii) any balance to Borrowers;Borrower.
(b) all Net Proceeds not required to be made available for Restoration shall be applied first to the Debt, in any order, priority It is expressly agreed by Lender and proportions as Lender shall elect from time to time, until the Debt is paid in full, and then, as a distribution permitted under applicable law, (i) disbursed to Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (ii) the balance disbursed to Borrowers;
(c) Borrower that any Reserve Funds or other cash collateral held by or on behalf of Lender, whether in the Cash Management Account, as the Tax and Insurance Escrow Account, the Interest Reserve Funds Account or otherwise, including including, without limitation, any Net Proceeds and/or any Excess Cash Flow then being held by Lender, shall, upon the occurrence and during the continuance of an Event of Default, be applied by Lender as follows in accordance with the foregoing clause (a) or may continue to be held by Lender as additional collateral for the Loan, all in Lender’s sole discretion: first, to the Debt.
(c) It is expressly agreed by Lender and Borrower that, in Lender’s sole discretion, any order, priority and proportions as Lender shall elect from time to time, until the Debt is paid in full and then, as a distribution permitted under applicable law, (i) disbursed to Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (ii) the balance disbursed to Borrowers; and
(d) all Rents and/or Vacant Space Rent received by Lender upon the occurrence and during the continuance of an Event of Default pursuant to Section 3.1 of the Assignment of Leases shall may, prior to the application in accordance with the foregoing clause (a), be applied by Lender as follows or may continue to be held by Lender as additional collateral for the Loan, all in Lender’s discretion: first, (i) to the expenses of managing and securing the PropertiesProperty, as contemplated by clause (a) of said Section 3.1 of such the Assignment of Leases, and/or (ii) to the Debt, in any order, priority and proportions as Lender shall elect in its discretion from time to time, until the Debt is paid in full, and then (A) disbursed to Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (B) the balance disbursed to Borrowers.
Appears in 1 contract
Application of Payments of Principal. Notwithstanding anything to the contrary contained in this Agreement, the following principal payments or prepayments shall be allocated between the Loan and the Mezzanine Loan applied as follows:
(a) so long as no Event of Default shall have occurred and be continuingany voluntary prepayment, including, without limitation, any voluntary prepayment pursuant to Section 2.7.3(a), 2.7.3(b)(i), 3.2(h), 3.2(h)(A), 3.3(d) or 3.17.2(a) hereof, shall be applied pro rata to the Debt and the Mezzanine Debt until the Debt and the Mezzanine Debt are paid in full; provided, however, that upon the occurrence and during the continuance of an Event of Default, Lender shall apply any voluntary prepayment first, to payment of the Debt, in any order, priority and proportions as Lender shall elect from time to time, until the Debt is paid in full, and shall then disburse any remainder to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (ii) any balance to Borrowers;
(b) all Net Proceeds not required to be made available for Restoration shall be applied first to the Debt, in any order, priority and proportions as Lender shall elect in its sole discretion from time to time, until the Debt is paid in full, and then, as a distribution permitted under applicable law, (i) then any balance shall be disbursed to Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt Borrowers;
(b) any Minimum Mandatory Prepayment (or any portion partial payment on account thereof) is then outstanding), Non-Qualified Mandatory Prepayment and/or Additional Non-Qualified Mandatory Prepayment shall be applied first, to the Debt, in any order, priority and proportions as Lender shall elect in its sole discretion from time to time, until the Mezzanine Debt is paid in full, and then (ii) the any balance shall be disbursed to Borrowers;
(c) all Net Proceeds not required to be made available for Restoration, and as to which Lender has not otherwise elected in its sole discretion to make available for Restoration, shall be applied first, to the Debt, in any order, priority and proportions as Lender shall elect in its sole discretion from time to time, until the Debt is paid in full, and then any balance shall be disbursed to Borrowers;
(d) any Reserve Funds or other cash collateral held by or on behalf of Lender, whether in the Cash Management Account, as the Tax and Insurance Escrow Account, the Replacement Reserve Funds Account, the Required Repair Account, the Initial Renovation Reserve Account, the Interest Reserve Account, the General Reserve Account, the Construction Loan Reserve Account, the Shortfall Account or otherwise, including including, without limitation, any Net Proceeds and/or any Excess Cash Flow then being held by Lender, shall, upon the occurrence and during the continuance of an Event of Default, be applied by Lender as follows or may continue to be held by Lender as additional collateral for the Loan, all in Lender’s sole discretion: first, to the Debt, in any order, priority and proportions as Lender shall elect in its sole discretion from time to time, until the Debt is paid in full full, and then, as a distribution permitted under applicable lawany balance shall be disbursed to Borrowers;
(e) subject to Section 2.5.4 hereof, the proceeds of any Release Parcel Release Price shall be applied to the Loan;
(f) subject to Section 2.5.4 hereof, the proceeds of any Adjacent Parcel Release Price shall be applied to the Loan;
(g) subject to Section 2.5.4 hereof, (i) the proceeds of any IP Release Price which is less than or equal to $80,000,000 and arises from an IP Sale (a “Non-Fully Prepaid IP Sale”) occurring at any time when Borrowers have not paid in full the Minimum Mandatory Prepayment, the Non-Qualified Mandatory Prepayment and the Additional Non-Qualified Mandatory Prepayment, shall be applied to the Loan; (ii) the proceeds of any IP Release Price which is less than or equal to $60,000,000 and arises from an IP Sale (a “Fully Prepaid IP Sale”) occurring at any time after Borrowers have paid in full the Minimum Mandatory Prepayment, the Non-Qualified Mandatory Prepayment and the Additional Non-Qualified Mandatory Prepayment, shall be applied to the Loan; and (iii) the proceeds of any IP Release Price in excess of $80,000,000 which arise from a Non-Fully Prepaid IP Sale (the “Excess Non-Fully Funded IP Release Proceeds”) or the proceeds of any IP Release Price in excess of $60,000,000 which arise from a Fully Prepaid IP Sale (“Excess Fully Funded IP Release Proceeds”; and whichever of the Excess Fully Funded IP Release Proceeds or the Excess Non-Fully Funded IP Release Proceeds is applicable, the “Excess IP Release Price Proceeds”), shall, at Borrowers’ option, either (A) be deposited in the General Reserve Account and thereafter constitute a part of the General Reserve Fund for all purposes under the Loan Agreement, to be held and disbursed by Lender as set forth in Section 7.6 hereof, or (B) applied as follows, in such amounts as Borrowers shall elect: (1) up to Mezzanine Lender for fifty percent (50%) of such Excess IP Release Price Proceeds shall be applied to satisfy any Required Equity Amount or Subsequent Required Equity Amount then due and payable and/or to pay any Unused Advance Fee, Exit Fee and/or Administrative Agent Fee then due and payable, and/or (2) the balance of such Excess IP Release Price Proceeds after application in accordance with the terms foregoing clause (1), but in no event less than fifty percent (50%) thereof, to repayment of the Mezzanine Loan Agreement if (any repayment of the Mezzanine Debt (or any portion thereofLoan pursuant to this Section 2.4.3(g)(iii)(B)(2) is then outstanding, until paid out of Excess Non-Fully Funded IP Release Proceeds being referred to as the Mezzanine Debt is paid in full, and then (ii) the balance disbursed to Borrowers“Optional IP Release Payment”); and
(dh) all Rents and/or Vacant Space Rent received by Lender upon the occurrence and during the continuance of an Event of Default pursuant to Section 3.1 of the Assignment of Leases shall be applied by Lender as follows or may continue to be held by Lender as additional collateral for the Loan, all in Lender’s sole discretion: first, (i) to the expenses of managing and securing any of the Properties, as contemplated by clause (a) of said Section 3.1 of such the Assignment of Leases, and/or (ii) to the Debt, in any order, priority and proportions as Lender shall elect in its sole discretion from time to time, until the Debt is paid in full, and then (A) disbursed to Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Agreement if the Mezzanine Debt (or any portion thereof) is then outstanding, until the Mezzanine Debt is paid in full, and then (B) the balance disbursed to Borrowers.
Appears in 1 contract
Application of Payments of Principal. Notwithstanding anything to the contrary contained in this Agreement, the following principal payments or prepayments shall be allocated between among the Loan (without limiting any other provisions set forth herein, Borrowers hereby acknowledge and agree that an Exit Fee shall be payable in connection with any principal prepayment of all or any portion of the Loan), the Mortgage Loan and the Mezzanine Loan Loans as follows:
(a) so long as no Mortgage Event of Default shall have occurred and be continuing, any voluntary prepayment, including, without limitation, any prepayment pursuant to Section 2.7.3 or Section 3.3(d) of the Mortgage Loan Agreement, shall be applied pro rata in the following order (i) first, to the Reduced Acquisition Loan Debt, until such Reduced Acquisition Loan Debt and is paid in full, (ii) then, to the Construction Loan Debt, until such Construction Loan Debt is paid in full, (iii) then, any remaining amounts shall be disbursed by Mortgage Lender to First Mezzanine Lender to be applied to the First Mezzanine Debt, until the First Mezzanine Debt is paid in full, (iv) then, any remaining amounts shall be disbursed by First Mezzanine Lender to Lender to be applied to the Debt, until the Debt and is paid in full, (v) then, any remaining amounts shall be disbursed by Lender to Third Mezzanine Lender to be applied to the Third Mezzanine Debt, until the Third Mezzanine Debt are is paid in full; provided, however, that upon the occurrence and during the continuance of an a Mortgage Event of Default, Lender shall apply any voluntary prepayment shall be applied (i) first, by Mortgage Lender, to payment of the DebtMortgage Debt (including, without limitation, the Exit Fee payable pursuant to the Mortgage Loan Agreement), in any order, priority and proportions proportion as Mortgage Lender shall elect in its sole discretion from time to time, until the Mortgage Debt (including, without limitation, the Exit Fee payable pursuant to the Mortgage Loan Agreement) is paid in full, and (ii) then, Mortgage Lender shall then disburse any remainder to (i) First Mezzanine Lender for application in accordance with the terms of the First Mezzanine Loan Agreement Documents if the First Mezzanine Debt (or any portion thereof) is then outstanding, until the First Mezzanine Debt is paid in full, and then (iiiii) any balance to Borrowers;
(b) all Net Proceeds not required to be made available for Restoration shall be applied first to the Debtthen, in any order, priority and proportions as First Mezzanine Lender shall elect from time disburse any remainder to timeLender for application in accordance with the terms of the Loan Documents if the Debt (or any portion thereof) is then outstanding, until the Debt is paid in full, and (iv) then, as a distribution permitted under applicable law, (i) disbursed Lender shall disburse to Third Mezzanine Lender for application in accordance with the terms of the Third Mezzanine Loan Agreement Documents if the Third Mezzanine Debt (or any portion thereof) is then outstanding, until the Third Mezzanine Debt is paid in full, and then (iiv) then, Third Mezzanine Lender shall disburse the balance disbursed balance, if any, to Mortgage Borrowers;
(b) Intentionally Deleted;
(c) all Net Proceeds not required to be made available for Restoration, and as to which Mortgage Lender has not otherwise elected in its sole discretion to make available for Restoration, shall be applied (i) first, to the Mortgage Debt (including, without limitation, the Exit Fee and any related Breakage Costs payable pursuant to the Mortgage Loan Agreement), in any order, priority and proportion as Mortgage Lender shall elect in its sole discretion from time to time, until the Mortgage Debt (including, without limitation, the Exit Fee payable pursuant to the Mortgage Loan Agreement) is paid in full, (ii) then, Mortgage Lender shall disburse any remaining amounts to First Mezzanine Lender to be applied to the First Mezzanine Debt, until the First Mezzanine Debt is paid in full, (iii) then, First Mezzanine Lender shall disburse any remaining amounts to Lender to be applied to the Debt, until the Debt is paid in full, (iv) then, Lender shall disburse any remaining amounts to Third Mezzanine Lender to be applied to the Third Mezzanine Debt, until the Third Mezzanine Debt is paid in full, and (v) then, Third Mezzanine Lender shall disburse any remaining amounts to Mortgage Borrowers;
(d) any Mortgage Reserve Funds or other cash collateral held by or on behalf of Mortgage Lender, whether in the Mortgage Cash Management AccountAccount or any of the Mortgage Reserve Funds, as Reserve Funds or otherwise, including including, without limitation, any Net Proceeds and/or any Excess Cash Flow then being held by Mortgage Lender, shall, upon the occurrence and during the continuance of an a Mortgage Event of Default, be applied by Mortgage Lender as follows or may continue to be held by Mortgage Lender as additional collateral for the Mortgage Loan, all in Mortgage Lender’s sole discretion: (i) first, to the DebtMortgage Debt (including, without limitation, the Exit Fee payable pursuant to the Mortgage Loan Agreement), in any order, priority and proportions as Mortgage Lender shall elect in its sole discretion from time to time, until the Mortgage Debt (including, without limitation, the Exit Fee payable pursuant to the Mortgage Loan Agreement) is paid in full and full, (ii) then, as a distribution permitted under applicable law, (i) disbursed by Mortgage Lender to First Mezzanine Lender for application in accordance with the terms of the First Mezzanine Loan Agreement Documents if the First Mezzanine Debt (or any portion thereof) is then outstanding, until the First Mezzanine Debt is paid in full, (iii) then, disbursed by First Mezzanine Lender to Lender for application in accordance with the terms of the Loan Documents if the Debt (or any portion thereof) is then outstanding, until the Debt is paid in full, (iv) then, disbursed by Lender to Third Mezzanine Lender for application in accordance with the terms of the Third Mezzanine Loan Documents if the Third Mezzanine Debt (or any portion thereof) is then outstanding, until the Third Mezzanine Debt is paid in full, (v) then, the balance, if any, disbursed by Third Mezzanine Lender to Mortgage Borrowers;
(e) the proceeds of any Release Parcel Release Price shall be applied in the following order (i) first, to the Reduced Acquisition Loan Debt, until such Reduced Acquisition Loan Debt is paid in full, (ii) then, to the Construction Loan Debt, until such Construction Loan Debt is paid in full, (iii) then, any remaining amounts shall be disbursed by Mortgage Lender to First Mezzanine Lender to be applied to the First Mezzanine Debt, until the First Mezzanine Debt is paid in full, (iv) then, any remaining amounts shall be disbursed by First Mezzanine Lender to Lender to be applied to the Debt, until the Debt is paid in full, (v) then, any remaining amounts shall be disbursed by Lender to Third Mezzanine Lender to be applied to the Third Mezzanine Debt, until the Third Mezzanine Debt is paid in full, and (vi) then any remaining amounts shall be disbursed by Third Mezzanine Lender to Mortgage Borrowers;
(f) Intentionally Deleted;
(g) the proceeds of any IP Release Price shall be allocated as follows: (A) the first $60,000,000 of any such IP Release Price payable in connection with such IP Sale shall be applied in the following order (i) first, to the Reduced Acquisition Loan Debt, until such Reduced Acquisition Loan Debt is paid in full, (ii) then, to the balance Construction Loan Debt, until such Construction Loan Debt is paid in full, (iii) then, any remaining amounts shall be disbursed to BorrowersFirst Mezzanine Lender to be applied to the First Mezzanine Debt, until the First Mezzanine Debt is paid in full, (iv) then, any remaining amounts shall be disbursed to Lender to be applied to the Debt, until the Debt is paid in full, and (v) then, any remaining amounts shall be disbursed to Third Mezzanine Lender to be applied to the Third Mezzanine Debt, until the Third Mezzanine Debt is paid in full; andand (B) in the event the proceeds of any IP Release Price payable in connection with any IP Sale exceed $60,000,000 (the “Excess IP Release Price Proceeds”), such Excess IP Release Price Proceeds shall be applied in accordance with Section 2.4.3(g) of the Mortgage Loan Agreement;
(dh) all Rents and/or Vacant Space Rent received by Mortgage Lender upon the occurrence and during the continuance of an a Mortgage Event of Default pursuant to Section 3.1 of the Assignment of Leases shall be applied by Mortgage Lender as follows or may continue to be held by Mortgage Lender as additional collateral for the Mortgage Loan, all in Mortgage Lender’s sole discretion: first, (i) to the expenses of managing and securing any of the Properties, as contemplated by clause (a) of said Section 3.1 of such the Assignment of Leases, and/or (ii) to the Reduced Acquisition Loan Debt, in any order, priority and proportions as Lender shall elect in its discretion from time to time, until the Reduced Acquisition Loan Debt is paid in full, then to the Construction Loan Debt, until the Construction Loan Debt is paid in full, and then (A) disbursed by Mortgage Lender to First Mezzanine Lender for application in accordance with the terms of the First Mezzanine Loan Agreement Documents if the First Mezzanine Debt (or any portion thereof) is then outstanding, until the First Mezzanine Debt is paid in full, and then (B) disbursed to Lender for application in accordance with the terms of the Loan Documents if the Debt (or any portion thereof) is then outstanding, until the Debt is paid in full, and then (C) disbursed to Third Mezzanine Lender for application in accordance with the terms of the Third Mezzanine Loan Documents if the Third Mezzanine Debt (or any portion thereof) is then outstanding, until the Third Mezzanine Debt is paid in full and then (D) the balance disbursed by Third Mezzanine Lender to Mortgage Borrowers.;
(i) Intentionally Deleted; and
Appears in 1 contract
Samples: Second Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC)
Application of Payments of Principal. Notwithstanding anything to the contrary contained in this Agreement, the following principal payments or prepayments shall be allocated between among the Loan (without limiting any other provisions set forth herein, Borrowers hereby acknowledge and agree that an Exit Fee shall be payable in connection with any principal prepayment of all or any portion of the Loan), the First Mezzanine Loan, the Second Mezzanine Loan and the Third Mezzanine Loan as follows:
(a) so long as no Event of Default shall have occurred and be continuing, any voluntary prepayment, including, without limitation, any prepayment pursuant to Section 2.7.3 or Section 3.3(d) hereof, shall be applied pro rata in the following order (i) first, to the Reduced Acquisition Loan Debt, until such Reduced Acquisition Loan Debt and is paid in full, (ii) then, to the Construction Loan Debt, until such Construction Loan Debt is paid in full, (iii) then, any remaining amounts shall be disbursed by Lender to First Mezzanine Lender to be applied to the First Mezzanine Debt, until the First Mezzanine Debt is paid in full, (iv) then, any remaining amounts shall be disbursed by First Mezzanine Lender to Second Mezzanine Lender to be applied to the Second Mezzanine Debt, until the Debt and the Second Mezzanine Debt are is paid in full, (v) then, any remaining amounts shall be disbursed by Second Mezzanine Lender to Third Mezzanine Lender to be applied to the Third Mezzanine Debt, until the Third Mezzanine Debt is paid in full; provided, however, that upon the occurrence and during the continuance of an Event of Default, Lender shall apply any voluntary prepayment first, to payment of the DebtDebt (including, without limitation, the Exit Fee), in any order, priority and proportions proportion as Lender shall elect in its sole discretion from time to time, until the Debt (including, without limitation, the Exit Fee) is paid in full, and (A) Lender shall then disburse any remainder to (i) First Mezzanine Lender for application in accordance with the terms of the First Mezzanine Loan Agreement Documents if the First Mezzanine Debt (or any portion thereof) is then outstanding, until the First Mezzanine Debt is paid in full, and then (iiB) any balance to Borrowers;
(b) all Net Proceeds not required to be made available for Restoration shall be applied first to the Debt, in any order, priority and proportions as First Mezzanine Lender shall elect from time then disburse any remainder to time, until the Debt is paid in full, and then, as a distribution permitted under applicable law, (i) disbursed to Second Mezzanine Lender for application in accordance with the terms of the Second Mezzanine Loan Agreement Documents if the Second Mezzanine Debt (or any portion thereof) is then outstanding, until the Second Mezzanine Debt is paid in full, and then (iiC) Second Mezzanine Lender shall then disburse any remainder to Third Mezzanine Lender for application in accordance with the balance disbursed terms of the Third Mezzanine Loan Documents if the Third Mezzanine Debt (or any portion thereof) is then outstanding, until the Third Mezzanine Debt is paid in full, and then (D) Third Mezzanine Lender shall then disburse the balance, if any, to Borrowers;
(b) Intentionally Deleted;
(c) all Net Proceeds not required to be made available for Restoration, and as to which Lender has not otherwise elected in its sole discretion to make available for Restoration, shall be applied first, to the Debt (including, without limitation, the Exit Fee and any related Breakage Costs), in such order, priority and proportion as Lender shall elect in its discretion from time to time, until the Debt (including, without limitation, the Exit Fee) is paid in full, and (i) then, Lender shall disburse any remaining amounts to First Mezzanine Lender to be applied to the First Mezzanine Debt, until the First Mezzanine Debt is paid in full, (ii) then, First Mezzanine Lender shall disburse any remaining amounts to Second Mezzanine Lender to be applied to the Second Mezzanine Debt, until the Second Mezzanine Debt is paid in full, (iii) then, Second Mezzanine Lender shall disburse any remaining amounts to Third Mezzanine Lender to be applied to the Third Mezzanine Debt, until the Third Mezzanine Debt is paid in full, and (vi) then, Third Mezzanine Lender shall disburse any remaining amounts to Borrowers;
(d) any Reserve Funds or other cash collateral held by or on behalf of Lender, whether in the Cash Management Account, as the Tax and Insurance Escrow Account, the Replacement Reserve Funds Account, the Working Capital Reserve Account, the Initial Renovation Reserve Account, the Interest Reserve Account, the General Reserve Account, the Construction Loan Reserve Account, the Shortfall Account or otherwise, including including, without limitation, any Net Proceeds and/or any Excess Cash Flow then being held by Lender, shall, upon the occurrence and during the continuance of an Event of Default, be applied by Lender as follows or may continue to be held by Lender as additional collateral for the Loan, all in Lender’s sole discretion: first, to the DebtDebt (including, without limitation, the Exit Fee), in any order, priority and proportions as Lender shall elect in its sole discretion from time to time, until the Debt (including, without limitation, the Exit Fee) is paid in full full, and then, as a distribution permitted under applicable law, then (i) disbursed by Lender to First Mezzanine Lender for application in accordance with the terms of the First Mezzanine Loan Agreement Documents if the First Mezzanine Debt (or any portion thereof) is then outstanding, until the First Mezzanine Debt is paid in full, and then (ii) disbursed by First Mezzanine Lender to Second Mezzanine Lender for application in accordance with the terms of the Second Mezzanine Loan Documents if the Second Mezzanine Debt (or any portion thereof) is then outstanding, until the Second Mezzanine Debt is paid in full, and then (iii) disbursed by Second Mezzanine Lender to Third Mezzanine Lender for application in accordance with the terms of the Third Mezzanine Loan Documents if the Third Mezzanine Debt (or any portion thereof) is then outstanding, until the Third Mezzanine Debt is paid in full, and then (iv) the balance, if any, disbursed by Third Mezzanine Lender to Borrowers;
(e) the proceeds of any Release Parcel Release Price shall be applied in the following order (i) first, to the Reduced Acquisition Loan Debt, until such Reduced Acquisition Loan Debt is paid in full, (ii) then, to the Construction Loan Debt, until such Construction Loan Debt is paid in full, (iii) then, any remaining amounts shall be disbursed by Lender to First Mezzanine Lender to be applied to the First Mezzanine Debt, until the First Mezzanine Debt is paid in full, (iv) then, any remaining amounts shall be disbursed by First Mezzanine Lender to Second Mezzanine Lender to be applied to the Second Mezzanine Debt, until the Second Mezzanine Debt is paid in full, (v) then, any remaining amounts shall be disbursed by Second Mezzanine Lender to Third Mezzanine Lender to be applied to the Third Mezzanine Debt, until the Third Mezzanine Debt is paid in full, and (vi) then any remaining amounts shall be disbursed by Third Mezzanine Lender to Borrowers;
(f) Intentionally Deleted;
(g) the proceeds of any IP Release Price shall be allocated as follows: (i) the first $60,000,000 of any such IP Release Price payable in connection with each IP Sale, shall be applied in the following order (A) first, to the Reduced Acquisition Loan Debt, until such Reduced Acquisition Loan Debt is paid in full, (B) then, to the Construction Loan Debt, until such Construction Loan Debt is paid in full, (C) then, any remaining amounts shall be disbursed to First Mezzanine Lender to be applied to the First Mezzanine Debt, until the First Mezzanine Debt is paid in full, (D) then, any remaining amounts shall be disbursed to Second Mezzanine Lender to be applied to the Second Mezzanine Debt, until the Second Mezzanine Debt is paid in full, and (E) then, any remaining amounts shall be disbursed to Third Mezzanine Lender to be applied to the Third Mezzanine Debt, until the Third Mezzanine Debt is paid in full; and (ii) in the event the proceeds of any IP Release Price payable in connection with any IP Sale exceed $60,000,000 (the “Excess IP Release Price Proceeds”), such Excess IP Release Price Proceeds shall be applied as follows: (A) seventy-five percent (75%) of such Excess IP Release Price Proceeds shall be applied to the payment of the Loan in the following order: (1) first, to the Reduced Acquisition Loan Debt, until such Reduced Acquisition Loan Debt is paid in full and (2) second, to the Construction Loan Debt, until such Construction Loan Debt is paid in full, and (B) the balance disbursed of such Excess IP Release Price Proceeds after application in accordance with the foregoing clause (1), shall be applied as follows: (1) first, an amount equal to Borrowers; andthe lesser of (I) twelve and one-half percent (12.5%) of the Excess IP Release Price Proceeds or (II) the amount which when added to the then current balance of the General Reserve Fund would cause the General Reserve Fund Cap to be met, shall be deposited in the General Reserve Fund to be held and applied in accordance with the terms hereof and (2) after deposit of the amounts described in clause (1) above, the balance of the Excess IP Release Price Proceeds (such amounts described in subclauses (1) and (2) of this Section 2.4.3(g), the “IP Subaccount Funds”) shall be deposited in the IP Subaccount to be held and applied in accordance with the terms of Section 7.6.4 hereof;
(dh) all Rents and/or Vacant Space Rent received by Lender upon the occurrence and during the continuance of an Event of Default pursuant to Section 3.1 of the Assignment of Leases shall be applied by Lender as follows or may continue to be held by Lender as additional collateral for the Loan, all in Lender’s sole discretion: first, (i) to the expenses of managing and securing any of the Properties, as contemplated by clause (a) of said Section 3.1 of such the Assignment of Leases, and/or (ii) to the Reduced Acquisition Loan Debt, in any order, priority and proportions as Lender shall elect in its discretion from time to time, until the Reduced Acquisition Loan Debt is paid in full, then to the Construction Loan Debt, until the Construction Loan Debt is paid in full, and then (A) disbursed to First Mezzanine Lender for application in accordance with the terms of the First Mezzanine Loan Agreement Documents if the First Mezzanine Debt (or any portion thereof) is then outstanding, until the First Mezzanine Debt is paid in full, and then (B) disbursed to Second Mezzanine Lender for application in accordance with the terms of the Second Mezzanine Loan Documents if the Second Mezzanine Debt (or any portion thereof) is then outstanding, until the Second Mezzanine Debt is paid in full, and then (C) disbursed to Third Mezzanine Lender for application in accordance with the terms of the Third Mezzanine Loan Documents if the Third Mezzanine Debt (or any portion thereof) is then outstanding, until the Third Mezzanine Debt is paid in full, and then (D) the balance disbursed by Third Mezzanine Lender to Borrowers.;
(i) Intentionally Deleted; and
Appears in 1 contract
Application of Payments of Principal. Notwithstanding anything to the contrary contained in this Agreement, the following principal payments or prepayments shall be allocated between among the Loan (without limiting any other provisions set forth herein, Borrowers hereby acknowledge and agree that an Exit Fee shall be payable in connection with any principal prepayment of all or any portion of the Loan), the Mortgage Loan and the Mezzanine Loan Loans as follows:
(a) so long as no Mortgage Event of Default shall have occurred and be continuing, any voluntary prepayment, including, without limitation, any prepayment pursuant to Section 2.7.3 or Section 3.3(d) of the Mortgage Loan Agreement, shall be applied pro rata in the following order (i) first, to the Reduced Acquisition Loan Debt, until such Reduced Acquisition Loan Debt and is paid in full, (ii) then, to the Construction Loan Debt, until such Construction Loan Debt is paid in full, (iii) then, any remaining amounts shall be disbursed by Mortgage Lender to First Mezzanine Lender to be applied to the First Mezzanine Debt, until the First Mezzanine Debt is paid in full, (iv) then, any remaining amounts shall be disbursed by First Mezzanine Lender to Second Mezzanine Lender to be applied to the Second Mezzanine Debt, until the Second Mezzanine Debt is paid in full, (v) then, any remaining amounts shall be disbursed by Second Mezzanine Lender to Lender to be applied to the Debt, until the Debt and the Mezzanine Debt are is paid in full; provided, however, that upon the occurrence and during the continuance of an a Mortgage Event of Default, Lender shall apply any voluntary prepayment shall be applied (i) first, by Mortgage Lender, to payment of the DebtMortgage Debt (including, without limitation, the Exit Fee payable pursuant to the Mortgage Loan Agreement), in any order, priority and proportions proportion as Mortgage Lender shall elect in its sole discretion from time to time, until the Mortgage Debt (including, without limitation, the Exit Fee payable pursuant to the Mortgage Loan Agreement) is paid in full, and (ii) then, Mortgage Lender shall then disburse any remainder to (i) First Mezzanine Lender for application in accordance with the terms of the First Mezzanine Loan Agreement Documents if the First Mezzanine Debt (or any portion thereof) is then outstanding, until the First Mezzanine Debt is paid in full, and then (iiiii) any balance to Borrowers;
(b) all Net Proceeds not required to be made available for Restoration shall be applied first to the Debtthen, in any order, priority and proportions as First Mezzanine Lender shall elect from time disburse any remainder to time, until the Debt is paid in full, and then, as a distribution permitted under applicable law, (i) disbursed to Second Mezzanine Lender for application in accordance with the terms of the Second Mezzanine Loan Agreement Documents if the Second Mezzanine Debt (or any portion thereof) is then outstanding, until the Second Mezzanine Debt is paid in full, and (iv) then, Second Mezzanine Lender shall disburse to Lender for application in accordance with the terms of the Loan Documents if the Debt (or any portion thereof) is then outstanding, until the Debt is paid in full, and (iiv) then, Lender shall disburse the balance disbursed balance, if any, to Mortgage Borrowers;
(b) Intentionally Deleted;
(c) all Net Proceeds not required to be made available for Restoration, and as to which Mortgage Lender has not otherwise elected in its sole discretion to make available for Restoration, shall be applied (i) first, to the Mortgage Debt (including, without limitation, the Exit Fee and any related Breakage Costs payable pursuant to the Mortgage Loan Agreement), in any order, priority and proportion as Mortgage Lender shall elect in its sole discretion from time to time, until the Mortgage Debt (including, without limitation, the Exit Fee payable pursuant to the Mortgage Loan Agreement) is paid in full, (ii) then, Mortgage Lender shall disburse any remaining amounts to First Mezzanine Lender to be applied to the First Mezzanine Debt, until the First Mezzanine Debt is paid in full, (iii) then, First Mezzanine Lender shall disburse any remaining amounts to Second Mezzanine Lender to be applied to the Second Mezzanine Debt, until the Second Mezzanine Debt is paid in full, (iv) then, Second Mezzanine Lender shall disburse any remaining amounts to Lender to be applied to the Debt, until the Debt is paid in full, and (v) then, Lender shall disburse any remaining amounts to Mortgage Borrowers;
(d) any Mortgage Reserve Funds or other cash collateral held by or on behalf of Mortgage Lender, whether in the Mortgage Cash Management AccountAccount or any of the Mortgage Reserve Funds, as Reserve Funds or otherwise, including including, without limitation, any Net Proceeds and/or any Excess Cash Flow then being held by Mortgage Lender, shall, upon the occurrence and during the continuance of an a Mortgage Event of Default, be applied by Mortgage Lender as follows or may continue to be held by Mortgage Lender as additional collateral for the Mortgage Loan, all in Mortgage Lender’s sole discretion: (i) first, to the DebtMortgage Debt (including, without limitation, the Exit Fee payable pursuant to the Mortgage Loan Agreement), in any order, priority and proportions as Mortgage Lender shall elect in its sole discretion from time to time, until the Mortgage Debt (including, without limitation, the Exit Fee payable pursuant to the Mortgage Loan Agreement) is paid in full and full, (ii) then, as a distribution permitted under applicable law, (i) disbursed by Mortgage Lender to First Mezzanine Lender for application in accordance with the terms of the First Mezzanine Loan Agreement Documents if the First Mezzanine Debt (or any portion thereof) is then outstanding, until the First Mezzanine Debt is paid in full, (iii) then, disbursed by First Mezzanine Lender to Second Mezzanine Lender for application in accordance with the terms of the Second Mezzanine Loan Documents if the Second Mezzanine Debt (or any portion thereof) is then outstanding, until the Second Mezzanine Debt is paid in full, (iv) then, disbursed by Second Mezzanine Lender to Lender for application in accordance with the terms of the Loan Documents if the Debt (or any portion thereof) is then outstanding, until the Debt is paid in full, (v) then, the balance, if any, disbursed by Lender to Mortgage Borrowers;
(e) the proceeds of any Release Parcel Release Price shall be applied in the following order (i) first, to the Reduced Acquisition Loan Debt, until such Reduced Acquisition Loan Debt is paid in full, (ii) then, to the Construction Loan Debt, until such Construction Loan Debt is paid in full, (iii) then, any remaining amounts shall be disbursed by Mortgage Lender to First Mezzanine Lender to be applied to the First Mezzanine Debt, until the First Mezzanine Debt is paid in full, (iv) then, any remaining amounts shall be disbursed by First Mezzanine Lender to Second Mezzanine Lender to be applied to the Second Mezzanine Debt, until the Second Mezzanine Debt is paid in full, (v) then, any remaining amounts shall be disbursed by Second Mezzanine Lender to Lender to be applied to the Debt, until the Debt is paid in full, and (vi) then any remaining amounts shall be disbursed by Lender to Mortgage Borrowers;
(f) Intentionally Deleted;
(g) the proceeds of any IP Release Price shall be allocated as follows: (A) the first $60,000,000 of any such IP Release Price payable in connection with such IP Sale shall be applied in the following order (i) first, to the Reduced Acquisition Loan Debt, until such Reduced Acquisition Loan Debt is paid in full, (ii) then, to the Construction Loan Debt, until such Construction Loan Debt is paid in full, (iii) then, any remaining amounts shall be disbursed to First Mezzanine Lender to be applied to the First Mezzanine Debt, until the First Mezzanine Debt is paid in full, (iv) then, any remaining amounts shall be disbursed to Second Mezzanine Lender to be applied to the Second Mezzanine Debt, until the Second Mezzanine Debt is paid in full, and then (iiv) the balance then, any remaining amounts shall be disbursed to BorrowersLender to be applied to the Debt, until the Debt is paid in full; andand (B) in the event the proceeds of any IP Release Price payable in connection with any IP Sale exceed $60,000,000 (the “Excess IP Release Price Proceeds”), such Excess IP Release Price Proceeds shall be applied in accordance with Section 2.4.3(g) of the Mortgage Loan Agreement;
(dh) all Rents and/or Vacant Space Rent received by Mortgage Lender upon the occurrence and during the continuance of an a Mortgage Event of Default pursuant to Section 3.1 of the Assignment of Leases shall be applied by Mortgage Lender as follows or may continue to be held by Mortgage Lender as additional collateral for the Mortgage Loan, all in Mortgage Lender’s sole discretion: first, (i) to the expenses of managing and securing any of the Properties, as contemplated by clause (a) of said Section 3.1 of such the Assignment of Leases, and/or (ii) to the Reduced Acquisition Loan Debt, in any order, priority and proportions as Lender shall elect in its discretion from time to time, until the Reduced Acquisition Loan Debt is paid in full, then to the Construction Loan Debt, until the Construction Loan Debt is paid in full, and then (A) disbursed by Mortgage Lender to First Mezzanine Lender for application in accordance with the terms of the First Mezzanine Loan Agreement Documents if the First Mezzanine Debt (or any portion thereof) is then outstanding, until the First Mezzanine Debt is paid in full, and then (B) disbursed to Second Mezzanine Lender for application in accordance with the terms of the Second Mezzanine Loan Documents if the Second Mezzanine Debt (or any portion thereof) is then outstanding, until the Second Mezzanine Debt is paid in full, and then (C) disbursed to Lender for application in accordance with the terms of the Loan Documents if the Debt (or any portion thereof) is then outstanding, until the Debt is paid in full and then (D) the balance disbursed by Lender to Mortgage Borrowers.;
(i) Intentionally Deleted; and
Appears in 1 contract
Samples: Third Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC)
