Existing Loans Schedule 2.3(j) lists, as of the date hereof, all (i) secured loans encumbering the Properties or any direct or indirect interest in the applicable Contributed Entity and (ii) any other indebtedness of any Contributed Entity or subsidiary (collectively, the “Disclosed Loans”) and the outstanding aggregate principal balance as of the date set forth on Schedule 2.3(j). To the Knowledge of Contributor, no monetary default (beyond applicable notice and cure periods) by any party exists under any of the Disclosed Loans and the documents entered into in connection therewith (collectively, the “Disclosed Loan Documents”) and no non-monetary default (beyond applicable notice and cure periods) by any party exists under any of the Disclosed Loan Documents.
Revolving Loans The Borrower shall repay to the Lenders on the Maturity Date the aggregate principal amount of all Revolving Loans outstanding on such date.
Term Loan Advances Subject to Section 2.5(b), the principal amount outstanding under each Term Loan Advance shall accrue interest at a floating per annum rate equal to two and three quarters of one percent (2.75%) above the Prime Rate, which interest shall be payable monthly in accordance with Section 2.5(d) below.
Existing Loan Seller represents and warrants to Buyer that the Existing Loan is the only indebtedness secured by the Property and that the information contained on Exhibit H is true, correct and complete in all material respects. To Seller’s Knowledge, neither Seller nor any guarantor is in default or breach of any provisions of the documents evidencing the Existing Loan and, to Seller’s Knowledge, no event or circumstance has occurred or exists which but for the passage of time would be a default under the Existing Loan. At Closing, Buyer shall accept the conveyance of the Property subject to the Existing Loan, including, without limitation, all liens securing its payment. If this Contract is still pending, by no later than fifteen (15) days after the Effective Date, Seller shall cause Existing Lender to deliver to Buyer (or for Seller to deliver to Buyer) a complete assumption and application, and thereafter Buyer shall, at its sole cost and expense, during the pendency of this Contract use diligent, commercially reasonable efforts, in cooperation with Seller, to facilitate Buyer’s assumption of the Existing Loan, including, without limitation, promptly furnishing and/or paying for all items required by the holder of the Existing Loan or its servicer to process Buyer’s application and pay all costs required by the holder of the Existing Loan or its servicer (such costs and all other costs and expenses of the holder of the Existing Loan or its servicer to consider, investigate, process, approve and document the transaction contemplated by this Contract, including all application, underwriting, legal, rating agency and assumption fees, being sometimes collectively referred to as the “Assumption Costs”); provided, however, in no event shall the Assumption Costs include any legal fees of Seller’s own counsel or legal fees of Existing Lender’s counsel necessitated by Seller’s negotiation of the Assumption Documents or necessitated by Seller’s pursuit of an exchange contemplated by Section 16.14 hereof. In addition, any assumption fee based solely on the amount of the Existing Loan need not be paid until Closing. Such efforts by Buyer shall include causing Buyer’s rights under this Contract to be assigned by no later than Closing to a single purpose entity or other special purpose entity as required by the holder of the Existing Loan or its servicer and causing an appropriate guarantor (“New Guarantor”) to become a guarantor of any non-recourse carveouts and environmental indemnitees of the Existing Loan in place and stead of the principals of Seller from and after the Closing Date. If the Assumption Documents require that Buyer or New Guarantor give representations or warranties to Existing Lender with respect to matters affecting the Property prior to Closing, Seller and such principals of Seller currently liable therefor shall indemnify, defend and hold harmless Buyer and New Guarantor from all claims from Existing Lender and all damages, costs and expenses owed to Existing Lender as a result of a breach thereof, provided that the representations and warranties so made are limited to reasonable matters affecting the Property prior to Closing. Except as expressly provided in this Section 4.4, Buyer, and not Seller, shall be responsible for all costs, fees and expenses incurred or payable as a result of the Assumption Costs and complying with the requirements of the Existing Loan for an assumption, and Buyer hereby agrees to indemnify, defend and hold harmless Seller from all of said costs, fees and expenses. Buyer’s foregoing indemnity regarding the Assumption Costs shall survive Closing and any termination of this Contract. The liens, assignments and security interests of the Existing Loan shall each be Permitted Exceptions (as shall be the Assumption Document to be executed at Closing).
Loan Advances During the Revolving Period, the Borrower may, at its option, request the Revolving Lenders to make advances of funds (each, a “Loan Advance”) by delivering a Funding Notice with respect to such Loan Advance to the Administrative Agent, which shall provide notification to the Revolving Lenders with respect thereto, in an aggregate amount up to the Availability as of the proposed Funding Date of the Loan Advance; provided, however, that no Revolving Lender shall be obligated to make any Loan Advance on or after the date that is two (2) Business Days prior to the earlier to occur of the applicable Revolving Period End Date or the Termination Date. Following the receipt of a Funding Notice during the Revolving Period, subject to the terms and conditions hereinafter set forth, the Revolving Lenders shall fund such Loan Advance.
Loans The Sponsor has agreed to make loans to the Company in the aggregate amount of up to $300,000 (the “Insider Loans”) pursuant to a promissory note substantially in the form annexed as an exhibit to the Registration Statement. The Insider Loans do not bear any interest and are repayable by the Company on the earlier of December 31, 2021 or the consummation of the Offering.
Revolving Loan Borrowings (i) Each Borrowing of Revolving Loans shall be made on notice given by a Borrower to the Revolving and LC Administrative Agent not later than 11:00 a.m. (New York time) (A) on the Business Day of the proposed Borrowing, in the case of a Borrowing of Base Rate Loans and (B) three Business Days prior to the date of the proposed Borrowing, in the case of a Borrowing of Eurodollar Rate Loans. Each such notice shall be in substantially the form of Exhibit C-2 (a “Notice of Revolving Borrowing”) (or shall be made by telephone and the same information shall be confirmed promptly thereafter in writing), specifying (1) the date of such proposed Borrowing, (2) the aggregate amount of such proposed Borrowing, (3) whether any portion of the proposed Borrowing will be of Base Rate Loans or Eurodollar Rate Loans, (4) the initial Interest Period or Interest Periods for any such Eurodollar Rate Loans, and (5) remittance instructions. The Revolving Loans shall be made as Base Rate Loans unless, subject to Section 2.17, the Notice of Revolving Borrowing specifies that all or a portion thereof shall be Eurodollar Rate Loans. Each Borrowing of Revolving Loans shall be in an aggregate amount that is an integral multiple of $1,000,000.00 (or $500,000.00 with respect to Swing Loans) and shall be allocated ratably in accordance with each Revolving Lender’s Revolving Commitment.
(ii) Unless the Revolving and LC Administrative Agent shall have received notice from a Revolving Lender prior to the date of any proposed Borrowing that such Revolving Lender shall not make available to the Revolving and LC Administrative Agent such Revolving Lender’s Ratable Portion of the Borrowing to be made on such date (or any portion thereof), the Revolving and LC Administrative Agent may assume that such Revolving Lender has made such Ratable Portion available to the Revolving and LC Administrative Agent on the date of such Borrowing in accordance with this Section 2.2(b), and the Revolving and LC Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower on such date a corresponding amount. If and to the extent that such Revolving Lender shall not have so made such Ratable Portion available to the Revolving and LC Administrative Agent, such Revolving Lender on the one hand and the Borrowers, jointly and severally, on the other agree to repay to the Revolving and LC Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrowers until the date such amount is repaid to the Revolving and LC Administrative Agent, at (i) in the case of the Borrowers, the interest rate applicable at the time to the Loans comprising such Borrowing and (ii) in the case of such Revolving Lender, the Federal Funds Rate for the first Business Day and thereafter at the interest rate applicable at the time to the Loans comprising such Borrowing. If such Revolving Lender shall repay to the Revolving and LC Administrative Agent such corresponding amount, such corresponding amount so repaid shall constitute such Revolving Lender’s Loan as part of such Borrowing for purposes of this Agreement. If the Borrowers shall repay to the Revolving and LC Administrative Agent such corresponding amount, such payment shall not relieve such Revolving Lender of any obligation it may have hereunder to the Borrowers.
(iii) The failure of any Revolving Lender to make its Revolving Loan or any payment required by it on the date specified, including any payment in respect of its participation in Swing Loans and Revolving Letter of Credit Obligations, shall not relieve any other Revolving Lender of its obligations to make its Revolving Loan or payment on such date but no such other Revolving Lender shall be responsible for the failure of any Revolving Lender to make a Revolving Loan or payment required under this Agreement.
Term Loans (i) Subject to and upon the terms and conditions of this Agreement, (I) Borrower may request and Bank agrees to make one or more term loans to Borrower in an aggregate original principal amount not to exceed $2,000,000 (each a “Tranche A Term Loan” and collectively the “Tranche A Term Loans”) at any time from the Closing Date through the Availability End Date and (II) Borrower may request and Bank agrees to make one or more additional term loans to Borrower in an aggregate original principal amount not to exceed $2,000,000 (each a “Tranche B Term Loan” and collectively, the “Tranche B Term Loans” and together with the Tranche A Term Loans, each a “Term Loan” and collectively, the “Term Loans”) at any time from the date Borrower achieves the Tranche B Milestones through the Availability End Date. The proceeds of the Term Loans shall be used for general working capital purposes and for capital expenditures.
(ii) Interest shall accrue from the date of each Term Loan at the rate specified in Section 2.3(a), and prior to the Availability End Date shall be payable monthly in arrears beginning on the 20th day of the month next following the such Term Loan, and continuing on the same day of each month thereafter. Any Term Loans that are outstanding on the Availability End Date shall be payable in equal monthly installments of principal, plus all accrued interest, beginning on the Amortization Start Date and continuing on the same day of each month thereafter through the Term Loan Maturity Date, at which time all amounts due in connection with the Term Loans and any other amounts due under this Agreement shall be immediately due and payable. Term Loans, once repaid, may not be reborrowed. Borrower may prepay any Term Loan in whole or in part without penalty or premium.
(iii) When Borrower desires to obtain a Term Loan (other than the initial Term Loan), Borrower shall notify Bank (which notice shall be irrevocable) by facsimile transmission to be received no later than 3:30 p.m. Eastern time on the Business Day prior to the date on which the Term Loan is to be made. Such notice shall be substantially in the form of Exhibit C. The notice shall be signed by an Authorized Officer.
Term Loan (a) Subject to the terms and conditions of this Agreement, each Term Loan Lender severally agrees to make an advance of its Pro Rata Term Share of the Term Loan to the Borrower on the Closing Date, and from the Closing Date to the Term Loan Maturity Date, convert and continue Segments from time to time in accordance with the terms hereof. The principal amount of each Segment of the Term Loan outstanding hereunder from time to time shall bear interest and the Term Loan shall be repayable as herein provided. No amount of the Term Loan repaid or prepaid by the Borrower may be reborrowed hereunder, and no subsequent advance under the Term Loan Facility shall be allowed after the initial such advance of the Term Loan on the Closing Date. Segments of the Term Loan may be Base Rate Segments or Eurodollar Rate Segments at the Borrower’s election, as provided herein.
(b) Not later than 1:00 P.M. New York time, on the Closing Date, each Term Loan Lender shall, pursuant to the terms and subject to the conditions of this Agreement, make the amount of its Pro Rata Term Share of the Term Loan available by wire transfer to the Administrative Agent. Such wire transfer shall be directed to the Administrative Agent at the Administrative Agent’s Office and shall be in the form of same day funds in Dollars. The amount so received by the Administrative Agent shall, subject to the terms and conditions of this Agreement, including without limitation the satisfaction of all applicable conditions in Sections 5.01 and 5.02, be made available to the Borrower by delivery of the proceeds thereof as shall be directed by the Responsible Officer of the Borrower and reasonably acceptable to the Administrative Agent. The initial Borrowing of the Term Loan may be a Eurodollar Rate Segment, a Base Rate Segment, or both; provided that if the Borrower desires that any portion of the initial Borrowing of the Term Loan is advanced as a Eurodollar Rate Segment, the Administrative Agent shall make such Borrowing as a Eurodollar Rate Segment only if, not later than three Business Days prior to the date that is then anticipated to be the Closing Date, the Administrative Agent has received from the Borrower a Term Loan Interest Rate Selection Notice with respect thereto, together with the Borrower’s written acknowledgement in form and substance satisfactory to the Administrative Agent that the provisions of Section 4.05 hereof shall apply to any failure by the Borrower to borrow on the date set forth in such Term Loan Interest Rate Selection notice any or all of the amounts specified in such Term Loan Interest Rate Selection Notice.
Term Advances The Borrower shall pay to the Administrative Agent for the ratable benefit of each Term Lender the aggregate outstanding principal amount of the Term Advances in quarterly installments each equal to $412,500 (which is equal to five percent (5%) of $8,250,000). Such quarterly installments shall be due and payable on each March 31st, June 30th, September 30th, and December 31st, commencing with December 31, 2012, and a final installment of the remaining, unpaid principal balance of the Term Advances payable on the Term Maturity Date.
