Cash Management Account. (a) Lender shall establish and maintain a segregated Eligible Account (the “Cash Management Account”) to be held by Xxxxx Fargo Bank, N.A., as agent, in trust for the benefit of Lender, which Cash Management Account shall be under the sole dominion and control of Lender. The Cash Management Account shall be entitled “The Royal Bank of Scotland plc, as Lender, pursuant to Loan Agreement dated as of April 1, 2010 — Cash Management Account.” Each Borrower (i) hereby grants to Lender a first priority security interest in the Cash Management Account and all deposits at any time contained therein and the proceeds thereof, and (ii) will take all actions reasonably requested by Lender to maintain in favor of Lender a perfected first priority security interest in the Cash Management Account, including, without limitation, executing and filing UCC-1 Financing Statements and continuations thereof. No Borrower shall in any way alter or modify the Cash Management Account. Lender and Servicer shall have the sole right to make withdrawals from the Cash Management Account and all costs and expenses for establishing and maintaining the Cash Management Account shall be paid by Borrowers. (b) Provided no Event of Default shall have occurred and be continuing, on each Payment Date all funds on deposit in the Cash Management Account shall be applied by Lender to the payment of the following items in the order indicated: (i) First, payments to Lender in respect of the Tax and Insurance Escrow Monthly Deposit in accordance with the terms and conditions of Section 7.2 hereof; (ii) Second, payment to Lender of the Monthly Debt Service Payment Amount, applied first to the payment of interest computed at the Interest Rate with the remainder applied to the reduction of the Outstanding Principal Balance; (iii) Third, payment to Lender in respect of the Replacement Reserve Monthly Deposit in accordance with the terms and conditions of Section 7.3.1 hereof; (iv) Fourth, payment to Lender in respect of the Rollover Reserve Monthly Deposit in accordance with the terms and conditions of Section 7.4.1 hereof; (v) Fifth, payment to Lender of any other amounts then due and payable under the Loan Documents (other than the Outstanding Principal Balance); (vi) Sixth, payment to Borrowers in an amount equal to the aggregate of (A) Operating Expenses (exclusive of management fees payable to any Affiliated Manager) due and payable by Borrowers during the succeeding month, as set forth in the Approved Annual Budget, and (B) payments for Extraordinary Expenses approved by Lender, if any; (vii) Seventh, as a distribution permitted under applicable law, payment to Mezzanine Lender of an amount equal to the Mezzanine Loan Debt Service Payment Amount; (viii) Eighth, so long as no Event of Default or Mezzanine Loan Event of Default has occurred and is continuing, payment to any Affiliated Manager of its management fees due under the Management Agreement, including any management fees that were not paid to such Affiliated Manager during the existence of any Event of Default or Mezzanine Loan Event of Default which no longer exists; (ix) Ninth, during a Cash Management Period, all amounts then remaining after payment of items (i) through (viii) (all amounts then remaining after payment of items (i) through (viii) being hereinafter referred to as “Excess Cash”), to the Excess Cash Reserve Fund in accordance with the terms and conditions of Section 7.5 hereof; (x) Tenth, if no Cash Management Period is continuing, and Lender has received notice from Mezzanine Lender that a Mezzanine Loan Event of Default is continuing, all Excess Cash to the Mezzanine Lender; and (xi) Lastly, if no Cash Management Period is continuing and Lender has not received notice from Mezzanine Lender that any Mezzanine Loan Event of Default is continuing, all Excess Cash to Borrowers. (c) The insufficiency of funds on deposit in the Cash Management Account shall not relieve any Borrower of the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever. (d) All funds on deposit in the Cash Management Account during the continuance of an Event of Default may be applied by Lender in such order, priority and proportions as Lender shall determine in its sole discretion until all Obligations of a monetary nature have been paid in full, with any amounts remaining being disbursed, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Documents 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. Each Borrower and Lender hereby agree and acknowledge that if (A) all of the Obligations have been paid in full, (B) there are funds remaining in the Reserve Funds, and (C) the Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining funds in the Reserve Funds to Borrowers, but rather shall deliver such funds, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full, to Mezzanine Lender to be held and applied in accordance with the terms of the Mezzanine Loan Documents until the Mezzanine Debt is paid in full, with any balance delivered to Borrowers. (e) Transfers of any Borrower’s funds from any of the Reserve Funds or any other source to or for the benefit of Mezzanine Borrower shall constitute distributions to Mezzanine Borrower, and, in each case, must comply with the requirements as to distributions of the Delaware Limited Liability Company Act or similar statute in the state of such Borrower’s organization. The provisions of this Agreement, the Cash Management Agreement and the other Loan Documents shall not create a debtor-creditor relationship between any Borrower and Mezzanine Lender.
Appears in 2 contracts
Samples: Loan Agreement (Cole Credit Property Trust Inc), Loan Agreement (Cole Credit Property Trust III, Inc.)
Cash Management Account. (a) Lender On or prior to the Closing Date, Borrower shall establish and thereafter maintain with the Cash Management Bank a segregated Eligible Account cash management account into which income from the Property payable to Borrower or Operating Lessee will be deposited (the “Cash Management Account”) to be held by Xxxxx Fargo Bank, N.A., as agent, in trust for the benefit of Lender), which Cash Management Account account shall be owned by Borrower but remain under the sole dominion and exclusive control (as defined in the New York Uniform Commercial Code) of Lender. The Cash Management Account As a condition precedent to the closing of the Loan, Borrower shall be entitled “The Royal Bank of Scotland plc, as Lender, pursuant to Loan Agreement dated as of April 1, 2010 — Cash Management Account.” Each Borrower (i) hereby grants to Lender a first priority security interest in cause the Cash Management Account Bank to execute and all deposits at any time contained therein and the proceeds thereofdeliver an agreement (as amended, and (ii) will take all actions reasonably requested by Lender to maintain restated, replaced, supplemented or otherwise modified in favor of Lender accordance herewith, a perfected first priority security interest in the “Cash Management AccountAgreement”) that provides, includinginter alia, without limitation, executing and filing UCC-1 Financing Statements and continuations thereof. No Borrower shall in any way alter or modify the Cash Management Account. that no party other than Lender and Servicer shall have the sole right to make withdrawals withdraw funds from the Cash Management Account and that the Cash Management Bank shall comply with all costs instructions and expenses for establishing and maintaining entitlement orders of Lender relating to the Cash Management Account and the other Collateral Accounts, in each case, without the consent of Borrower, Operating Lessee or any other Person. The fees and expenses of the Cash Management Bank shall be paid by BorrowersBorrower.
(b) Provided no Event of Default Borrower shall have occurred and be continuing, on each Payment Date cause Approved Property Manager to remit all funds on deposit sums in the Cash Management Agency Account shall be applied by Lender to the payment of the following items (as defined in the order indicated:
Approved Management Agreement) after (i) First, payments to Lender payment of Gross Operating Expenses (as defined in respect of the Tax and Insurance Escrow Monthly Deposit in accordance with the terms and conditions of Section 7.2 hereof;
Approved Management Agreement); (ii) Second, payment to Lender of the Monthly Debt Service Payment Amount, applied first to the payment of interest computed at any Management Fees (as defined in the Interest Rate with Approved Management Agreement) or other amounts owed to Manager or its affiliates under the remainder applied to the reduction of the Outstanding Principal Balance;
Approved Management Agreement then due; (iii) Third, payment to Lender in respect of the Replacement Reserve Monthly Deposit in accordance with the terms and conditions of Section 7.3.1 hereof;
(iv) Fourth, payment to Lender in respect of the Rollover Reserve Monthly Deposit in accordance with the terms and conditions of Section 7.4.1 hereof;
(v) Fifth, payment to Lender of any other amounts then due and payable under the Loan Documents (other than the Outstanding Principal Balance);
(vi) Sixth, payment to Borrowers in an amount equal to the aggregate of (A) Operating Expenses (exclusive of management fees payable to any Affiliated Manager) due and payable by Borrowers during the succeeding month, as set forth in the Approved Annual Budget, and (B) payments for Extraordinary Expenses approved by Lender, if any;
(vii) Seventh, as a distribution permitted under applicable law, payment to Mezzanine Lender deposit of an amount equal to 4% of Gross Revenue into the Mezzanine Loan Debt Service Payment Amount;
Reserve (viii) Eighth, so long as no Event of Default or Mezzanine Loan Event of Default has occurred and is continuing, payment to any Affiliated Manager of its management fees due under defined in the Approved Management Agreement, including any management fees that were not paid to such Affiliated Manager during ); and (iv) retention of Working Capital (as defined in the existence Approved Management Agreement) in the Agency Account of any Event of Default or Mezzanine Loan Event of Default which no longer exists;
(ix) Ninth, during a Cash Management Period, all amounts then remaining after payment of items (i) through (viii) (all amounts then remaining after payment of items (i) through (viii) being hereinafter referred to as “Excess Cash”)at least $250,000, to the Excess Cash Reserve Fund in accordance with the terms and conditions of Section 7.5 hereof;
(x) Tenth, if no Cash Management Period is continuing, and Lender has received notice from Mezzanine Lender that a Mezzanine Loan Event of Default is continuing, all Excess Cash to the Mezzanine Lender; and
(xi) Lastly, if no Cash Management Period is continuing and Lender has not received notice from Mezzanine Lender that any Mezzanine Loan Event of Default is continuing, all Excess Cash to BorrowersAccount.
(c) The insufficiency of funds on deposit in Lender shall have the right at any time, upon not less than 30 days’ prior written notice to Borrower, to replace the Cash Management Account shall not relieve Bank with any Borrower of Eligible Institution at which Eligible Accounts may be maintained that will promptly execute and deliver to Lender a Cash Management Agreement substantially identical to the obligation to make any payments, as and when due pursuant to this Cash Management Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoeverexecuted at Closing.
(d) All funds Borrower shall maintain at all times a Qualified Operating Expense Account. Borrower shall not permit any amounts unrelated to the Property to be commingled with amounts on deposit in the Qualified Operating Expense Account and shall cause all amounts payable with respect to Operating Expenses for the Property (to the extent such Operating Expenses have not previously been paid or retained by Approved Property Manager in accordance with the Approved Management Agreement) to be paid from the Qualified Operating Expense Account or the Cash Management Account (to the extent required or permitted hereunder) and no other account. Borrower shall deliver to Lender each month the monthly bank statement related to such Qualified Operating Expense Account. Unless and until an Event of Default shall occur, Borrower shall have direct access to, and shall be permitted to make withdrawals and, except during the continuance of a Trigger Period, equity distributions from, the Qualified Operating Expense Account, without the consent of Lender. Upon, and during the continuance of, an Event of Default may be applied by Lender in such orderDefault, priority and proportions as Lender shall determine in its sole discretion until all Obligations of a monetary nature have been paid in full, with any amounts remaining being disbursed, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Documents 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. Each Borrower and Lender hereby agree and acknowledge that if (A) all of the Obligations have been paid in full, (B) there are funds remaining in the Reserve Funds, and (C) the Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining funds in the Reserve Funds Qualified Operating Expense Account shall be remitted to Borrowers, but rather shall deliver such funds, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full, to Mezzanine Lender to be held and applied in accordance with the terms of the Mezzanine Loan Documents until the Mezzanine Debt is paid in full, with any balance delivered to Borrowers.
(e) Transfers of any Borrower’s funds from any of the Reserve Funds or any other source to or for the benefit of Mezzanine Borrower shall constitute distributions to Mezzanine Borrower, and, in each case, must comply with the requirements as to distributions of the Delaware Limited Liability Company Act or similar statute in the state of such Borrower’s organization. The provisions of this Agreement, the Cash Management Agreement and the other Loan Documents shall not create a debtor-creditor relationship between any Borrower and Mezzanine LenderAccount.
Appears in 1 contract
Cash Management Account. (a) Lender Upon the occurrence of a Cash Trap Period, Borrower shall establish and maintain a segregated Eligible Account (the “Cash Management Account”) to be held by Xxxxx Fargo Bank, N.A., as agent, Agent in trust and for the benefit of Administrative Agent for the benefit of Lender, which Cash Management Account shall be under the sole dominion and control of LenderAdministrative Agent. The Cash Management Account shall be entitled “The Royal Bank of Scotland plc, titled as Lender, pursuant to Loan Agreement dated as of April 1, 2010 — set forth in the Cash Management Account.” Each Agreement. Borrower (i) hereby grants to Administrative Agent for the benefit of Lender a first priority security interest in the Cash Management Account and all deposits at any time contained therein and the proceeds thereof, thereof and (ii) will take all actions reasonably requested by Lender necessary to maintain in favor of Lender Administrative Agent a perfected first priority security interest in the Cash Management Account, including, without limitation, executing and filing UCC-1 Financing Statements financing statements and continuations thereof. No Borrower shall will not in any way alter or modify the Cash Management AccountAccount and will notify Administrative Agent of the account number thereof. Lender and Servicer Administrative Agent shall have the sole right to make withdrawals from the Cash Management Account and all costs and expenses for establishing and maintaining the Cash Management Account shall be paid by BorrowersBorrower.
(b) Provided no Event of Default shall have occurred and be continuing, on each Payment Date all funds on deposit in the Cash Management Account shall be applied by Lender to the payment of the following items in the order indicated:
(i) First, payments to Lender in respect of the Tax and Insurance Escrow Monthly Deposit in accordance with the terms and conditions of Section 7.2 hereof;
(ii) Second, payment to Lender of the Monthly Debt Service Payment Amount, applied first to the payment of interest computed at the Interest Rate with the remainder applied to the reduction of the Outstanding Principal Balance;
(iii) Third, payment to Lender in respect of the Replacement Reserve Monthly Deposit in accordance with the terms and conditions of Section 7.3.1 hereof;
(iv) Fourth, payment to Lender in respect of the Rollover Reserve Monthly Deposit in accordance with the terms and conditions of Section 7.4.1 hereof;
(v) Fifth, payment to Lender of any other amounts then due and payable under the Loan Documents (other than the Outstanding Principal Balance);
(vi) Sixth, payment to Borrowers in an amount equal to the aggregate of (A) Operating Expenses (exclusive of management fees payable to any Affiliated Manager) due and payable by Borrowers during the succeeding month, as set forth in the Approved Annual Budget, and (B) payments for Extraordinary Expenses approved by Lender, if any;
(vii) Seventh, as a distribution permitted under applicable law, payment to Mezzanine Lender of an amount equal to the Mezzanine Loan Debt Service Payment Amount;
(viii) Eighth, so long as no Event of Default or Mezzanine Loan Event of Default has occurred and is continuing, payment to any Affiliated Manager of its management fees due under the Management Agreement, including any management fees that were not paid to such Affiliated Manager during the existence of any Event of Default or Mezzanine Loan Event of Default which no longer exists;
(ix) Ninth, during a Cash Management Period, all amounts then remaining after payment of items (i) through (viii) (all amounts then remaining after payment of items (i) through (viii) being hereinafter referred to as “Excess Cash”), to the Excess Cash Reserve Fund in accordance with the terms and conditions of Section 7.5 hereof;
(x) Tenth, if no Cash Management Period is continuing, and Lender has received notice from Mezzanine Lender that a Mezzanine Loan Event of Default is continuing, all Excess Cash to the Mezzanine Lender; and
(xi) Lastly, if no Cash Management Period is continuing and Lender has not received notice from Mezzanine Lender that any Mezzanine Loan Event of Default is continuing, all Excess Cash to Borrowers.
(c) The insufficiency of funds on deposit in the Cash Management Account shall not relieve any Borrower of from the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever.
(dc) All Subject to Section 2.6.2(d) hereof, all funds on deposit in the Cash Management Account following the occurrence and during the continuance of an Event of Default may be applied by Lender in such order, priority and proportions as Lender shall determine in its sole discretion until all Obligations of a monetary nature have been paid in full, with any amounts remaining being disbursed, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full Administrative Agent pursuant to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine any Loan Documents if the Mezzanine Debt (or any portion thereof) is then outstandingDocument in such order and priority as Administrative Agent shall determine, until the Mezzanine Debt is paid in full, and then (ii) any balance subject to Borrowers. Each Borrower and Lender hereby agree and acknowledge that if (A) all of the Obligations have been paid in full, (B) there are funds remaining in the Reserve Funds, and (C) the Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining funds in the Reserve Funds to Borrowers, but rather shall deliver such funds, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full, to Mezzanine Lender to be held and applied in accordance with the terms of the Mezzanine Loan Documents until the Mezzanine Debt is paid in full, with any balance delivered to BorrowersSection 7.6 of this Agreement.
(ed) Transfers of any Borrower’s funds from any of the Reserve Funds or any other source to or for the benefit of Mezzanine Borrower shall constitute distributions to Mezzanine Borrower, and, in each case, must comply with the requirements as to distributions of the Delaware Limited Liability Company Act or similar statute in the state of such Borrower’s organization. The provisions of this Agreement, hereby agrees that Administrative Agent may modify the Cash Management Agreement for the purpose of establishing additional sub accounts in connection with any payments otherwise required under this Agreement and the other Loan Documents and Administrative Agent shall provide prior written notice thereof to Borrower no less than five (5) Business Days prior to such modification.
(e) Notwithstanding anything contained herein or in the other Loan Documents to the contrary, Lender agrees that, notwithstanding the existence of an Event of Default, prior to a Priority Payment Cessation Event, Administrative Agent shall apply amounts on deposit in the Cash Management Account to payment of the Priority Waterfall Payments or, provided that all Priority Waterfall Payments have been made, for Protective Advances as reasonably determined by Administrative Agent. During the continuance of an Event of Default, any amounts remaining in the Cash Management Account after payment of the Priority Waterfall Payments and Protective Advances (to the extent a Priority Payment Cessation Event has not create a debtor-creditor relationship between any Borrower occurred) shall be applied by Administrative Agent in such order and Mezzanine Lenderpriority as Administrative Agent shall determine, subject to the terms of Section 7.6 of this Agreement.
Appears in 1 contract
Samples: Loan Agreement (MGM Growth Properties Operating Partnership LP)
Cash Management Account. (a) Lender Borrower shall establish and maintain a segregated Eligible Account (the “"Cash Management Account”") to be held by Xxxxx Fargo Bank, N.A., as agent, Servicer in trust for the benefit of Lender, which Cash Management Account shall be under the sole dominion and control of Lender. The Cash Management Account shall be entitled “The Royal Bank of Scotland plc"Column Financial, Inc., as Lender, pursuant to Loan Agreement dated as of April 1November 22, 2010 — 2004 - Cash Management Account.” Each " Borrower (i) hereby grants to Lender a first priority security interest in the Cash Management Account and all deposits at any time contained therein and the proceeds thereof, thereof and (ii) will take all actions reasonably requested by Lender necessary to maintain in favor of Lender a perfected first priority security interest in the Cash Management Account, including, without limitation, executing authorizing and filing UCC-1 Financing Statements financing statements and continuations thereof. No Borrower shall will not in any way alter or modify the Cash Management AccountAccount and will notify Lender of the account number thereof. Lender and Servicer shall have the sole right to make withdrawals from the Cash Management Account and all costs and expenses for establishing and maintaining the Cash Management Account shall be paid by BorrowersBorrower.
(b) Provided no Event of Default shall have occurred and be continuing, on each Payment Date (or, if such Payment Date is not a Business Day, on the immediately preceding Business Day) all funds on deposit in the Cash Management Account shall be applied by Lender to the payment of the following items in the order indicated:
(i) First, payments to Lender in respect of the Tax and Insurance Escrow Monthly Deposit Fund in accordance with the terms and conditions of Section 7.2 hereof;
(ii) Second, payment to Lender of the Monthly Debt Service Payment Amount, applied first to the payment of interest computed at the Interest Rate with the remainder applied to the reduction of the Outstanding Principal Balance;
(iii) Third, payment payments to Lender in respect of the Replacement Rollover Reserve Monthly Deposit Fund in accordance with the terms and conditions of Section 7.3.1 hereof;
(iv) Fourth, payment to Lender in respect of the Rollover Reserve Monthly Deposit in accordance with the terms and conditions of Section 7.4.1 hereof;
(v) Fifth, payment to Lender of any other amounts then due and payable under the Loan Documents (other than the Outstanding Principal BalanceAccrued Interest);
(vi) Sixth, payment to Borrowers in an amount equal to the aggregate of (A) Operating Expenses (exclusive of management fees payable to any Affiliated Manager) due and payable by Borrowers during the succeeding month, as set forth in the Approved Annual Budget, and (B) payments for Extraordinary Expenses approved by Lender, if any;
(vii) Seventh, as a distribution permitted under applicable law, payment to Mezzanine Lender of an amount equal to the Mezzanine Loan Debt Service Payment Amount;
(viii) Eighth, so long as no Event of Default or Mezzanine Loan Event of Default has occurred and is continuing, payment to any Affiliated Manager of its management fees due under the Management Agreement, including any management fees that were not paid to such Affiliated Manager during the existence of any Event of Default or Mezzanine Loan Event of Default which no longer exists;
(ix) Ninth, during a Cash Management Period, all amounts then remaining after payment of items (i) through (viii) (all amounts then remaining after payment of items (i) through (viii) being hereinafter referred to as “Excess Cash”), to the Excess Cash Reserve Fund in accordance with the terms and conditions of Section 7.5 hereof;
(x) Tenth, if no Cash Management Period is continuing, and Lender has received notice from Mezzanine Lender that a Mezzanine Loan Event of Default is continuing, all Excess Cash to the Mezzanine Lender; and
(xiv) Lastly, if no Cash Management Period is continuing and Lender has not received notice from Mezzanine Lender that payment of any Mezzanine Loan Event of Default is continuing, all excess amounts ("Excess Cash Flow") to BorrowersBorrower.
(c) The insufficiency of funds on deposit in the Cash Management Account shall not relieve any Borrower of from the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever.
(d) All funds on deposit in the Cash Management Account following the occurrence, and during the continuance continuation, of an Event of Default may be applied by Lender in such order, order and priority and proportions as Lender shall determine in its sole discretion until all Obligations of a monetary nature have been paid in full, with any amounts remaining being disbursed, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Documents 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. Each Borrower and Lender hereby agree and acknowledge that if (A) all of the Obligations have been paid in full, (B) there are funds remaining in the Reserve Funds, and (C) the Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining funds in the Reserve Funds to Borrowers, but rather shall deliver such funds, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full, to Mezzanine Lender to be held and applied in accordance with the terms of the Mezzanine Loan Documents until the Mezzanine Debt is paid in full, with any balance delivered to Borrowersdetermine.
(e) Transfers of any Borrower’s funds from any of the Reserve Funds or any other source to or for the benefit of Mezzanine Borrower shall constitute distributions to Mezzanine Borrower, and, in each case, must comply with the requirements as to distributions of the Delaware Limited Liability Company Act or similar statute in the state of such Borrower’s organization. The provisions of this Agreement, the Cash Management Agreement and the other Loan Documents shall not create a debtor-creditor relationship between any Borrower and Mezzanine Lender.
Appears in 1 contract
Cash Management Account. (a) Lender Borrower shall establish and maintain a segregated Eligible Account (the “Cash Management Account”"CASH MANAGEMENT ACCOUNT") to be held by Xxxxx Fargo Bank, N.A., as agent, Servicer in trust for the benefit of Lender, which Cash Management Account shall be under the sole dominion and control of Lender. The Cash Management Account shall be entitled “The Royal Bank of Scotland plc"Column Financial, Inc., as Lender, pursuant to Loan Agreement dated as of April 1August 19, 2010 — 2003 - Cash Management Account.” Each " Borrower (i) hereby grants to Lender a first priority security interest in the Cash Management Account and all deposits at any time contained therein and the proceeds thereof, thereof and (ii) will take all actions reasonably requested by Lender necessary to maintain in favor of Lender a perfected first priority security interest in the Cash Management Account, including, without limitation, including executing and filing UCC-1 Financing Statements and continuations thereof. No Borrower shall will not in any way alter or modify the Cash Management AccountAccount and will notify Lender of the account number thereof. Lender and Servicer shall have the sole right to make withdrawals from the Cash Management Account and all costs and expenses for establishing and maintaining the Cash Management Account shall be paid by BorrowersBorrower.
(b) Provided no Event of Default shall have occurred and be continuing, on each Payment Date Business Day all funds on deposit in the Cash Management Account shall be applied by Lender to the payment of the following items in the order indicated:
(i) First, payments to Lender in respect of the Tax and Insurance Escrow Monthly Deposit Fund in accordance with the terms and conditions of Section 7.2 hereof;
(ii) Second, payment to Lender of the Monthly monthly Debt Service payable on the next Payment AmountDate with respect to Note A, applied first to the payment of interest computed at the Applicable Interest Rate with respect to the outstanding principal amounts of Promissory Note A with the remainder applied to the reduction of the Outstanding Note A Monthly Principal BalancePayment Amount;
(iii) Third, payment payments to Lender in respect of the Replacement Reserve Monthly Deposit Fund in accordance with the terms and conditions of Section 7.3.1 hereof;
(iv) Fourth, payment to Lender in respect of the Rollover Reserve Monthly Deposit in accordance with the terms and conditions of Section 7.4.1 hereof;
(v) Fifth, payment to Lender of any other amounts then due and payable under the Loan Documents (Documents, other than monthly Debt Service payable with respect to Note B;
(v) Fifth, payment of the Outstanding monthly Debt Service payable on the next Payment Date with respect to Note B, applied first to the payment of interest computed at the Applicable Interest Rate with respect to the outstanding principal amounts of Promissory Note B, and, with the remainder, commencing on the earlier of the thirty-first(31st) Payment Date or the Payment Date first occurring after the Mezzanine Loan is paid in full, applied to the Note B Monthly Principal Balance)Payment Amount;
(vi) Sixth, payment funds necessary to Borrowers in an amount equal to pay the aggregate of (A) Monthly Operating Expenses (exclusive of management fees payable to any Affiliated Manager) due and payable by Borrowers during Expense Amount for the succeeding next calendar month, as set forth in the Approved Annual Budget, and (B) payments for Extraordinary Expenses approved by Lender, if anyshall be transferred to Borrower;
(vii) Seventh, as a distribution permitted under applicable law, payment payments to Mezzanine Lender Borrower in the amount of an amount equal to the Mezzanine Loan Debt Service Payment Amountany Extraordinary Expense approved by Lender;
(viii) Eighth, so long as no Event payments to the Debt Service Reserve Fund in accordance with the provisions of Default or Mezzanine Loan Event of Default has occurred and is continuing, payment to any Affiliated Manager of its management fees due under the Management Agreement, including any management fees that were not paid to such Affiliated Manager during the existence of any Event of Default or Mezzanine Loan Event of Default which no longer existsSection 5.1.27 hereof;
(ix) Ninth, during a provided no Event of Default then exists, any excess amounts deposited into the Cash Management Period, all amounts then Account with respect to any month and remaining after payment of items all applications pursuant to the preceding clauses (i) through (viiivii) (all amounts then remaining after payment of items (i) through (viii) being hereinafter referred to as “Excess Cash”), have been made shall be transferred to the Excess Mezzanine Deposit Account under the Mezzanine Cash Reserve Fund Management Agreement and applied in accordance with the terms Mezzanine Loan Agreement and conditions of Section 7.5 hereof;the Mezzanine Cash Management Agreement, which amounts shall be deemed to be distributed by Borrower to Mezzanine Borrower pursuant to Borrower's operating agreement; and
(x) TenthLastly, if provided (a) no Cash Management Period is continuing, and Lender has received notice from Mezzanine Lender that a Mezzanine Loan Event of Default is continuingthen exists and (b) the Mezzanine Loan has been paid in full, all Excess Cash such excess amounts shall be transferred to the Mezzanine Lender; and
(xi) Lastly, if no Cash Management Period is continuing and Lender has not received notice from Mezzanine Lender that any Mezzanine Loan Event of Default is continuing, all Excess Cash to BorrowersBorrower.
(c) The insufficiency of funds on deposit in the Cash Management Account shall not relieve any Borrower of from the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever.
(d) All funds on deposit in the Cash Management Account during following the continuance occurrence of an Event of Default may be applied by Lender in such order, order and priority and proportions as Lender shall determine in its sole discretion until all Obligations of a monetary nature have been paid in full, with any amounts remaining being disbursed, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Documents 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. Each Borrower and Lender hereby agree and acknowledge that if (A) all of the Obligations have been paid in full, (B) there are funds remaining in the Reserve Funds, and (C) the Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining funds in the Reserve Funds to Borrowers, but rather shall deliver such funds, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full, to Mezzanine Lender to be held and applied in accordance with the terms of the Mezzanine Loan Documents until the Mezzanine Debt is paid in full, with any balance delivered to Borrowersdetermine.
(e) Transfers of any Borrower’s funds from any of the Reserve Funds or any other source to or for the benefit of Mezzanine Borrower shall constitute distributions to Mezzanine Borrower, and, in each case, must comply with the requirements as to distributions of the Delaware Limited Liability Company Act or similar statute in the state of such Borrower’s organization. The provisions of this Agreement, the Cash Management Agreement and the other Loan Documents shall not create a debtor-creditor relationship between any Borrower and Mezzanine Lender.
Appears in 1 contract
Cash Management Account. (a) Lender Borrowers shall establish and maintain a segregated Eligible Account (the “"Cash Management Account”") to be held by Xxxxx Fargo Bank, N.A., as agent, Servicer in trust for the benefit of Lender, which Cash Management Account shall be under the sole dominion and control of Lender. The Cash Management Account shall be entitled “The Royal Bank of Scotland plc"Column Financial, Inc., as Lender, pursuant to Loan Agreement dated as of April 124, 2010 — 2007 – Cash Management Account.” Each " Borrower (i) hereby grants to Lender a first priority security interest in the Cash Management Account and all deposits at any time contained therein and the proceeds thereof, thereof and (ii) will take all actions reasonably requested by Lender necessary to maintain in favor of Lender a perfected first priority security interest in the Cash Management Account, including, without limitation, executing authorizing and filing UCC-1 Financing Statements financing statements and continuations thereof. No Borrower shall will not in any way alter or modify the Cash Management AccountAccount and will notify Lender of the account number thereof. Lender and Servicer shall have the sole right to make withdrawals from the Cash Management Account and all costs and expenses for establishing and maintaining the Cash Management Account shall be paid by BorrowersBorrower.
(b) Provided no Event of Default shall have occurred and be continuing, on each Payment Date (or, if such Payment Date is not a Business Day, on the immediately preceding Business Day) all funds on deposit in the Cash Management Account shall be applied by Lender to the payment of the following items in the order indicated:
(i) First, payments to Lender in respect of the Tax and Insurance Escrow Monthly Deposit Fund in accordance with the terms and conditions of Section 7.2 hereof;
(ii) Second, payment to Lender of the Monthly Debt Service Payment Amount, applied first to the payment of interest computed at the Interest Rate with the remainder applied to the reduction of the Outstanding Principal Balance;
(iii) Third, payment payments to Lender in respect of the Replacement Rollover Reserve Monthly Deposit Fund in accordance with the terms and conditions of Section 7.3.1 hereof, if applicable;
(iv) Fourth, payment to Lender in respect of the Rollover Replacement Reserve Monthly Deposit Fund in accordance with the terms and conditions of Section 7.4.1 hereof, if applicable;
(v) Fifth, payment to Lender of any other amounts then due and payable under the Loan Documents (other than the Outstanding Principal BalanceAccrued Interest);
(vi) SixthLastly, payment to Borrowers in an amount equal to the aggregate of (A) Operating Expenses (exclusive of management fees payable to any Affiliated Manager) due and payable by Borrowers during the succeeding month, as set forth in the Approved Annual Budget, and (B) payments for Extraordinary Expenses approved by Lender, if any;
(vii) Seventh, as a distribution permitted under applicable law, payment to Mezzanine Lender of an amount equal to the Mezzanine Loan Debt Service Payment Amount;
(viii) Eighth, so long as no Event of Default or Mezzanine Loan Event of Default has occurred and is continuing, payment to any Affiliated Manager of its management fees due under the Management Agreement, including any management fees that were not paid to such Affiliated Manager during the existence of any Event of Default or Mezzanine Loan Event of Default which no longer exists;
excess amounts (ix) Ninth, during a Cash Management Period, all amounts then remaining after payment of items (i) through (viii) (all amounts then remaining after payment of items (i) through (viii) being hereinafter referred to as “Excess Cash”), to the "Excess Cash Reserve Fund in accordance with the terms and conditions of Section 7.5 hereof;
(xFlow") Tenth, if no Cash Management Period is continuing, and Lender has received notice from Mezzanine Lender that a Mezzanine Loan Event of Default is continuing, all Excess Cash to the Mezzanine Lender; and
(xi) Lastly, if no Cash Management Period is continuing and Lender has not received notice from Mezzanine Lender that any Mezzanine Loan Event of Default is continuing, all Excess Cash to BorrowersBorrower.
(c) The insufficiency of funds on deposit in the Cash Management Account shall not relieve any Borrower of Borrowers from the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever.
(d) All funds on deposit in the Cash Management Account following the occurrence, and during the continuance continuation, of an Event of Default may be applied by Lender in such order, order and priority and proportions as Lender shall determine in its sole discretion until all Obligations of a monetary nature have been paid in full, with any amounts remaining being disbursed, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Documents 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. Each Borrower and Lender hereby agree and acknowledge that if (A) all of the Obligations have been paid in full, (B) there are funds remaining in the Reserve Funds, and (C) the Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining funds in the Reserve Funds to Borrowers, but rather shall deliver such funds, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full, to Mezzanine Lender to be held and applied in accordance with the terms of the Mezzanine Loan Documents until the Mezzanine Debt is paid in full, with any balance delivered to Borrowersdetermine.
(e) Transfers of any Borrower’s funds from any of the Reserve Funds or any other source to or for the benefit of Mezzanine Borrower shall constitute distributions to Mezzanine Borrower, and, in each case, must comply with the requirements as to distributions of the Delaware Limited Liability Company Act or similar statute in the state of such Borrower’s organization. The provisions of this Agreement, the Cash Management Agreement and the other Loan Documents shall not create a debtor-creditor relationship between any Borrower and Mezzanine Lender.
Appears in 1 contract
Cash Management Account. (a) Lender Borrower shall establish and maintain a segregated Eligible Account (the “"Cash Management Account”") to be held by Xxxxx Fargo Bank, N.A., as agent, in trust for the benefit of Lender, which Cash Management Account shall be under subject to the sole dominion and control of LenderCash Management Agreement. The Cash Management Account shall be entitled “The Royal Bank of Scotland plc"General Electric Capital Corporation, as Lender, pursuant Lender to Loan Agreement dated as of April 1, 2010 — the LaSalle Borrower - Cash Management Account.” Each "; provided, however, that, if the Loan is transferred or sold, the name of the Cash Management Account shall be changed at the request of Lender to reflect the legal name of Lender's successor. Borrower (i) shall deposit, and shall direct the Operating Lessee to deposit all Operating Lease Rent directly into the Cash Management Account. Borrower shall deposit all amounts received by Borrower constituting Rents into the Cash Management Account promptly upon receipt. Borrower hereby grants to Lender a first priority security interest in the Cash Management Account and all deposits at any time contained therein and the proceeds thereof, thereof and (ii) will take all actions reasonably requested by Lender necessary to maintain in favor of Lender a perfected first priority security interest in the Cash Management Account, including, without limitation, executing and filing UCC-1 Financing Statements and continuations thereof. No Borrower shall will not in any way alter or modify the Cash Management Account. Lender and Servicer shall have the sole right to make withdrawals from the Cash Management Account and all costs and expenses for establishing and maintaining will notify Lender of the Cash Management Account shall be paid by Borrowersaccount number thereof.
(b) Provided no Event of Default shall have occurred and be continuing, following the occurrence and during the continuance of a Trigger Event, on the first day of each Payment Date calendar month (or, if such day is not a Business Day, on the immediately preceding Business Day) all funds on deposit in the Cash Management Account shall be applied by Lender to the payment of the following items in the order indicated:
(i) First, for payment of Ground Rent to become due on the first day of the next calendar month;
(ii) Second, payments to Lender in respect of the Tax and Insurance Escrow Monthly Deposit Fund in accordance with the terms and conditions of Section 7.2 5.4 hereof;
(iiiii) SecondThird, payment to Lender of the Monthly Debt Service Payment Amount, applied first to the payment of accrued and unpaid interest computed at the Interest Contract Rate with the remainder applied to the reduction of the Outstanding Principal Balanceoutstanding principal balance of the Note;
(iiiiv) ThirdFourth, payment payments to Lender in respect of the Replacement Reserve Monthly Deposit Escrow Fund in accordance with the terms and conditions of Section 7.3.1 hereof;
(iv) Fourth, payment to Lender in respect of the Rollover Reserve Monthly Deposit in accordance with the terms and conditions of Section 7.4.1 hereof;
(v) Fifth, payment to Lender of any other amounts then due and payable under the Loan Documents (other than the Outstanding Principal BalanceAccrued Interest);
(vi) Sixth, payment to Borrowers Lender of any escrows, principal or interest (other than "Accrued Interest" (as defined in an amount equal to the aggregate of (AAdditional Loan Documents)) Operating Expenses (exclusive of management fees payable to any Affiliated Manager) amounts then due and payable by Borrowers during in connection with the succeeding monthAdditional Loan; provided, as set forth however, that no payments shall be applied in accordance with this clause (vi) until Lender has reasonably determined that there are not sufficient funds on deposit in the Cash Management Account to pay the amounts due and payable with respect to such escrows, principal and interest;
(vii) Seventh, on or after the Anticipated Payment Date, payments for monthly Cash Expenses incurred in accordance with the related Approved Annual BudgetBudget pursuant to a written request for payment submitted by Borrower to Lender specifying the individual Cash Expenses in a form reasonably acceptable to Lender;
(viii) Eighth, and (B) on or after the Anticipated Payment Date, payments for Extraordinary Expenses approved by Lender, if any;
(vii) Seventh, as a distribution permitted under applicable lawwhich approval shall not be unreasonably withheld, payment to Mezzanine Lender of an amount equal to the Mezzanine Loan Debt Service Payment Amount;
(viii) Eighth, so long as no Event of Default delayed or Mezzanine Loan Event of Default has occurred and is continuing, payment to any Affiliated Manager of its management fees due under the Management Agreement, including any management fees that were not paid to such Affiliated Manager during the existence of any Event of Default or Mezzanine Loan Event of Default which no longer existsconditioned;
(ix) Ninth, during a Cash Management Period, all amounts then remaining after payment of items (i) through (viii) (all amounts then remaining after payment of items (i) through (viii) being hereinafter referred to as “Excess Cash”), payments to the Excess Cash Reserve Replacement Escrow Fund in accordance with until the terms and conditions of Section 7.5 hereof;Replacement Fund Recoupment Amount is on deposit therein.
(x) Tenth, if no Cash Management Period is continuingon or after the Anticipated Payment Date, payments to Lender in reduction of the outstanding principal balance of the Loan;
(xi) Eleventh, on or after the Anticipated Payment Date, payments to Lender for Accrued Interest;
(xii) Twelfth, payments to Lender of any additional amounts then due and Lender has received notice from Mezzanine Lender that a Mezzanine Loan Event of Default is continuing, all Excess Cash to payable in connection with the Mezzanine LenderAdditional Loan; and
(xixiii) Lastly, if no Cash Management Period is continuing and Lender has not received notice from Mezzanine Lender that any Mezzanine Loan Event of Default is continuing, all Excess Cash to Borrowers.
(c) The insufficiency of funds on deposit in the Cash Management Account shall not relieve any Borrower of the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever.
(d) All funds on deposit in the Cash Management Account during the continuance of an Event of Default may be applied by Lender in such order, priority and proportions as Lender shall determine in its sole discretion until all Obligations of a monetary nature have been paid in full, with any amounts remaining being disbursed, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Documents 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. Each Borrower and Lender hereby agree and acknowledge that if (A) all of the Obligations have been paid in full, (B) there are funds remaining in the Reserve Funds, and (C) the Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining funds in the Reserve Funds to Borrowers, but rather shall deliver such funds, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full, to Mezzanine Lender to be held and applied in accordance with the terms of the Mezzanine Loan Documents until the Mezzanine Debt is paid in full, with any balance delivered to Borrowers.
(e) Transfers payment of any excess amounts to Borrower’s funds from any of the Reserve Funds or any other source to or for the benefit of Mezzanine Borrower shall constitute distributions to Mezzanine Borrower, and, in each case, must comply with the requirements as to distributions of the Delaware Limited Liability Company Act or similar statute in the state of such Borrower’s organization. The provisions of this Agreement, the Cash Management Agreement and the other Loan Documents shall not create a debtor-creditor relationship between any Borrower and Mezzanine Lender.
Appears in 1 contract
Cash Management Account. (a) Lender During the term of the Loan, Borrower shall establish and maintain a segregated Eligible Account (the “Cash Management Account”) to be held by Xxxxx Fargo Bank, N.A., as agent, Agent in trust and for the benefit of Lender, which Cash Management Account shall be under the sole dominion and control of Lender. The Cash Management Account shall be entitled “The Royal Bank of Scotland plcXxxx XX Xxxxxx TX, LLC as Borrower and JPMorgan Chase Bank, N.A., as Lender, pursuant to Loan Agreement dated as of April 1May 19, 2010 — - Cash Management Account.” Each Borrower (i) hereby grants to Lender a first priority security interest in the Cash Management Account and all deposits at any time contained therein and the proceeds thereof, thereof and (ii) will take all actions reasonably requested by Lender necessary to maintain in favor of Lender a perfected first priority security interest in the Cash Management Account, including, without limitation, executing and filing UCC-1 Financing Statements and continuations thereof. No Borrower shall will not in any way alter or modify the Cash Management AccountAccount and will notify Lender of the account number thereof. Lender and Servicer shall have the sole right to make withdrawals from the Cash Management Account and all costs and expenses for establishing and maintaining the Cash Management Account shall be paid by BorrowersBorrower pursuant to the Fee Agreement (as defined in the Cash Management Agreement).
(b) Provided no Event of Default shall have occurred and be continuing, on each Payment Date all funds on deposit in the Cash Management Account shall be applied by Lender to the payment of the following items in the order indicated:
(i) First, payments to Lender in respect of the Tax and Insurance Escrow Monthly Deposit in accordance with the terms and conditions of Section 7.2 hereof;
(ii) Second, payment to Lender of the Monthly Debt Service Payment Amount, applied first to the payment of interest computed at the Interest Rate with the remainder applied to the reduction of the Outstanding Principal Balance;
(iii) Third, payment to Lender in respect of the Replacement Reserve Monthly Deposit in accordance with the terms and conditions of Section 7.3.1 hereof;
(iv) Fourth, payment to Lender in respect of the Rollover Reserve Monthly Deposit in accordance with the terms and conditions of Section 7.4.1 hereof;
(v) Fifth, payment to Lender of any other amounts then due and payable under the Loan Documents (other than the Outstanding Principal Balance);
(vi) Sixth, payment to Borrowers in an amount equal to the aggregate of (A) Operating Expenses (exclusive of management fees payable to any Affiliated Manager) due and payable by Borrowers during the succeeding month, as set forth in the Approved Annual Budget, and (B) payments for Extraordinary Expenses approved by Lender, if any;
(vii) Seventh, as a distribution permitted under applicable law, payment to Mezzanine Lender of an amount equal to the Mezzanine Loan Debt Service Payment Amount;
(viii) Eighth, so long as no Event of Default or Mezzanine Loan Event of Default has occurred and is continuing, payment to any Affiliated Manager of its management fees due under the Management Agreement, including any management fees that were not paid to such Affiliated Manager during the existence of any Event of Default or Mezzanine Loan Event of Default which no longer exists;
(ix) Ninth, during a Cash Management Period, all amounts then remaining after payment of items (i) through (viii) (all amounts then remaining after payment of items (i) through (viii) being hereinafter referred to as “Excess Cash”), to the Excess Cash Reserve Fund in accordance with the terms and conditions of Section 7.5 hereof;
(x) Tenth, if no Cash Management Period is continuing, and Lender has received notice from Mezzanine Lender that a Mezzanine Loan Event of Default is continuing, all Excess Cash to the Mezzanine Lender; and
(xi) Lastly, if no Cash Management Period is continuing and Lender has not received notice from Mezzanine Lender that any Mezzanine Loan Event of Default is continuing, all Excess Cash to Borrowers.
(c) The insufficiency of funds on deposit in the Cash Management Account shall not relieve any Borrower of from the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever.
(dc) All funds on deposit in the Cash Management Account following the occurrence and during the continuance of an Event of Default may be applied by Lender in such order, order and priority and proportions as Lender shall determine in its sole discretion until all Obligations of a monetary nature have been paid in full, with any amounts remaining being disbursed, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Documents 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. Each Borrower and Lender hereby agree and acknowledge that if (A) all of the Obligations have been paid in full, (B) there are funds remaining in the Reserve Funds, and (C) the Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining funds in the Reserve Funds to Borrowers, but rather shall deliver such funds, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full, to Mezzanine Lender to be held and applied in accordance with the terms of the Mezzanine Loan Documents until the Mezzanine Debt is paid in full, with any balance delivered to Borrowersdetermine.
(ed) Transfers of any Borrower’s funds from any of the Reserve Funds or any other source to or for the benefit of Mezzanine Borrower shall constitute distributions to Mezzanine Borrower, and, in each case, must comply with the requirements as to distributions of the Delaware Limited Liability Company Act or similar statute in the state of such Borrower’s organization. The provisions of this Agreement, hereby agrees that Lender may modify the Cash Management Agreement for the purpose of establishing additional sub-accounts in connection with any payments otherwise required under this Agreement and the other Loan Documents and Lender shall not create a debtor-creditor relationship between any Borrower and Mezzanine Lenderprovide notice thereof to Borrower.
Appears in 1 contract
Samples: Loan Agreement (Cole Credit Property Trust III, Inc.)
Cash Management Account. (a) Lender During the term of the Loan, Borrower shall establish and maintain a segregated Eligible Account (the “Cash Management Account”) to be held by Xxxxx Fargo Bank, N.A., as agent, Cash Management Bank in trust and for the benefit of Lender, which Lender in accordance with the Cash Management Agreement. The Cash Management Account shall be under the sole dominion and control of Lender. The Cash Management Account shall be entitled “The Royal Bank of Scotland plc, as Lender, pursuant to Loan Agreement dated as of April 1, 2010 — Cash Management Account.” Each Borrower (i) hereby grants to Lender a first priority security interest in the Cash Management Account and all deposits at any time contained therein and the proceeds thereof, and (ii) will take all actions reasonably requested by Lender to maintain in favor of Lender a perfected first priority security interest in the Cash Management Account, including, without limitation, executing and filing UCC-1 Financing Statements and continuations thereof. No Borrower shall in any way alter or modify the Cash Management Account. Lender and Servicer shall have the sole right to make withdrawals from the Cash Management Account and all Account. All costs and expenses for establishing and maintaining the Cash Management Account shall be paid by BorrowersBorrower.
(b) Provided that no Event of Default shall have occurred and be continuingremain outstanding, on each Payment Date Business Day during a Cash Management Trigger Event Period, all funds on deposit in the Cash Management Account shall be applied by Lender to the payment of in the following items in the amounts and order indicatedof priority:
(i) First, payments funds sufficient to Lender in respect of pay the next monthly deposit to the Tax and Insurance Escrow Monthly Deposit Funds in accordance with the terms and conditions of Section 7.2 6.2 hereof;
(ii) Second, payment funds sufficient to Lender of pay the Monthly Debt Service Payment Amount, applied first next monthly deposit to the payment of interest computed at the Interest Rate with the remainder applied to the reduction of the Outstanding Principal Balance;
(iii) Third, payment to Lender in respect of the Replacement Reserve Monthly Deposit Insurance Funds in accordance with the terms and conditions of Section 7.3.1 6.3 hereof;
(iii) Third, funds sufficient to pay the fees and expenses of Cash Management Bank then due and payable to Cash Management Bank in accordance with the Cash Management Agreement;
(iv) Fourth, funds sufficient to pay the next monthly Debt Service payment pursuant to Lender in respect of Section 2.3.1 hereof;
(v) Fifth, funds sufficient to pay the Rollover Reserve Monthly Deposit next monthly deposit to the Capital Expenditure Funds in accordance with the terms and conditions of Section 7.4.1 6.4 hereof;
(vvi) FifthSixth, funds sufficient to pay any interest accruing at the Default Rate (without duplication with clause (iv) above), late payment to Lender of charges and any other amounts then due and payable under the Loan Documents (other than the Outstanding Principal Balance);
(vi) Sixth, payment to Borrowers in an amount equal to the aggregate of (A) Operating Expenses (exclusive of management fees payable to any Affiliated Manager) due and payable by Borrowers during the succeeding month, as set forth in the Approved Annual Budget, and (B) payments for Extraordinary Expenses approved by Lender, if anyDocuments;
(vii) Seventh, funds sufficient to pay for Operating Expenses for the applicable period incurred in accordance with an Approved Annual Budget and as set forth in a distribution permitted under applicable law, request for payment submitted by Borrower to Mezzanine Lender of an amount equal specifying the individual Operating Expenses in form and substance reasonably acceptable to the Mezzanine Loan Debt Service Payment AmountLender;
(viii) Eighth, so long as no Event of Default or Mezzanine Loan Event of Default has occurred and is continuingfunds sufficient to pay for Extraordinary Expenses for the applicable period approved by Lender, payment to any Affiliated Manager of its management fees due under the Management Agreement, including any management fees that were not paid to such Affiliated Manager during the existence of any Event of Default or Mezzanine Loan Event of Default which no longer existsif any;
(ix) Ninth, during a Cash Management Sweep Event Period, all amounts then the remaining after payment of items amount (i) through (viii) (all amounts then remaining after payment of items (i) through (viii) being hereinafter referred to as the “Excess CashCash Flow”), to ) shall be deposited into the Excess Cash Reserve Fund Flow Account and held and applied in accordance with the terms and conditions of Section 7.5 Sections 6.7 and 6.8 hereof;; and
(x) TenthLastly, if no the remaining amount shall be deposited into an account designated by Borrower in accordance with the Cash Management Period is continuing, and Lender has received notice from Mezzanine Lender that a Mezzanine Loan Event of Default is continuing, all Excess Cash to the Mezzanine Lender; and
(xi) Lastly, if no Cash Management Period is continuing and Lender has not received notice from Mezzanine Lender that any Mezzanine Loan Event of Default is continuing, all Excess Cash to BorrowersAgreement.
(c) The insufficiency Notwithstanding anything to the contrary contained in this Agreement, the Note or the other Loan Documents, upon the occurrence and during the continuation of funds an Event of Default, Lender may, in addition to any and all other rights and remedies available to Lender, apply any amounts then on deposit in the Cash Management Account shall not relieve any Borrower to the payment of the obligation to make Debt in any paymentsorder, proportion and priority as Lender may determine in its sole and when due pursuant to absolute discretion.
(d) Borrower hereby agrees that Lender may modify the Cash Management Agreement for the purpose of establishing additional sub-accounts in connection with any payments otherwise required under this Agreement Agreement, the Note and the other Loan Documents, which sub-accounts shall at all times be Eligible Accounts (and may be ledger or book entry accounts and not actual accounts). All costs and expenses for establishing and maintaining such obligations accounts shall be separate and independent, and not conditioned on any event or circumstance whatsoeverpaid by Borrower.
(d) All funds on deposit in the Cash Management Account during the continuance of an Event of Default may be applied by Lender in such order, priority and proportions as Lender shall determine in its sole discretion until all Obligations of a monetary nature have been paid in full, with any amounts remaining being disbursed, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Documents 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. Each Borrower and Lender hereby agree and acknowledge that if (A) all of the Obligations have been paid in full, (B) there are funds remaining in the Reserve Funds, and (C) the Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining funds in the Reserve Funds to Borrowers, but rather shall deliver such funds, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full, to Mezzanine Lender to be held and applied in accordance with the terms of the Mezzanine Loan Documents until the Mezzanine Debt is paid in full, with any balance delivered to Borrowers.
(e) Transfers of any Borrower’s funds from any of the Reserve Funds or any other source to or for the benefit of Mezzanine Borrower shall constitute distributions to Mezzanine Borrower, and, in each case, must comply with the requirements as to distributions of the Delaware Limited Liability Company Act or similar statute in the state of such Borrower’s organization. The provisions of this Agreement, the Cash Management Agreement and the other Loan Documents shall not create a debtor-creditor relationship between any Borrower and Mezzanine Lender.
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital - Retail Centers of America, Inc.)
Cash Management Account. (a) Lender Borrower shall establish and maintain a segregated Eligible Account (the “Cash Management Account”) to be held by Xxxxx Fargo Bank, N.A., as agent, Lender or by Servicer in trust for the benefit of Lender, which Cash Management Account shall be under the sole dominion and control of Lender. The Cash Management Account shall be entitled “The Royal Bank of Scotland plcGreenwich Capital Financial Products, Inc., as Lender, pursuant to the Amended and Restated Loan Agreement dated as of April 1December 14, 2010 — 2007 - Cash Management Account.” Each ”. Borrower (i) hereby grants to Lender a first priority security interest in the Cash Management Account and all deposits at any time contained therein and the proceeds thereof, thereof and (ii) will take all actions reasonably requested by Lender that are necessary to maintain in favor of Lender a perfected first priority security interest in the Cash Management Account, including, without limitation, executing and filing UCC-1 Financing Statements and continuations thereof. No Borrower shall in any way alter or modify the Cash Management Account. Lender and Servicer shall have the sole right to make withdrawals from the Cash Management Account for application pursuant to the terms of this Agreement and the other Loan Documents and all reasonable costs and expenses for establishing and maintaining the Cash Management Account shall be paid by BorrowersBorrower.
(b) Provided no Event of Default shall have occurred and be continuing, on each Payment Date (or such other date as is expressly set forth in the Cash Management Agreement) all funds on deposit in the Cash Management Account shall be applied by Lender to the payment of the following items in the order indicated:
(i) First, only if Marriott Manager or an Approved Qualified Manager is not managing the Property, payments to Lender in respect of the Tax and Insurance Escrow Monthly Deposit Fund in accordance with the terms and conditions of Section 7.2 hereof;
(ii) Second, payment to Lender of the Monthly Debt Service Payment Amount, applied first to the payment of interest computed at the Interest Rate Amount in accordance with the remainder applied to the reduction of the Outstanding Principal Balanceterms and conditions hereof;
(iii) Third, payment only if Marriott Manager or an Approved Qualified Manager is not managing the Property, payments to Lender in respect of the Replacement Reserve Monthly Deposit Fund in accordance with the terms and conditions of Section 7.3.1 hereof;
(iv) Fourth, payment to Lender in respect of the Rollover Reserve Monthly Deposit in accordance with the terms and conditions of Section 7.4.1 hereof;
(v) Fifth, payment to Lender of any other amounts then due and payable under the Loan Documents Documents;
(other than v) Fifth, only if Marriott Manager or an Approved Qualified Manager is not managing the Outstanding Principal Balance);Property, payment to Borrower of an amount sufficient to pay the monthly Operating Expenses and Capital Expenditures pursuant to the applicable Approved Annual Budget; and
(vi) SixthLastly, payment to Borrowers all amounts remaining in an amount equal to the aggregate Cash Management Account after the application of the amounts required for the payments set forth above shall be remitted as follows:
(A) Operating Expenses (exclusive of management fees payable unless and until the Debt Service Coverage Ratio Threshold is achieved, the remainder to any Affiliated Manager) due be disbursed to Lender and payable by Borrowers during the succeeding month, as set forth deposited in the Approved Annual Budget, Debt Service Reserve Account to be held and applied as additional Debt Service Reserve Fund; or
(B) payments for Extraordinary Expenses approved by Lender, if any;
(vii) Seventh, as a distribution permitted under applicable law, payment to Mezzanine Lender of an amount equal to from and after the Mezzanine Loan time the Property achieves the Debt Service Payment Amount;
(viii) EighthCoverage Ratio Threshold, so long as no Event of Default or Mezzanine Loan Event of Default has occurred and is continuing, payment the remaining funds shall be disbursed to any Affiliated Manager of its management fees due under the Management Agreement, including any management fees that were not paid to such Affiliated Manager during the existence of any Event of Default or Mezzanine Loan Event of Default which no longer exists;
(ix) Ninth, during a Cash Management Period, all amounts then remaining after payment of items (i) through (viii) (all amounts then remaining after payment of items (i) through (viii) being hereinafter referred to as “Excess Cash”), to the Excess Cash Reserve Fund in accordance with the terms and conditions of Section 7.5 hereof;
(x) Tenth, if no Cash Management Period is continuing, and Lender has received notice from Mezzanine Lender that a Mezzanine Loan Event of Default is continuing, all Excess Cash to the Mezzanine Lender; and
(xi) Lastly, if no Cash Management Period is continuing and Lender has not received notice from Mezzanine Lender that any Mezzanine Loan Event of Default is continuing, all Excess Cash to BorrowersBorrower.
(c) The Subject to Section 2.5.3, the insufficiency of funds on deposit in the Cash Management Account shall not relieve any Borrower of from the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever.
(d) All funds on deposit in the Cash Management Account following the occurrence and during the continuance of an Event of Default may be applied by Lender in such order, order and priority and proportions as Lender shall determine in its sole discretion until all Obligations of a monetary nature have been paid in full, with any amounts remaining being disbursed, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Documents 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. Each Borrower and Lender hereby agree and acknowledge that if (A) all of the Obligations have been paid in full, (B) there are funds remaining in the Reserve Funds, and (C) the Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining funds in the Reserve Funds to Borrowers, but rather shall deliver such funds, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full, to Mezzanine Lender to be held and applied in accordance with the terms of the Mezzanine Loan Documents until the Mezzanine Debt is paid in full, with any balance delivered to Borrowersdetermine.
(e) Transfers of any Borrower’s funds from any of the Reserve Funds or any other source to or for the benefit of Mezzanine Borrower shall constitute distributions to Mezzanine Borrower, and, in each case, must comply with the requirements as to distributions of the Delaware Limited Liability Company Act or similar statute in the state of such Borrower’s organization. The provisions of this Agreement, the Cash Management Agreement and the other Loan Documents shall not create a debtor-creditor relationship between any Borrower and Mezzanine Lender.
Appears in 1 contract
Cash Management Account. (a) Lender During the term of the Loan, Borrower shall establish and maintain a segregated Eligible Account (the “Cash Management Account”) to be held by Xxxxx Fargo Bank, N.A., as agent, Cash Management Bank in trust and for the benefit of Lender, which Lender in accordance with the Cash Management Agreement. The Cash Management Account shall be under the sole dominion and control of Lender. The Cash Management Account shall be entitled “The Royal Bank of Scotland plc, as Lender, pursuant to Loan Agreement dated as of April 1, 2010 — Cash Management Account.” Each Borrower (i) hereby grants to Lender a first priority security interest in the Cash Management Account and all deposits at any time contained therein and the proceeds thereof, and (ii) will take all actions reasonably requested by Lender to maintain in favor of Lender a perfected first priority security interest in the Cash Management Account, including, without limitation, executing and filing UCC-1 Financing Statements and continuations thereof. No Borrower shall in any way alter or modify the Cash Management Account. Lender and Servicer shall have the sole right to make withdrawals from the Cash Management Account and all Account. All costs and expenses for establishing and maintaining the Cash Management Account shall be paid by BorrowersBorrower.
(b) Provided that no Event of Default shall have occurred and be continuingremain outstanding, on each Payment Date all funds on deposit in the Cash Management Account (or the applicable Subaccounts (as defined in the Cash Management Agreement)) shall be applied by Lender to the payment of in the following items in the amounts and order indicatedof priority:
(i) First, payments funds sufficient to Lender in respect of pay the next Monthly Tax Deposit to the Tax and Insurance Escrow Monthly Deposit Account in accordance with the terms and conditions of Section 7.2 6.2 hereof;
(ii) Second, payment funds sufficient to Lender of pay the next Monthly Debt Service Payment Amount, applied first Insurance Deposit to the payment of interest computed at the Interest Rate with the remainder applied to the reduction of the Outstanding Principal Balance;
(iii) Third, payment to Lender in respect of the Replacement Reserve Monthly Deposit Insurance Account in accordance with the terms and conditions of Section 7.3.1 6.3 hereof;
(iii) Third, funds sufficient to pay the fees and expenses of Cash Management Bank then due and payable to Cash Management Bank in accordance with the Cash Management Agreement;
(iv) Fourth, payment funds sufficient to Lender in respect of pay the Rollover Reserve next Monthly Debt Service Payment Amount;
(v) Fifth, funds sufficient to pay the next Monthly Capital Expenditure Deposit to the Capital Expenditure Account in accordance with the terms and conditions of Section 7.4.1 6.4 hereof;
(vvi) FifthSixth, funds sufficient to pay the next Monthly Rollover Deposit to the Rollover Account in accordance with the terms and conditions of Section 6.5 hereof;
(vii) Seventh, funds sufficient to pay any interest accruing at the Default Rate (without duplication with clause (iv) above), late payment to Lender of charges and any other amounts then due and payable under the Loan Documents (other than the Outstanding Principal Balance);
(vi) Sixth, payment to Borrowers in an amount equal to the aggregate of (A) Operating Expenses (exclusive of management fees payable to any Affiliated Manager) due and payable by Borrowers during the succeeding month, as set forth in the Approved Annual Budget, and (B) payments for Extraordinary Expenses approved by Lender, if any;
(vii) Seventh, as a distribution permitted under applicable law, payment to Mezzanine Lender of an amount equal to the Mezzanine Loan Debt Service Payment AmountDocuments;
(viii) Eighth, so long funds sufficient to pay for Operating Expenses for the applicable period incurred in accordance with an Approved Annual Budget (subject to a five percent (5%) variance for any line item in the Approved Annual Budget), provided, that during a Cash Sweep Event Period or a Mezzanine Cash Sweep Event Period, such funds shall only be disbursed up to an amount equal to the lesser of (A) the actual cost of the individual Operating Expense and (B) the budgeted amount of such individual Operating Expense as no Event set forth in such Approved Annual Budget, in the case of Default or Mezzanine Loan Event each of Default has occurred the foregoing clauses (A) and is continuing(B), as set forth in a request for payment submitted by Borrower to any Affiliated Manager of its management fees due under Lender specifying the Management Agreement, including any management fees that were not paid individual Operating Expenses in form and substance reasonably acceptable to such Affiliated Manager during the existence of any Event of Default or Mezzanine Loan Event of Default which no longer existsLender;
(ix) Ninth, funds sufficient to pay for Extraordinary Expenses for the applicable period approved by Lender (or for which Lender’s approval is not required in accordance with Section 4.1.6(h) hereof), if any;
(x) Tenth, subject to Section 2.7.3 below, funds sufficient to pay the next monthly installment of Mezzanine Debt Service shall be remitted to Mezzanine Lender;
(xi) Eleventh, for the period commencing on the Closing Date through the Monthly Payment Date occurring in July, 2016, the remaining amount shall be deposited into the Rollover Account (i) until such time that the aggregate amount so deposited, together with the Initial Rollover Reserve Deposit Amount, the Monthly Rollover Deposits deposited from time to time after the Closing Date and the interest accrued on all such Rollover Funds, shall equal or exceed in the aggregate $18,500,000, or (ii) during a Cash Management Sweep Event Period (regardless of the aggregate amounts that have been deposited pursuant to the preceding clause (i));
(xii) Twelfth, during a Cash Sweep Event Period, all amounts then the remaining after payment of items (i) through (viii) (all amounts then remaining after payment of items (i) through (viii) being hereinafter referred to as “Excess Cash”), to amount shall be deposited into the Excess Cash Reserve Fund Flow Account and held and applied in accordance with the terms and conditions of Section 7.5 6.7 hereof;
(xxiii) TenthLastly, if no subject to Section 2.7.3 below, the remaining amount shall be (A) in the event a Mezzanine Cash Management Sweep Event Period is shall be continuing, and Lender has received notice from Mezzanine Lender that a Mezzanine Loan Event of Default is continuing, all Excess Cash transferred to the Mezzanine Lender; and
Lender to be applied in accordance with the Mezzanine Loan Documents, or (xiB) Lastlyin the event no Mezzanine Cash Sweep Event Period shall be continuing, if no deposited into an account designated by Borrower in accordance with the Cash Management Period is continuing and Lender has not received notice from Mezzanine Lender that any Mezzanine Loan Event of Default is continuing, all Excess Cash to BorrowersAgreement.
(c) The insufficiency Notwithstanding anything to the contrary contained in this Agreement, the Note or the other Loan Documents, during the continuation of funds an Event of Default, Lender may, in addition to any and all other rights and remedies available to Lender, apply any amounts then on deposit in the Cash Management Account shall not relieve any Borrower to the payment of the obligation to make Debt in any paymentsorder, proportion and priority as Lender may determine in its sole and when due pursuant to absolute discretion.
(d) Borrower hereby agrees that Lender may modify the Cash Management Agreement for the purpose of establishing additional sub-accounts in connection with any payments otherwise required under this Agreement Agreement, the Note and the other Loan Documents, which sub-accounts shall at all times be Eligible Accounts (and may be ledger or book entry accounts and not actual accounts). All costs and expenses for establishing and maintaining such obligations accounts shall be separate and independent, and not conditioned on any event or circumstance whatsoever.
(d) All funds on deposit in the Cash Management Account during the continuance of an Event of Default may be applied paid by Lender in such order, priority and proportions as Lender shall determine in its sole discretion until all Obligations of a monetary nature have been paid in full, with any amounts remaining being disbursed, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Documents 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. Each Borrower and Lender hereby agree and acknowledge that if (A) all of the Obligations have been paid in full, (B) there are funds remaining in the Reserve Funds, and (C) the Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining funds in the Reserve Funds to Borrowers, but rather shall deliver such funds, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full, to Mezzanine Lender to be held and applied in accordance with the terms of the Mezzanine Loan Documents until the Mezzanine Debt is paid in full, with any balance delivered to BorrowersBorrower.
(e) Transfers Borrower acknowledges that Lender shall be entitled to rely, without further inquiry or investigation, on any notice from Mezzanine Lender regarding the existence of any Borrower’s funds from any of the Reserve Funds or any other source to or for the benefit of a Mezzanine Borrower shall constitute distributions to Mezzanine Borrower, and, in each case, must comply with the requirements as to distributions of the Delaware Limited Liability Company Act or similar statute in the state of such Borrower’s organization. The provisions of this Agreement, the Cash Management Agreement and the other Loan Documents shall not create a debtor-creditor relationship between any Borrower and Mezzanine LenderSweep Event Period.
Appears in 1 contract
Samples: Loan Agreement (KBS Strategic Opportunity REIT, Inc.)
Cash Management Account. (a) Lender During the term of the Loan, Borrower shall establish and maintain a segregated Eligible Account (the “Cash Management Account”) to be held by Xxxxx Fargo Bank, N.A., as agent, Cash Management Bank in trust and for the benefit of Lender, which Lender in accordance with the Cash Management Agreement. The Cash Management Account shall be under the sole dominion and control of Lender. The Cash Management Account shall be entitled “The Royal Bank of Scotland plc, as Lender, pursuant to Loan Agreement dated as of April 1, 2010 — Cash Management Account.” Each Borrower (i) hereby grants to Lender a first priority security interest in the Cash Management Account and all deposits at any time contained therein and the proceeds thereof, and (ii) will take all actions reasonably requested by Lender to maintain in favor of Lender a perfected first priority security interest in the Cash Management Account, including, without limitation, executing and filing UCC-1 Financing Statements and continuations thereof. No Borrower shall in any way alter or modify the Cash Management Account. Lender and Servicer shall have the sole right to make withdrawals from the Cash Management Account and all Account. All costs and expenses for establishing and maintaining the Cash Management Account shall be paid by BorrowersBorrower.
(b) Provided that no Event of Default shall have occurred and be continuingremain outstanding, on each Payment Date all funds on deposit in the Cash Management Account shall be applied by Lender to the payment of in the following items in the amounts and order indicatedof priority:
(i) First, payments funds sufficient to Lender in respect of pay the Tax and Insurance Escrow Monthly Deposit next monthly deposit to the Ground Rent Funds in accordance with the terms and conditions of Section 7.2 6.6 hereof;
(ii) Second, payment funds sufficient to Lender of pay the Monthly Debt Service Payment Amount, applied first next monthly deposit to the payment of interest computed at the Interest Rate with the remainder applied to the reduction of the Outstanding Principal Balance;
(iii) Third, payment to Lender in respect of the Replacement Reserve Monthly Deposit Tax Funds in accordance with the terms and conditions of Section 7.3.1 6.2 hereof;
(iii) Third, intentionally omitted;
(iv) Fourth, funds sufficient to pay the fees and expenses of Cash Management Bank then due and payable to Cash Management Bank in accordance with the Cash Management Agreement;
(v) Fifth, funds sufficient to pay for Operating Expenses for the applicable period incurred in accordance with an Approved Annual Budget and as set forth in a request for payment submitted by Borrower to Lender specifying the individual Operating Expenses in respect of form and substance reasonably acceptable to Lender;
(vi) Sixth, funds sufficient to pay the Rollover Reserve Monthly Deposit next monthly Debt Service payment pursuant to Section 2.3.1 hereof;
(vii) Seventh, funds sufficient to pay the next monthly deposit to the Capital Expenditure Funds in accordance with the terms and conditions of Section 7.4.1 6.4 hereof;
(viii) Eighth, funds sufficient to pay any interest accruing at the Default Rate (without duplication with clause (v) Fifthabove), late payment to Lender of charges and any other amounts then due and payable under the Loan Documents (other than the Outstanding Principal Balance)Documents;
(viix) SixthNinth, payment funds sufficient to Borrowers in an amount equal to the aggregate of (A) Operating Expenses (exclusive of management fees payable to any Affiliated Manager) due and payable by Borrowers during the succeeding month, as set forth in the Approved Annual Budget, and (B) payments pay for Extraordinary Expenses for the applicable period approved by Lender, if any;
(viix) Seventh, as a distribution permitted under applicable law, payment to Mezzanine Lender of an amount equal to the Mezzanine Loan Debt Service Payment Amount;
(viii) Eighth, so long as no Event of Default or Mezzanine Loan Event of Default has occurred and is continuing, payment to any Affiliated Manager of its management fees due under the Management Agreement, including any management fees that were not paid to such Affiliated Manager during the existence of any Event of Default or Mezzanine Loan Event of Default which no longer exists;
(ix) NinthTenth, during a Cash Management Sweep Event Period, all amounts then the remaining after payment of items amount (i) through (viii) (all amounts then remaining after payment of items (i) through (viii) being hereinafter referred to as the “Excess CashCash Flow”), to ) shall be deposited into the Excess Cash Reserve Fund Flow Account and held and applied in accordance with the terms and conditions of Section 7.5 Sections 6.10 and 6.11 hereof;
(x) Tenth, if no Cash Management Period is continuing, and Lender has received notice from Mezzanine Lender that a Mezzanine Loan Event of Default is continuing, all Excess Cash to the Mezzanine Lender; and
(xi) Lastly, if no the remaining amount shall be deposited into an account controlled by Borrower as designated by Borrower in accordance with the Cash Management Period is continuing and Lender has not received notice from Mezzanine Lender that any Mezzanine Loan Event of Default is continuing, all Excess Cash to BorrowersAgreement.
(c) The insufficiency Notwithstanding anything to the contrary contained in this Agreement, the Note or the other Loan Documents, upon the occurrence and during the continuation of funds an Event of Default, Lender may, in addition to any and all other rights and remedies available to Lender, apply any amounts then on deposit in the Cash Management Account shall not relieve any Borrower to the payment of the obligation to make Debt in any paymentsorder, proportion and priority as Lender may determine in its sole and when due pursuant to absolute discretion.
(d) Borrower hereby agrees that Lender may modify the Cash Management Agreement for the purpose of establishing additional sub-accounts in connection with any payments otherwise required under this Agreement Agreement, the Note and the other Loan Documents, which sub-accounts shall at all times be Eligible Accounts (and may be ledger or book entry accounts and not actual accounts). All costs and expenses for establishing and maintaining such obligations accounts shall be separate and independent, and not conditioned on any event or circumstance whatsoeverpaid by Borrower.
(d) All funds on deposit in the Cash Management Account during the continuance of an Event of Default may be applied by Lender in such order, priority and proportions as Lender shall determine in its sole discretion until all Obligations of a monetary nature have been paid in full, with any amounts remaining being disbursed, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Documents 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. Each Borrower and Lender hereby agree and acknowledge that if (A) all of the Obligations have been paid in full, (B) there are funds remaining in the Reserve Funds, and (C) the Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining funds in the Reserve Funds to Borrowers, but rather shall deliver such funds, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full, to Mezzanine Lender to be held and applied in accordance with the terms of the Mezzanine Loan Documents until the Mezzanine Debt is paid in full, with any balance delivered to Borrowers.
(e) Transfers of any Borrower’s funds from any of the Reserve Funds or any other source to or for the benefit of Mezzanine Borrower shall constitute distributions to Mezzanine Borrower, and, in each case, must comply with the requirements as to distributions of the Delaware Limited Liability Company Act or similar statute in the state of such Borrower’s organization. The provisions of this Agreement, the Cash Management Agreement and the other Loan Documents shall not create a debtor-creditor relationship between any Borrower and Mezzanine Lender.
Appears in 1 contract
Cash Management Account. (a) Lender During the term of the Loan, Borrower and Operating Lessee shall establish and maintain a segregated Eligible Account (the “Cash Management Account”) to be held by Xxxxx Fargo Bank, N.A., as agent, Cash Management Bank in trust and for the benefit of Lender, which Lender in accordance with the Cash Management Agreement. The Cash Management Account shall be under the sole dominion and control of Lender. The Cash Management Account shall be entitled “The Royal Bank of Scotland plc, as Lender, pursuant to Loan Agreement dated as of April 1, 2010 — Cash Management Account.” Each Borrower (i) hereby grants to Lender a first priority security interest in the Cash Management Account and all deposits at any time contained therein and the proceeds thereof, and (ii) will take all actions reasonably requested by Lender to maintain in favor of Lender a perfected first priority security interest in the Cash Management Account, including, without limitation, executing and filing UCC-1 Financing Statements and continuations thereof. No Borrower shall in any way alter or modify the Cash Management Account. Lender and Servicer shall have the sole right to make withdrawals from the Cash Management Account and all Account. All costs and expenses for establishing and maintaining the Cash Management Account shall be paid by BorrowersBorrower.
(b) Provided that no Event of Default shall have occurred and be continuingremain outstanding, on each Payment Date Business Day during a Cash Management Trigger Event Period, all funds on deposit in the Cash Management Account shall be applied by Lender to the payment of in the following items in the amounts and order indicatedof priority:
(i) First, payments funds sufficient to Lender in respect of pay the next Monthly Tax Deposit to the Tax and Insurance Escrow Monthly Deposit Account in accordance with the terms and conditions of Section 7.2 6.2 hereof;
(ii) Second, payment funds sufficient to Lender of pay the next Monthly Debt Service Payment Amount, applied first Insurance Deposit to the payment of interest computed at the Interest Rate with the remainder applied to the reduction of the Outstanding Principal Balance;
(iii) Third, payment to Lender in respect of the Replacement Reserve Monthly Deposit Insurance Account in accordance with the terms and conditions of Section 7.3.1 6.3 hereof;
(iii) Third, funds sufficient to pay the fees and expenses of Cash Management Bank then due and payable to Cash Management Bank in accordance with the Cash Management Agreement;
(iv) Fourth, funds sufficient to pay the next monthly Debt Service payment pursuant to Lender in respect of Section 2.3.1 hereof;
(v) Fifth, funds sufficient to pay the Rollover Reserve next Monthly Capital Expenditure Deposit to the Capital Expenditure Account in accordance with the terms and conditions of Section 7.4.1 6.4 hereof;
(vvi) FifthSixth, funds sufficient to pay any interest accruing at the Default Rate (without duplication with clause (iv) above), late payment to Lender of charges and any other amounts then due and payable under the Loan Documents (other than the Outstanding Principal Balance);
(vi) Sixth, payment to Borrowers in an amount equal to the aggregate of (A) Operating Expenses (exclusive of management fees payable to any Affiliated Manager) due and payable by Borrowers during the succeeding month, as set forth in the Approved Annual Budget, and (B) payments for Extraordinary Expenses approved by Lender, if anyDocuments;
(vii) Seventh, funds sufficient to pay for Operating Expenses for the applicable period incurred in accordance with an Approved Annual Budget and as set forth in a distribution permitted under applicable law, request for payment submitted by Borrower to Mezzanine Lender of an amount equal specifying the individual Operating Expenses in form and substance reasonably acceptable to the Mezzanine Loan Debt Service Payment AmountLender;
(viii) Eighth, so long as no Event of Default or Mezzanine Loan Event of Default has occurred and funds sufficient to pay for Extraordinary Expenses for the applicable period, to the extent approved by Lender if Lender’s approval is continuingrequired hereunder, payment to any Affiliated Manager of its management fees due under the Management Agreement, including any management fees that were not paid to such Affiliated Manager during the existence of any Event of Default or Mezzanine Loan Event of Default which no longer existsif any;
(ix) Ninth, subject to Section 2.7.3 below, funds sufficient to pay the next monthly installment of Mezzanine Debt Service and payments of other amounts due and payable under the terms of the Mezzanine Loan (other than the principal amount due on maturity or earlier acceleration thereof) shall be remitted to Mezzanine Lender;
(x) Tenth, during a Cash Management PIP Trigger Event Period, all amounts then , the remaining after payment of items (i) through (viii) (all amounts then remaining after payment of items (i) through (viii) being hereinafter referred to as “Excess Cash”), to amount shall be deposited into the Excess Cash Reserve Fund PIP Account and held and applied in accordance with the terms and conditions of Section 7.5 Sections 6.6 hereof, until the funds in such PIP Account equal the aggregate of all Individual Property PIP Funds Caps then applicable;
(x) Tenth, if no Cash Management Period is continuing, and Lender has received notice from Mezzanine Lender that a Mezzanine Loan Event of Default is continuing, all Excess Cash to the Mezzanine Lender; and
(xi) LastlyEleventh, if no during a Cash Management Period is continuing and Lender has not received notice from Mezzanine Lender that any Mezzanine Loan Sweep Event of Default is continuingPeriod, all the remaining amount (the “Excess Cash to Borrowers.
(cFlow”) The insufficiency of funds on deposit in the Cash Management Account shall not relieve any Borrower of the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate deposited into the Excess Cash Flow Account and independent, and not conditioned on any event or circumstance whatsoever.
(d) All funds on deposit in the Cash Management Account during the continuance of an Event of Default may be applied by Lender in such order, priority and proportions as Lender shall determine in its sole discretion until all Obligations of a monetary nature have been paid in full, with any amounts remaining being disbursed, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Documents 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. Each Borrower and Lender hereby agree and acknowledge that if (A) all of the Obligations have been paid in full, (B) there are funds remaining in the Reserve Funds, and (C) the Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining funds in the Reserve Funds to Borrowers, but rather shall deliver such funds, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full, to Mezzanine Lender to be held and applied in accordance with the terms and conditions of Sections 6.7 and 6.8 hereof; and
(xii) Lastly, the Mezzanine Loan Documents until remaining amount shall be deposited into an account designated by Borrower in accordance with the Mezzanine Debt is paid in full, with any balance delivered to BorrowersCash Management Agreement.
(ec) Transfers of any Borrower’s funds from any of Notwithstanding anything to the Reserve Funds or any other source to or for the benefit of Mezzanine Borrower shall constitute distributions to Mezzanine Borrower, and, contrary contained in each case, must comply with the requirements as to distributions of the Delaware Limited Liability Company Act or similar statute in the state of such Borrower’s organization. The provisions of this Agreement, the Note or the other Loan Documents, upon the occurrence and during the continuance of an Event of Default, Lender may, in addition to any and all other rights and remedies available to Lender, apply any amounts then on deposit in the Cash Management Account to the payment of the Debt in any order, proportion and priority as Lender may determine in its sole and absolute discretion.
(d) Borrower hereby agrees that Lender may modify the Cash Management Agreement for the purpose of establishing additional sub-accounts in connection with any payments otherwise required under this Agreement, the Note and the other Loan Documents Documents, which sub-accounts shall at all times be Eligible Accounts (and may be ledger or book entry accounts and not create a debtor-creditor relationship between any Borrower actual accounts). All costs and Mezzanine Lenderexpenses for establishing and maintaining such accounts shall be paid by Borrower.
Appears in 1 contract
Cash Management Account. (a) Lender Upon the first occurrence of a Cash Management Trigger Event Period, Borrower shall establish and maintain a segregated Eligible Account account (the “Cash Management Account”) to be held by Xxxxx Fargo a bank selected by Lender (a “Cash Management Bank, N.A., as agent, ”) in trust and for the benefit of LenderLender in accordance with an agreement among Borrower, which Lender and Cash Management Bank, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time (the “Cash Management Agreement”). The Cash Management Account shall be under the sole dominion and control of Lender. The Cash Management Account shall be entitled “The Royal Bank of Scotland plc, as Lender, pursuant to Loan Agreement dated as of April 1, 2010 — Cash Management Account.” Each Borrower (i) hereby grants to Lender a first priority security interest in the Cash Management Account and all deposits at any time contained therein and the proceeds thereof, and (ii) will take all actions reasonably requested by Lender to maintain in favor of Lender a perfected first priority security interest in the Cash Management Account, including, without limitation, executing and filing UCC-1 Financing Statements and continuations thereof. No Borrower shall in any way alter or modify the Cash Management Account. Lender and Servicer its servicer shall have the sole right to make withdrawals from the Cash Management Account and all in accordance with the Cash Management Agreement. All costs and expenses for establishing and maintaining the Cash Management Account shall be paid by BorrowersBorrower.
(b) Provided no On each Business Day during a Cash Management Trigger Event of Default shall have occurred and be continuingPeriod, on each Payment Date all funds on deposit in the Cash Management Account shall be applied by Lender to the payment of in the following items in the amounts and order indicatedof priority:
(i) First, payments if required by Lender, funds sufficient to Lender in respect of pay the Tax and Insurance Escrow Monthly Deposit next monthly deposit in accordance with the terms and conditions of Section 7.2 hereof2.8 hereof for Impositions and insurance premiums;
(ii) Second, payment funds sufficient to Lender pay the fees and expenses of the Monthly Debt Service Payment Amount, applied first Cash Management Bank and Deposit Bank then due and payable to the payment of interest computed at the Interest Rate Cash Management Bank and Deposit Bank in accordance with the remainder applied to the reduction of the Outstanding Principal BalanceCash Management Agreement and Deposit Account Agreement;
(iii) Third, payment funds sufficient to Lender in respect of pay the Replacement Reserve next Monthly Deposit Payment Amount;
(iv) Fourth, if required by Lender, funds sufficient to pay the next monthly deposit to the Capital Expenditure Reserves in accordance with the terms and conditions of Section 7.3.1 hereof;
(iv) Fourth, payment to Lender in respect of the Rollover Reserve Monthly Deposit in accordance with the terms and conditions of Section 7.4.1 2.16 hereof;
(v) Fifth, funds sufficient to pay any interest accruing at the Default Rate, late payment to Lender of charges and any other amounts then due and payable under the Loan Documents (other than the Outstanding Principal Balance);Documents
(vi) Sixth, payment funds sufficient to Borrowers pay for monthly Property operating expenses incurred in an amount equal to accordance with the aggregate of Annual Budget for the Property as approved by Lender or as certified by the Manager (A) Operating Expenses (exclusive of management fees payable to any Affiliated Manager) due and payable reasonably approved by Borrowers during the succeeding monthLender), and as set forth in a request for payment submitted by Borrower to Lender specifying the Approved Annual Budget, individual operating expenses in form and (B) payments for Extraordinary Expenses approved by substance reasonably acceptable to Lender, if any;; and
(vii) Seventh, the remaining amount (the “Excess Cash Flow”) shall be deposited into an account held by Lender as a distribution permitted under applicable law, payment to Mezzanine Lender additional security for the Obligations. Upon the termination of an amount equal to the Mezzanine Loan Debt Service Payment Amount;
(viii) Eighth, so long as no Event of Default or Mezzanine Loan Event of Default has occurred and is continuing, payment to any Affiliated Manager of its management fees due under the Management Agreement, including any management fees that were not paid to such Affiliated Manager during the existence of any Event of Default or Mezzanine Loan Event of Default which no longer exists;
(ix) Ninth, during a Cash Management Trigger Event Period, all amounts then remaining after payment of items (i) through (viii) (all amounts then remaining after payment of items (i) through (viii) being hereinafter referred to as “Excess Cash”), to Lender shall release the Excess Cash Reserve Fund in accordance with the terms and conditions of Section 7.5 hereof;
(x) Tenth, if no Cash Management Period is continuing, and Lender has received notice from Mezzanine Lender that a Mezzanine Loan Event of Default is continuing, all Excess Cash Flow to the Mezzanine Lender; and
(xi) Lastly, if no Cash Management Period is continuing and Lender has not received notice from Mezzanine Lender that any Mezzanine Loan Event of Default is continuing, all Excess Cash to BorrowersBorrower.
(c) The insufficiency Notwithstanding anything to the contrary contained in this Security Instrument, the Note or the other Loan Documents, upon the occurrence and during the continuation of funds an Event of Default, Lender may, in addition to any and all other rights and remedies available to Lender, apply any amounts then on deposit in the Cash Management Account shall not relieve any Borrower to the payment of the obligation to make Obligations in any paymentsorder, proportion and priority as Lender may determine in its sole and when due pursuant to absolute discretion.
(d) Borrower hereby agrees that Lender may modify the Cash Management Agreement for the purpose of establishing additional sub-accounts in connection with any payments otherwise required under this Agreement Security Instrument, the Note and the other Loan Documents, which sub-accounts may be ledger or book entry accounts and not actual accounts. All costs and expenses for establishing and maintaining such obligations accounts shall be separate and independent, and not conditioned on any event or circumstance whatsoeverpaid by Borrower.
(d) All funds on deposit in the Cash Management Account during the continuance of an Event of Default may be applied by Lender in such order, priority and proportions as Lender shall determine in its sole discretion until all Obligations of a monetary nature have been paid in full, with any amounts remaining being disbursed, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Documents 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. Each Borrower and Lender hereby agree and acknowledge that if (A) all of the Obligations have been paid in full, (B) there are funds remaining in the Reserve Funds, and (C) the Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining funds in the Reserve Funds to Borrowers, but rather shall deliver such funds, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full, to Mezzanine Lender to be held and applied in accordance with the terms of the Mezzanine Loan Documents until the Mezzanine Debt is paid in full, with any balance delivered to Borrowers.
(e) Transfers of any Borrower’s funds from any of the Reserve Funds or any other source to or for the benefit of Mezzanine Borrower shall constitute distributions to Mezzanine Borrower, and, in each case, must comply with the requirements as to distributions of the Delaware Limited Liability Company Act or similar statute in the state of such Borrower’s organization. The provisions of this Agreement, the Cash Management Agreement and the other Loan Documents shall not create a debtor-creditor relationship between any Borrower and Mezzanine Lender.
Appears in 1 contract
Cash Management Account. (a) Lender and/or Servicer shall establish and maintain a segregated Eligible Account (the “Cash Management Account”) to be held by Xxxxx Fargo Bank, N.A., as agent, Servicer in trust for the benefit of Lender, which Cash Management Account shall be under the sole dominion and control of Lender. The Cash Management Account shall be entitled “The Royal Bank North Tower, LLC, for the benefit of Scotland plcXxxxxx XXX Inc. and Greenwich Capital Financial Products, Inc., their successors and assigns, as Lender, pursuant to Loan Agreement dated as of April 1__, 2010 — 2007 – Cash Management Account.” Each Borrower (i) hereby grants to Lender a first priority security interest in the Cash Management Account and all deposits at any time contained therein and the proceeds thereof, and (ii) will take all actions reasonably requested by Lender necessary to maintain in favor of Lender a perfected first priority security interest in the Cash Management Account, including, without limitation, including executing and filing UCC-1 Financing Statements and continuations thereof. No Borrower shall will not in any way alter or modify the Cash Management Account, will not further pledge, assign, encumber or grant a security interest in its interest in the Cash Management Account and will notify Lender of the account number thereof. Lender and Servicer shall have the sole right to make withdrawals from the Cash Management Account and all costs and expenses for establishing and maintaining the Cash Management Account shall be paid by BorrowersBorrower.
(b) Provided no Event of Default shall have occurred and be continuing, on each Payment Date (or, if such Payment Date is not a Business Day, on the immediately preceding Business Day) all funds on deposit in the Cash Management Account shall be applied by Lender to the payment of the following items in the order indicated:
(i) First, payments payment to Lender in respect of an amount sufficient to pay the monthly deposit to the Tax and Insurance Escrow Monthly Deposit Funds in accordance with the terms and conditions of Section 7.2 hereof;
(ii) Second, payment to Lender of the Monthly Debt Service Interest Payment Amount, applied first to the payment of interest computed at the Interest Rate with the remainder applied to the reduction of the Outstanding Principal Balancedue on such Payment Date;
(iii) Third, payment payments to Lender in respect of the Replacement Reserve Monthly Deposit Funds in accordance with the terms and conditions of Section 7.3.1 7.4 hereof;
(iv) Fourth, payment to Lender in respect of the Rollover Reserve Monthly Deposit in accordance with the terms and conditions (or reimbursement of Section 7.4.1 hereof;
(vLender for) Fifth, payment to Lender of any other amounts then due and payable under the Loan Documents (other than including any “protective advances” made by Lender in respect of the Loan, but excluding any application on account of the Outstanding Principal Balance);
(v) Fifth, payments for monthly Cash Expenses and Capital Expenditures incurred in accordance with the related Approved Annual Budget pursuant to a written request for payment submitted by Borrower to Lender specifying the individual Cash Expenses and Capital Expenditures in a form acceptable to Lender;
(vi) Sixth, payment to Borrowers in an amount equal Borrower of amounts necessary to the aggregate of (A) Operating Expenses (exclusive of management fees payable to any Affiliated Manager) due and payable by Borrowers during the succeeding month, as set forth in the Approved Annual Budget, and (B) payments for pay Extraordinary Expenses reasonably approved by Lender, if any;
(vii) Seventh, to Servicer, if the Mezzanine Loan is then outstanding, for transfer to the Mezzanine Cash Management Account, as a distribution permitted under applicable law, the amount indicated in the then most recent written payment notice letter delivered pursuant to the Intercreditor Agreement by Mezzanine Lender to Lender at least five (5) days prior to such Payment Date, which payment notice sets forth the amounts then currently payable (as of an amount equal to such Payment Date) under the Mezzanine Loan Debt Service Payment Amount;Documents to be applied in accordance with the terms of the Mezzanine Loan Documents; and
(viii) EighthLastly, so long as provided no Event of Default or Mezzanine Loan Event of Default has occurred and is continuing, payment any remaining amount to any Affiliated Manager of its management fees due under the Management Agreement, including any management fees that were not paid to such Affiliated Manager during the existence of any Event of Default or Mezzanine Loan Event of Default which no longer exists;
(ix) Ninth, during a Cash Management Period, all amounts then remaining after payment of items (i) through (viii) (all amounts then remaining after payment of items (i) through (viii) being hereinafter referred to as “Excess Cash”), to the Excess Cash Reserve Fund in accordance with the terms and conditions of Section 7.5 hereof;
(x) Tenth, if no Cash Management Period is continuing, and Lender has received notice from Mezzanine Lender that a Mezzanine Loan Event of Default is continuing, all Excess Cash to the Mezzanine Lender; and
(xi) Lastly, if no Cash Management Period is continuing and Lender has not received notice from Mezzanine Lender that any Mezzanine Loan Event of Default is continuing, all Excess Cash to BorrowersBorrower.
(c) The insufficiency of funds on deposit in the Cash Management Account shall not relieve any Borrower of the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever.
(d) All funds on deposit in the Cash Management Account following the occurrence and during the continuance of an Event of Default may be applied by Lender in such order, order and priority and proportions as Lender shall determine in its sole discretion until all Obligations of a monetary nature have been paid in full, with any amounts remaining being disbursed, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Documents 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. Each Borrower and Lender hereby agree and acknowledge that if (A) all of the Obligations have been paid in full, (B) there are funds remaining in the Reserve Funds, and (C) the Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining funds in the Reserve Funds to Borrowers, but rather shall deliver such funds, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full, to Mezzanine Lender to be held and applied in accordance with the terms of the Mezzanine Loan Documents until the Mezzanine Debt is paid in full, with any balance delivered to Borrowersdetermine.
(e) Transfers of any Borrower’s funds from any of the Reserve Funds or any other source to or for the benefit of Mezzanine Borrower shall constitute distributions to Mezzanine Borrower, and, in each case, must comply with the requirements as to distributions of the Delaware Limited Liability Company Act or similar statute in the state of such Borrower’s organization. The provisions of this Agreement, the Cash Management Agreement and the other Loan Documents shall not create a debtor-creditor relationship between any Borrower and Mezzanine Lender.
Appears in 1 contract
Cash Management Account. (a) Lender shall establish and maintain a segregated Eligible Account (the “Cash Management Account”) to be held by Xxxxx Fargo Bank, N.A., as agent, in trust for the benefit of Lender, which Cash Management Account shall be under the sole dominion and control of Lender. The Cash Management Account shall be entitled “The Royal Barclays Bank of Scotland plcPLC, as Lender, pursuant to Loan Agreement dated as of April 1March 11, 2010 — 2015 – Cash Management Account.” Each Borrower (i) hereby grants to Lender a first priority security interest in will also establish subaccounts of the Cash Management Account which shall at all times be Eligible Accounts (and all deposits at may be ledger or book entry accounts and not actual accounts) (such subaccounts are referred to here as “Subaccounts”). The Cash Management Account and any time contained therein Subaccount will be under the sole control and the proceeds thereof, and (ii) will take all actions reasonably requested by Lender to maintain in favor dominion of Lender a perfected first priority security interest in the Cash Management Account, including, without limitation, executing and filing UCC-1 Financing Statements and continuations thereof. No Borrower shall in not have any way alter or modify the Cash Management Accountright of withdrawal therefrom. Lender and Servicer shall have the sole right to make withdrawals from the Cash Management Account and all costs and expenses ‑36 ‑ for establishing and maintaining the Cash Management Account shall be paid by BorrowersBorrower. The Cash Management Account and the Subaccounts shall be interest bearing accounts.
(b) Provided no Event of Default shall have occurred and be continuing, on April 6, 2015 and on each Payment Date Date, all funds on deposit in the Cash Management Account shall be applied by Lender to the payment of the following items in the order indicated:
(i) First, to make the required payments of Development Rent Funds into the Development Rent Subaccount as required under Section 7.1;
(ii) Second, payments to Lender in respect of the Monthly Borrower Insurance Payment and Monthly Tax and Insurance Escrow Monthly Deposit Payment in accordance with the terms and conditions of Section 7.2 hereof;
(iiiii) SecondThird, payment to Lender in respect of the Condominium Common Charge Funds in accordance with the terms and conditions of Section 7.7.1 hereof;
(iv) Fourth, payment to Lender of the Monthly Debt Service Payment Amount, applied first to the payment of interest computed at the Interest Rate with the remainder applied to the reduction of the Outstanding Principal Balance;
(iiiv) ThirdFifth, payment to Lender in respect of the Replacement Reserve Monthly Deposit in accordance with the terms and conditions of Section 7.3.1 hereof;
(ivvi) Fourth, payment to Lender in respect of the Rollover Reserve Monthly Deposit in accordance with the terms and conditions of Section 7.4.1 hereof;
(v) FifthSixth, payment to Lender of any other amounts then due and payable under the Loan Documents (other than the Outstanding Principal BalanceBalance and any Accrued Interest);
(vivii) SixthSeventh, payment to Borrowers Borrower in an amount equal to the aggregate of (A) Operating Expenses (exclusive of management fees payable to any Affiliated Manager) due and payable by Borrowers Borrower during the succeeding month, as set forth in the Approved Annual BudgetBudget (the “Approved Operating Expenses”), and (B) payments for Extraordinary Expenses approved by Lender, if any;
(vii) Seventh, as a distribution permitted under applicable law, payment to Mezzanine Lender of an amount equal to the Mezzanine Loan Debt Service Payment Amount;
(viii) Eighth, so long as no Event of Default or Mezzanine Loan Event of Default has occurred and is continuing, payment to any Affiliated Manager of its management fees due under the Management Agreement, including any management fees that were not paid to such Affiliated Manager during the existence of any Event of Default or Mezzanine Loan Event of Default which no longer exists; provided, however, that on and after the Anticipated Repayment Date, payment to any Affiliated Manager of its management fees due under the Management Agreement shall not exceed three percent (3%) of Gross Income from Operations;
(ix) Ninth, on and after the Anticipated Repayment Date, payments to Lender in reduction of the Outstanding Principal Balance;
(x) Tenth, on and after the Anticipated Repayment Date, payments to Lender for outstanding Accrued Interest; ‑37 ‑
(xi) Eleventh, during a any Excess Cash Management Sweep Period, payment to Lender of the Rollover Reserve Monthly Deposit in accordance with the conditions of Section 7.4.1 hereof;
(xii) Twelfth, during any Excess Cash Sweep Period, all amounts then remaining after payment of items (i) through (viiixi) (all amounts then remaining after payment of items (i) through (viiixi) being hereinafter referred to as “Excess Cash”), to the Excess Cash Reserve Fund in accordance with the terms and conditions of Section 7.5 hereof;; and
(xxiii) TenthLastly, if no Excess Cash Management Sweep Period is continuing, and Lender has received notice from Mezzanine Lender that a Mezzanine Loan Event of Default is continuing, all Excess Cash to the Mezzanine Lender; and
(xi) Lastly, if no Cash Management Period is continuing and Lender has not received notice from Mezzanine Lender that any Mezzanine Loan Event of Default is continuing, all Excess Cash to BorrowersBorrower.
(c) The insufficiency of funds on deposit in the Cash Management Account shall not relieve any Borrower of the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever.
(d) All funds on deposit in the Cash Management Account during the continuance of an Event of Default may be applied by Lender in such order, priority and proportions as Lender shall determine in its sole discretion until all Obligations of a monetary nature have been paid in full, with any amounts remaining being disbursed, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Documents 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. Each Borrower and Lender hereby agree and acknowledge that if (A) all of the Obligations have been paid in full, (B) there are funds remaining in the Reserve Funds, and (C) the Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining funds in the Reserve Funds to Borrowers, but rather shall deliver such funds, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full, to Mezzanine Lender to be held and applied in accordance with the terms of the Mezzanine Loan Documents until the Mezzanine Debt is paid in full, with any balance delivered to BorrowersBorrower.
(e) Transfers of any Borrower’s funds from any of the Reserve Funds or any other source to or for the benefit of Mezzanine Borrower shall constitute distributions to Mezzanine Borrower, and, in each case, must comply with the requirements as to distributions of the Delaware Limited Liability Company Act or similar statute in the state of such Borrower’s organization. The provisions of this Agreement, the Cash Management Agreement and the other Loan Documents shall not create a debtor-creditor relationship between any Borrower and Mezzanine Lender.
Appears in 1 contract
Samples: Loan Agreement (Cole Office & Industrial REIT (CCIT II), Inc.)
Cash Management Account. (a) Lender or its Servicer shall establish and maintain a segregated Eligible Account (the “Cash Management Account”) to be held by Xxxxx Fargo Bank, N.A., as agent, Servicer in trust for the benefit of Lender, which Cash Management Account shall be under the sole dominion and control of Lender. The Cash Management Account shall be entitled “The Royal Bank BlueLinx Holdings, Inc. for the benefit of Scotland plcColumn Financial, as Lender, pursuant to Loan Agreement dated as of April 1, 2010 — Inc. - Cash Management Account.” Each Borrower shall deliver written instructions to all tenants under Leases to deliver all Rents payable thereunder directly to the Cash Management Account. Borrower shall deposit, or cause to be deposited, all amounts received by, or on behalf of, Borrower constituting Rents into the Cash Management Account within one (1) Business Day after receipt thereof. Borrower (i) hereby grants to Lender a first priority security interest in the Cash Management Account and all deposits at any time contained therein and the proceeds thereof, thereof and (ii) will take all actions reasonably requested by Lender necessary to maintain in favor of Lender a perfected first priority security interest in the Cash Management Account, including, without limitation, executing and filing UCC-1 Financing Statements and continuations thereof. No Borrower shall will not in any way alter or modify the Cash Management AccountAccount and will notify Lender of the account number thereof. Lender and Servicer shall have the sole right to make withdrawals from the Cash Management Account and all costs and expenses for establishing and maintaining the Cash Management Account shall be paid by BorrowersBorrower.
(b) Provided no Event of Default shall have occurred and be continuing, on each Payment Date (or, if such Payment Date is not a Business Day, on the immediately preceding Business Day) all funds on deposit in the Cash Management Account shall be applied by Lender to the payment of the following items in the order indicated:
(i) First, payments to Lender in respect of the Tax and Insurance Escrow Monthly Deposit Fund in accordance with the terms and conditions of Section 7.2 hereof;
(ii) Second, payment to Lender of the Monthly Debt Service Payment Amount, applied first to the payment of interest Amount computed at the Applicable Interest Rate with the remainder applied to the reduction of the Outstanding Principal BalanceRate;
(iii) Third, payment to Lender in respect of the Replacement Reserve Monthly Deposit in accordance with the terms and conditions of Section 7.3.1 7.3 hereof;
(iv) Fourth, payment to Lender in respect of the Rollover Reserve Monthly Deposit in accordance with the terms and conditions of Section 7.4.1 hereof;
(v) Fifth, payment to Lender of any other amounts then due and payable under pursuant to the terms of the Loan Documents (other than the Outstanding Principal Balance);
(vi) Sixth, payment to Borrowers in an amount equal to the aggregate of (A) Operating Expenses (exclusive of management fees payable to any Affiliated Manager) due and payable by Borrowers during the succeeding month, as set forth in the Approved Annual Budget, and (B) payments for Extraordinary Expenses approved by Lender, if any;
(vii) Seventh, as a distribution permitted under applicable law, payment to Mezzanine Lender of an amount equal to the Mezzanine Loan Debt Service Payment Amount;
(viii) Eighth, so long as no Event of Default or Mezzanine Loan Event of Default has occurred and is continuing, payment to any Affiliated Manager of its management fees due under the Management Agreement, including any management fees that were not paid to such Affiliated Manager during the existence of any Event of Default or Mezzanine Loan Event of Default which no longer exists;
(ix) Ninth, during a Cash Management Period, all amounts then remaining after payment of items (i) through (viii) (all amounts then remaining after payment of items (i) through (viii) being hereinafter referred to as “Excess Cash”), to the Excess Cash Reserve Fund in accordance with the terms and conditions of Section 7.5 hereof;
(x) Tenth, if no Cash Management Period is continuing, and Lender has received notice from Mezzanine Lender that a Mezzanine Loan Event of Default is continuing, all Excess Cash to the Mezzanine LenderDocuments; and
(xiv) LastlyLast, if no all amounts remaining in the Cash Management Period is continuing and Lender has not received notice from Mezzanine Lender that any Mezzanine Loan Event of Default is continuing, all Excess Cash Account to BorrowersBorrower.
(c) The insufficiency of funds on deposit in the Cash Management Account shall not relieve any Borrower of the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever.
(d) All funds on deposit in the Cash Management Account during following the continuance occurrence of an Event of Default may be applied by Lender in such order, order and priority and proportions as Lender shall determine in its sole discretion until all Obligations of a monetary nature have been paid in full, with any amounts remaining being disbursed, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Documents 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. Each Borrower and Lender hereby agree and acknowledge that if (A) all of the Obligations have been paid in full, (B) there are funds remaining in the Reserve Funds, and (C) the Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining funds in the Reserve Funds to Borrowers, but rather shall deliver such funds, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full, to Mezzanine Lender to be held and applied in accordance with the terms of the Mezzanine Loan Documents until the Mezzanine Debt is paid in full, with any balance delivered to Borrowersdetermine.
(e) Transfers of any Borrower’s funds from any of the Reserve Funds or any other source to or for the benefit of Mezzanine Borrower shall constitute distributions to Mezzanine Borrower, and, in each case, must comply with the requirements as to distributions of the Delaware Limited Liability Company Act or similar statute in the state of such Borrower’s organization. The provisions of this Agreement, the Cash Management Agreement and the other Loan Documents shall not create a debtor-creditor relationship between any Borrower and Mezzanine Lender.
Appears in 1 contract
Cash Management Account. (a) Upon Lender’s delivery to the Clearing Bank of written notice that a Cash Management Trigger has occurred, all funds on deposit in the Clearing Account shall be swept on a daily basis to Lender or Servicer (on behalf of Lender), and shall establish and maintain a segregated Eligible Account be held by Lender or Servicer (on behalf of Lender) in an escrow account (the “Cash Management Account”) to be held owned and controlled by Xxxxx Fargo Bank, N.A., as agent, in trust for the benefit Lender or Servicer (on behalf of Lender, which Cash Management Account ) (the “Agent”). Lender shall be under the sole dominion and control of Lender. The Cash Management Account shall be entitled “The Royal Bank of Scotland plc, as Lender, pursuant to Loan Agreement dated as of April 1, 2010 — Cash Management Account.” Each Borrower (i) hereby grants to Lender have a first priority security interest in the Cash Management Account and all deposits at any time contained therein and the proceeds thereof, thereof and (ii) will take all actions reasonably requested by Lender necessary to maintain in favor of Lender a perfected first priority security interest in the Cash Management Account, including, without limitation, executing and filing UCC-1 Financing Statements and continuations thereof. No Borrower shall in any way alter or modify the Cash Management Account. Lender and Servicer shall have the sole right to make withdrawals from the Cash Management Account and all costs and expenses for establishing and maintaining the Such Cash Management Account shall bear interest for the benefit of Borrower, and shall, at Lender’s option, be paid by Borrowersan Eligible Account.
(b) Provided Borrower shall be responsible for all fees, including fees charged by Agent, in connection with the Cash Management Account.
(c) Following a Cash Management Trigger, and provided no Event of Default shall have occurred and be continuingthen exist, on each Payment Date (or, if such Payment Date is not a Business Day, on the immediately preceding Business Day) all funds on deposit in the Cash Management Account shall be applied by Lender to the payment of the following items in the order indicated:
(i) First, payments to Lender in respect of the Tax and Insurance Escrow Monthly Deposit Fund in accordance with the terms and conditions of Section 7.2 hereof;
(ii) Second, payment to Lender of the Monthly Debt Service Payment Amount, applied first to the payment of interest computed at the Initial Interest Rate with the remainder applied to the reduction of the Outstanding Principal BalanceRate;
(iii) Third, payment required payments to Lender in respect of the Replacement Reserve Monthly Deposit Fund in accordance with the terms and conditions of Section 7.3.1 hereof;
(iv) Fourth, payment to Lender in respect of the Rollover Reserve Monthly Deposit in accordance with the terms and conditions of Section 7.4.1 hereof;
(v) Fifth, payment to Lender of any other amounts then due and payable under the Loan Documents (other than Accrued Interest);
(v) Fifth, payments for monthly Operating Expenses incurred in accordance with the Outstanding Principal Balance)related Approved Annual Budget pursuant to a written request for payment submitted by Borrower to Lender specifying the individual Operating Expenses in a form acceptable to Lender;
(vi) Sixth, payment to Borrowers in an amount equal to the aggregate of (A) Operating Expenses (exclusive of management fees payable to any Affiliated Manager) due and payable by Borrowers during the succeeding month, as set forth in the Approved Annual Budget, and (B) payments for Extraordinary Expenses approved by Lender, if any, pursuant to a written request for payment submitted by Borrower to Lender specifying the individual Extraordinary Expenses in a form acceptable to Lender;
(vii) Seventh, as a distribution permitted under applicable lawon or after the Anticipated Repayment Date, payment payments to Mezzanine Lender in reduction of an amount equal to the Mezzanine Loan Debt Service Payment Amountoutstanding principal balance of the Loan;
(viii) Eighth, so long as no Event of Default on or Mezzanine Loan Event of Default has occurred and is continuingafter the Anticipated Repayment Date, payment payments to any Affiliated Manager of its management fees due under the Management Agreement, including any management fees that were not paid to such Affiliated Manager during the existence of any Event of Default or Mezzanine Loan Event of Default which no longer exists;Lender for Accrued Interest; and
(ix) NinthLastly, during a payments of all remaining funds in the Cash Management Period, all amounts then remaining Account after payment disbursements of items funds pursuant to clauses (i) through (viii) above (all amounts then remaining after payment of items (i) through (viii) being hereinafter referred to as “Excess Cash”), ) to the Excess Cash Reserve Escrow Fund in accordance with the terms and conditions provisions of Section 7.5 hereof;
(x) Tenth, if no Cash Management Period is continuing, and Lender has received notice from Mezzanine Lender that a Mezzanine Loan Event 7.4 of Default is continuing, all Excess Cash to the Mezzanine Lender; and
(xi) Lastly, if no Cash Management Period is continuing and Lender has not received notice from Mezzanine Lender that any Mezzanine Loan Event of Default is continuing, all Excess Cash to Borrowersthis Agreement.
(cd) The insufficiency of funds on deposit in the Cash Management Account shall not relieve any Borrower of from the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever.
(de) All funds on deposit in the Cash Management Account during following the continuance occurrence of an Event of Default may be applied by Lender in such order, order and priority and proportions as Lender shall determine in its sole discretion until all Obligations of a monetary nature have been paid in full, with any amounts remaining being disbursed, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Documents 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. Each Borrower and Lender hereby agree and acknowledge that if (A) all of the Obligations have been paid in full, (B) there are funds remaining in the Reserve Funds, and (C) the Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining funds in the Reserve Funds to Borrowers, but rather shall deliver such funds, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full, to Mezzanine Lender to be held and applied in accordance with the terms of the Mezzanine Loan Documents until the Mezzanine Debt is paid in full, with any balance delivered to Borrowersdetermine.
(e) Transfers of any Borrower’s funds from any of the Reserve Funds or any other source to or for the benefit of Mezzanine Borrower shall constitute distributions to Mezzanine Borrower, and, in each case, must comply with the requirements as to distributions of the Delaware Limited Liability Company Act or similar statute in the state of such Borrower’s organization. The provisions of this Agreement, the Cash Management Agreement and the other Loan Documents shall not create a debtor-creditor relationship between any Borrower and Mezzanine Lender.
Appears in 1 contract
Cash Management Account. (a) Lender and/or Servicer shall establish and maintain a segregated Eligible Account (the “Cash Management Account”) to be held by Xxxxx Fargo Bank, N.A., as agent, Servicer in trust for the benefit of Lender, which Cash Management Account shall be under the sole dominion and control of Lender. The Cash Management Account shall be entitled “The Royal Bank North Tower, LLC, for the benefit of Scotland plcXxxxxx XXX Inc. and Greenwich Capital Financial Products, Inc., their successors and assigns, as Lender, pursuant to Loan Agreement dated as of April 1__, 2010 — 2007 - Cash Management Account.” Each Borrower (i) hereby grants to Lender a first priority security interest in the Cash Management Account and all deposits at any time contained therein and the proceeds thereof, and (ii) will take all actions reasonably requested by Lender necessary to maintain in favor of Lender a perfected first priority security interest in the Cash Management Account, including, without limitation, including executing and filing UCC-1 Financing Statements and continuations thereof. No Borrower shall will not in any way alter or modify the Cash Management Account, will not further pledge, assign, encumber or grant a security interest in its interest in the Cash Management Account and will notify Lender of the account number thereof. Lender and Servicer shall have the sole right to make withdrawals from the Cash Management Account and all costs and expenses for establishing and maintaining the Cash Management Account shall be paid by BorrowersBorrower.
(b) Provided no Event of Default shall have occurred and be continuing, on each Payment Date (or, if such Payment Date is not a Business Day, on the immediately preceding Business Day) all funds on deposit in the Cash Management Account shall be applied by Lender to the payment of the following items in the order indicated:
(i) First, payments payment to Lender in respect of an amount sufficient to pay the monthly deposit to the Tax and Insurance Escrow Monthly Deposit Funds in accordance with the terms and conditions of Section 7.2 hereof;
(ii) Second, payment to Lender of the Monthly Debt Service Interest Payment Amount, applied first to the payment of interest computed at the Interest Rate with the remainder applied to the reduction of the Outstanding Principal Balancedue on such Payment Date;
(iii) Third, payment payments to Lender in respect of the Replacement Reserve Monthly Deposit Funds in accordance with the terms and conditions of Section 7.3.1 7.4 hereof;
(iv) Fourth, payment to Lender in respect of the Rollover Reserve Monthly Deposit in accordance with the terms and conditions (or reimbursement of Section 7.4.1 hereof;
(vLender for) Fifth, payment to Lender of any other amounts then due and payable under the Loan Documents (other than including any “protective advances” made by Lender in respect of the Loan, but excluding any application on account of the Outstanding Principal Balance);
(v) Fifth, payments for monthly Cash Expenses and Capital Expenditures incurred in accordance with the related Approved Annual Budget pursuant to a written request for payment submitted by Borrower to Lender specifying the individual Cash Expenses and Capital Expenditures in a form acceptable to Lender;
(vi) Sixth, payment to Borrowers in an amount equal Borrower of amounts necessary to the aggregate of (A) Operating Expenses (exclusive of management fees payable to any Affiliated Manager) due and payable by Borrowers during the succeeding month, as set forth in the Approved Annual Budget, and (B) payments for pay Extraordinary Expenses reasonably approved by Lender, if any;
(vii) Seventh, to Servicer, if the Mezzanine Loan is then outstanding, for transfer to the Mezzanine Cash Management Account, as a distribution permitted under applicable law, the amount indicated in the then most recent written payment notice letter delivered pursuant to the Intercreditor Agreement by Mezzanine Lender to Lender at least five (5) days prior to such Payment Date, which payment notice sets forth the amounts then currently payable (as of an amount equal to such Payment Date) under the Mezzanine Loan Debt Service Payment Amount;Documents to be applied in accordance with the terms of the Mezzanine Loan Documents; and
(viii) EighthLastly, so long as provided no Event of Default or Mezzanine Loan Event of Default has occurred and is continuing, payment any remaining amount to any Affiliated Manager of its management fees due under the Management Agreement, including any management fees that were not paid to such Affiliated Manager during the existence of any Event of Default or Mezzanine Loan Event of Default which no longer exists;
(ix) Ninth, during a Cash Management Period, all amounts then remaining after payment of items (i) through (viii) (all amounts then remaining after payment of items (i) through (viii) being hereinafter referred to as “Excess Cash”), to the Excess Cash Reserve Fund in accordance with the terms and conditions of Section 7.5 hereof;
(x) Tenth, if no Cash Management Period is continuing, and Lender has received notice from Mezzanine Lender that a Mezzanine Loan Event of Default is continuing, all Excess Cash to the Mezzanine Lender; and
(xi) Lastly, if no Cash Management Period is continuing and Lender has not received notice from Mezzanine Lender that any Mezzanine Loan Event of Default is continuing, all Excess Cash to BorrowersBorrower.
(c) The insufficiency of funds on deposit in the Cash Management Account shall not relieve any Borrower of the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever.
(d) All funds on deposit in the Cash Management Account following the occurrence and during the continuance of an Event of Default may be applied by Lender in such order, order and priority and proportions as Lender shall determine in its sole discretion until all Obligations of a monetary nature have been paid in full, with any amounts remaining being disbursed, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Documents 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. Each Borrower and Lender hereby agree and acknowledge that if (A) all of the Obligations have been paid in full, (B) there are funds remaining in the Reserve Funds, and (C) the Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining funds in the Reserve Funds to Borrowers, but rather shall deliver such funds, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full, to Mezzanine Lender to be held and applied in accordance with the terms of the Mezzanine Loan Documents until the Mezzanine Debt is paid in full, with any balance delivered to Borrowersdetermine.
(e) Transfers of any Borrower’s funds from any of the Reserve Funds or any other source to or for the benefit of Mezzanine Borrower shall constitute distributions to Mezzanine Borrower, and, in each case, must comply with the requirements as to distributions of the Delaware Limited Liability Company Act or similar statute in the state of such Borrower’s organization. The provisions of this Agreement, the Cash Management Agreement and the other Loan Documents shall not create a debtor-creditor relationship between any Borrower and Mezzanine Lender.
Appears in 1 contract
Cash Management Account. (a) Lender Borrower shall establish and maintain a segregated Eligible Account (the “"Cash Management Account”") to be held by Xxxxx Fargo Bank, N.A., as agent, the Servicer in trust for the benefit of Lender, which Cash Management Account shall be under the sole dominion and control of Lender. The Cash Management Account shall be entitled “The Royal Bank of Scotland plc"ORIX Capital Markets, LLC, as Lenderservicer of Column Financial, pursuant to Loan Agreement dated Inc. as mortgagee of April 1XX Xxxxxx Valley Limited Partnership, 2010 — Cash Management Collateral Account.” Each ". Borrower (i) hereby grants to Lender a first priority security interest in the Cash Management Account and all deposits at any time contained therein and the proceeds thereof, thereof and (ii) will take all actions reasonably requested by Lender necessary to maintain in favor of Lender a perfected first priority security interest in the Cash Management Account, including, without limitation, executing and filing UCC-1 Financing Statements and continuations thereof. No Borrower shall will not in any way alter or modify the Cash Management AccountAccount and will notify Lender of the account number thereof. Lender and the Servicer shall have the sole right to make withdrawals from the Cash Management Account and all costs and expenses for establishing and maintaining the Cash Management Account shall be paid by BorrowersBorrower.
(b) Provided So long as no Event of Default shall have occurred and be continuing, commencing on the first Business Day of each Payment Date all funds on deposit Collection Period, Lender or the Servicer shall allocate amounts deposited in the Cash Management Account shall be applied by Lender from time to time during such Collection Period to subaccounts (as set forth in the Cash Management Agreement) for payment of the following items in the order indicatedindicated below and at the times set forth in the Cash Management Agreement:
(i) First, payments to Lender in respect of the Tax and Insurance Escrow Monthly Deposit Fund in accordance with the terms and conditions of Section 7.2 hereof;
(ii) Second, payment to Lender of the Monthly Debt Service Payment Amount, applied first to the payment of interest computed at the Interest Rate with the remainder applied to the reduction of the Outstanding Principal Balanceoutstanding principal balance of the Note;
(iii) Third, payment payments to Lender in respect of the Replacement Reserve Monthly Deposit Fund in accordance with the terms and conditions of Section 7.3.1 7.3 hereof;
(iv) Fourth, payment scheduled monthly payments to Lender in respect of the Rollover Sears Reserve Monthly Deposit Fund in accordance with the terms and conditions of Section 7.4.1 7.5.1 hereof;
(v) Fifth, payment to the Lender of any other amounts then due and payable under the Loan Documents (other than the Outstanding Principal Balance)Documents;
(vi) Sixth, payment to Borrowers but only during a Sears Cash Trap Event (as hereinafter defined) or on or after the Anticipated Repayment Date, payments for monthly Cash Expenses incurred in an amount equal to accordance with the aggregate of (A) Operating Expenses (exclusive of management fees payable to any Affiliated Manager) due and payable by Borrowers during the succeeding month, as set forth in the related Approved Annual BudgetBudget pursuant to a written request for payment submitted by Borrower to Lender specifying the individual Cash Expenses in a form acceptable to Lender;
(vii) Seventh, and (B) but only during a Sears Cash Trap Event or on or after the Anticipated Repayment Date, payments for Extraordinary Expenses approved by Lender, if any;
(vii) Seventh, as a distribution permitted under applicable law, payment to Mezzanine Lender of an amount equal to the Mezzanine Loan Debt Service Payment Amount;
(viii) Eighth, so long as no Event of Default or Mezzanine Loan Event of Default has occurred and is continuing, payment to any Affiliated Manager of its management fees due under the Management Agreement, including any management fees that were not paid to such Affiliated Manager during the existence of any Event of Default or Mezzanine Loan Event of Default which no longer exists;
(ix) Ninth, but only during a Sears Cash Management PeriodTrap Event, all amounts then remaining after payment of items (i) through (viii) (all amounts then remaining after payment of items (i) through (viii) being hereinafter referred to as “Excess Cash”), payments to the Excess Cash Sears Reserve Fund in accordance with the terms and conditions of Section 7.5 7.5.1 hereof
(ix) Ninth, on or after the Anticipated Repayment Date, payments to Lender in reduction of the outstanding principal balance of the Loan;
(x) Tenth, if no Cash Management Period is continuingon or after the Anticipated Repayment Date, and payments to Lender has received notice from Mezzanine Lender that a Mezzanine Loan Event of Default is continuing, all Excess Cash to the Mezzanine Lenderfor Accrued Interest; and
(xi) Lastly, if no Cash Management Period is continuing and Lender has not received notice from Mezzanine Lender that payment of any Mezzanine Loan Event of Default is continuing, all excess amounts ("Excess Cash Flow") to BorrowersBorrower, to be used by Borrower for any purpose determined by Borrower and not otherwise prohibited hereunder.
(c) The insufficiency of funds on deposit in the Cash Management Account shall not relieve any absolve Borrower of the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever.
(d) All funds on deposit in the Cash Management Account following the occurrence and during the continuance of an Event of Default may be applied by Lender in such order, order and priority and proportions as Lender shall determine in its sole discretion until all Obligations of a monetary nature have been paid in full, with any amounts remaining being disbursed, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Documents 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. Each Borrower and Lender hereby agree and acknowledge that if (A) all of the Obligations have been paid in full, (B) there are funds remaining in the Reserve Funds, and (C) the Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining funds in the Reserve Funds to Borrowers, but rather shall deliver such funds, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full, to Mezzanine Lender to be held and applied in accordance with the terms of the Mezzanine Loan Documents until the Mezzanine Debt is paid in full, with any balance delivered to Borrowersdetermine.
(e) Transfers of any Borrower’s funds from any of the Reserve Funds or any other source to or for the benefit of Mezzanine Borrower shall constitute distributions to Mezzanine Borrower, and, in each case, must comply with the requirements as to distributions of the Delaware Limited Liability Company Act or similar statute in the state of such Borrower’s organization. The provisions of this Agreement, the Cash Management Agreement and the other Loan Documents shall not create a debtor-creditor relationship between any Borrower and Mezzanine Lender.
Appears in 1 contract
Samples: Loan Agreement (Pennsylvania Real Estate Investment Trust)
Cash Management Account. (a) Lender Upon the occurrence of a Cash Trap Period, Borrower shall establish and maintain a segregated Eligible Account (the “Cash Management Account”) to be held by Xxxxx Fargo Bank, N.A., as agent, Agent in trust and for the benefit of Administrative Agent for the benefit of Lender, which Cash Management Account shall be under the sole dominion and control of LenderAdministrative Agent. The Cash Management Account shall be entitled “The Royal Bank of Scotland plc, titled as Lender, pursuant to Loan Agreement dated as of April 1, 2010 — set forth in the Cash Management Account.” Each Agreement. Borrower (i) hereby grants to Administrative Agent for the benefit of Lender a first priority security interest in the Cash Management Account and all deposits at any time contained therein and the proceeds thereof, thereof and (ii) will take all actions reasonably requested by Lender necessary to maintain in favor of Lender Administrative Agent a perfected first priority security interest in the Cash Management Account, including, without limitation, executing and filing UCC-1 Financing Statements financing statements and continuations thereof. No Borrower shall will not in any way alter or modify the Cash Management AccountAccount and will notify Administrative Agent of the account number thereof. Lender and Servicer Administrative Agent shall have the sole right to make withdrawals from the Cash Management Account and all costs and expenses for establishing and maintaining the Cash Management Account shall be paid by BorrowersXxxxxxxx.
(b) Provided no Event of Default shall have occurred and be continuing, on each Payment Date all funds on deposit in the Cash Management Account shall be applied by Lender to the payment of the following items in the order indicated:
(i) First, payments to Lender in respect of the Tax and Insurance Escrow Monthly Deposit in accordance with the terms and conditions of Section 7.2 hereof;
(ii) Second, payment to Lender of the Monthly Debt Service Payment Amount, applied first to the payment of interest computed at the Interest Rate with the remainder applied to the reduction of the Outstanding Principal Balance;
(iii) Third, payment to Lender in respect of the Replacement Reserve Monthly Deposit in accordance with the terms and conditions of Section 7.3.1 hereof;
(iv) Fourth, payment to Lender in respect of the Rollover Reserve Monthly Deposit in accordance with the terms and conditions of Section 7.4.1 hereof;
(v) Fifth, payment to Lender of any other amounts then due and payable under the Loan Documents (other than the Outstanding Principal Balance);
(vi) Sixth, payment to Borrowers in an amount equal to the aggregate of (A) Operating Expenses (exclusive of management fees payable to any Affiliated Manager) due and payable by Borrowers during the succeeding month, as set forth in the Approved Annual Budget, and (B) payments for Extraordinary Expenses approved by Lender, if any;
(vii) Seventh, as a distribution permitted under applicable law, payment to Mezzanine Lender of an amount equal to the Mezzanine Loan Debt Service Payment Amount;
(viii) Eighth, so long as no Event of Default or Mezzanine Loan Event of Default has occurred and is continuing, payment to any Affiliated Manager of its management fees due under the Management Agreement, including any management fees that were not paid to such Affiliated Manager during the existence of any Event of Default or Mezzanine Loan Event of Default which no longer exists;
(ix) Ninth, during a Cash Management Period, all amounts then remaining after payment of items (i) through (viii) (all amounts then remaining after payment of items (i) through (viii) being hereinafter referred to as “Excess Cash”), to the Excess Cash Reserve Fund in accordance with the terms and conditions of Section 7.5 hereof;
(x) Tenth, if no Cash Management Period is continuing, and Lender has received notice from Mezzanine Lender that a Mezzanine Loan Event of Default is continuing, all Excess Cash to the Mezzanine Lender; and
(xi) Lastly, if no Cash Management Period is continuing and Lender has not received notice from Mezzanine Lender that any Mezzanine Loan Event of Default is continuing, all Excess Cash to Borrowers.
(c) The insufficiency of funds on deposit in the Cash Management Account shall not relieve any Borrower of from the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever.
(dc) All Subject to Section 2.6.2(d) hereof, all funds on deposit in the Cash Management Account following the occurrence and during the continuance of an Event of Default may be applied by Lender in such order, priority and proportions as Lender shall determine in its sole discretion until all Obligations of a monetary nature have been paid in full, with any amounts remaining being disbursed, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full Administrative Agent pursuant to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine any Loan Documents if the Mezzanine Debt (or any portion thereof) is then outstandingDocument in such order and priority as Administrative Agent shall determine, until the Mezzanine Debt is paid in full, and then (ii) any balance subject to Borrowers. Each Borrower and Lender hereby agree and acknowledge that if (A) all of the Obligations have been paid in full, (B) there are funds remaining in the Reserve Funds, and (C) the Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining funds in the Reserve Funds to Borrowers, but rather shall deliver such funds, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full, to Mezzanine Lender to be held and applied in accordance with the terms of the Mezzanine Loan Documents until the Mezzanine Debt is paid in full, with any balance delivered to BorrowersSection 7.6 of this Agreement.
(ed) Transfers of any Borrower’s funds from any of the Reserve Funds or any other source to or for the benefit of Mezzanine Borrower shall constitute distributions to Mezzanine Borrower, and, in each case, must comply with the requirements as to distributions of the Delaware Limited Liability Company Act or similar statute in the state of such Borrower’s organization. The provisions of this Agreement, Xxxxxxxx hereby agrees that Administrative Agent may modify the Cash Management Agreement for the purpose of establishing additional sub accounts in connection with any payments otherwise required under this Agreement and the other Loan Documents and Administrative Agent shall provide prior written notice thereof to Borrower no less than five (5) Business Days prior to such modification.
(e) Notwithstanding anything contained herein or in the other Loan Documents to the contrary, Xxxxxx agrees that, notwithstanding the existence of an Event of Default, prior to a Priority Payment Cessation Event, Administrative Agent shall apply amounts on deposit in the Cash Management Account to payment of the Priority Waterfall Payments or, provided that all Priority Waterfall Payments have been made, for Protective Advances as reasonably determined by Administrative Agent. During the continuance of an Event of Default, any amounts remaining in the Cash Management Account after payment of the Priority Waterfall Payments and Protective Advances (to the extent a Priority Payment Cessation Event has not create a debtor-creditor relationship between any Borrower occurred) shall be applied by Administrative Agent in such order and Mezzanine Lenderpriority as Administrative Agent shall determine, subject to the terms of Section 7.6 of this Agreement.
Appears in 1 contract
Cash Management Account. 3.5.1 Simultaneously with the execution hereof Borrower has entered into a cash management account agreement among Borrower, Lender and one or more certain financial institutions (atogether with any modifications or amendments thereof, are hereinafter collectively referred to as the "Cash Management Agreement"), which provide, among other things, that (i) all Operating Lease Rent shall be deposited in accordance with the Cash Management Agreement, and (ii) if any TRS Lease is in effect, all other sums collected with respect to the Properties and payable to a TRS Lessee shall be deposited in accordance with the Cash Management Agreement and that such amounts shall be disbursed in accordance with Section 3.5 hereof. Borrower shall pay all reasonable costs and expenses required under the Cash Management Agreement. Upon the occurrence of an Event of Default, Lender may apply any sums then held pursuant to the Cash Management Agreement to the payment of the Debt in any order in its sole discretion. Until expended or applied, amounts held pursuant to the Cash Management Agreement shall constitute additional security for the Debt.
3.5.2 Borrower shall establish and maintain a segregated Eligible Account (the “"Cash Management Account”") to be held by Xxxxx Fargo Bank, N.A., as agent, the Servicer in trust for the benefit of Lender, which Cash Management Account shall be under the sole dominion and control of Lender, subject to the Cash Management Agreement. The Cash Management Account shall be entitled “The Royal Bank of Scotland plc"General Electric Capital Corporation, as Lender, pursuant to Loan Agreement dated EQI Financing Partnership IV, L.P. and EQI/WV Financing Partnership II, L.P., as of April 1, 2010 — Borrower - Cash Management AccountAgreement.” Each " Borrower (i) hereby grants to Lender a first priority security interest in the Cash Management Account and all deposits at any time contained therein and the proceeds thereof, thereof and (ii) will take all actions reasonably requested by Lender necessary to maintain in favor of Lender a perfected first priority security interest in the Cash Management Account, including, without limitation, executing and filing UCC-1 Financing Statements and continuations thereof. No Borrower shall in any way alter or modify Subject to this Agreement and the Cash Management Account. Agreement, Lender and Servicer shall have the sole right to make withdrawals from the Cash Management Account and all reasonable costs and expenses for establishing and maintaining the Cash Management Account shall be paid by BorrowersBorrower.
3.5.3 Borrower shall deliver written instructions to each Operating Lessee (bthat is not a TRS Lessee) to deliver all Operating Lease Rent received by each such Operating Lessee directly to the Cash Management Account. Borrower shall deliver written instructions to each Manager of any Individual Property that is subject to a TRS Lease to deliver all Rents payable to the TRS Lessee received by Manager directly to the Cash Management Account. Borrower shall, and shall cause each TRS Lessee to, deposit into the Cash Management Account promptly upon receipt all amounts received by Borrower or the TRS Lessee constituting Rents.
3.5.4 Provided no Event of Default shall have occurred and be continuing, and provided no Trigger Event has occurred and no Trigger Period shall be continuing, then all Funds on deposit on the Cash Management Account shall be disbursed in accordance with the Cash Management Agreement to the Borrower Account (as defined in the Cash Management Agreement).
3.5.5 Except as otherwise provided herein, following the occurrence of a Trigger Event and during the continuance of a Trigger Period, provided no Event of Default shall have occurred and be continuing, on the first day of each Payment Date calendar month (or, if such day is not a Business Day, on the immediately preceding Business Day) all funds on deposit in the Cash Management Account shall be applied by Lender to the payment of the following items in the order indicated:
(ia) First, payments to Lender the Ground Lease Escrow Fund in respect of accordance with the terms and conditions hereof;
(b) Second, payments to the Tax and Insurance Escrow Monthly Deposit Fund in accordance with the terms and conditions of Section 7.2 5.4 hereof;
(iic) SecondThird, payment to Lender of the Monthly Debt Service Payment Amount, applied first to the payment of interest computed at the Interest Contract Rate with the remainder applied to the reduction of the Outstanding Principal Balanceoutstanding principal balance of the Note;
(iiid) ThirdFourth, payment payments to Lender in respect of the Replacement Reserve Monthly Deposit Escrow Fund in accordance with the terms and conditions of Section 7.3.1 hereof;
(iv) Fourth, payment to Lender in respect of the Rollover Reserve Monthly Deposit in accordance with the terms and conditions of Section 7.4.1 hereof;
(ve) Fifth, payment to the Lender of any other amounts then due and payable under the Loan Documents (other than the Outstanding Principal BalanceAccrued Interest);
(vif) Sixth, payment to Borrowers in an amount equal to on or after the aggregate of (A) Operating Expenses (exclusive of management fees payable to any Affiliated Manager) due and payable by Borrowers Anticipated Payment Date or during the succeeding monthcontinuance of a PIP Noncompliance Period, as set forth payments for monthly Cash Expenses incurred in accordance with the related Approved Annual BudgetBudget pursuant to a written request for payment submitted by Borrower to Lender specifying the individual Cash Expenses in a form acceptable to Lender;
(g) Seventh, and (B) on or after the Anticipated Payment Date or during the continuance of a PIP Noncompliance Period, payments for Extraordinary Expenses approved by Lender, if any;
(vii) Seventh, as a distribution permitted under applicable law, payment to Mezzanine Lender of an amount equal to the Mezzanine Loan Debt Service Payment Amount;
(viiih) Eighth, so long as no Event of Default or Mezzanine Loan Event of Default has occurred and is continuing, payment to any Affiliated Manager of its management fees due under the Management Agreement, including any management fees that were not paid to such Affiliated Manager during the existence continuance of any Event of Default or Mezzanine Loan Event of Default which no longer exists;
(ix) Ninth, during a Cash Management PIP Noncompliance Period, all amounts then remaining after payment of items (i) through (viii) (all amounts then remaining after payment of items (i) through (viii) being hereinafter referred to as “Excess Cash”), payments to the Excess Cash Reserve PIP Escrow Fund in accordance with the terms and conditions of Section 7.5 hereofhereof until the amount on deposit is equal to the PIP Required Amount;
(xi) Ninth, on or after the Anticipated Payment Date, payments to Lender in reduction of the outstanding principal balance of the Loan;
(j) Tenth, if no Cash Management Period is continuingon or after the Anticipated Payment Date, and payments to Lender has received notice from Mezzanine Lender that a Mezzanine Loan Event of Default is continuing, all Excess Cash to the Mezzanine Lenderfor Accrued Interest; and
(xik) Lastly, if no Cash Management Period is continuing and Lender has not received notice from Mezzanine Lender that payment of any Mezzanine Loan Event of Default is continuing, all Excess Cash excess amounts to BorrowersBorrower.
(c) 3.5.6 The insufficiency of funds on deposit in the Cash Management Account shall not relieve any absolve Borrower of the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever.
(d) 3.5.7 All funds on deposit in the Cash Management Account during following the continuance occurrence of an Event of Default may be applied by Lender in such order, order and priority and proportions as Lender shall determine in its sole discretion until all Obligations of a monetary nature have been paid in fulldetermine; provided, with however, that any amounts remaining being disbursed, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid excess of amounts necessary to pay the Debt in full shall be released to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Documents 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. Each Borrower and Lender hereby agree and acknowledge that if (A) all of the Obligations have been paid in full, (B) there are funds remaining in the Reserve Funds, and (C) the Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining funds in the Reserve Funds to Borrowers, but rather shall deliver such funds, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full, to Mezzanine Lender to be held and applied in accordance with the terms of the Mezzanine Loan Documents until the Mezzanine Debt is paid in full, with any balance delivered to BorrowersBorrower.
(e) Transfers of any Borrower’s funds from any of the Reserve Funds or any other source to or for the benefit of Mezzanine Borrower shall constitute distributions to Mezzanine Borrower, and, in each case, must comply with the requirements as to distributions of the Delaware Limited Liability Company Act or similar statute in the state of such Borrower’s organization. The provisions of this Agreement, the Cash Management Agreement and the other Loan Documents shall not create a debtor-creditor relationship between any Borrower and Mezzanine Lender.
Appears in 1 contract
Samples: Loan Agreement (Equity Inns Inc)
Cash Management Account. (a) Lender Borrower shall establish and maintain or hereby authorizes and consents to Lender establishing and maintaining a segregated Eligible Account (the “Cash Management Account”) to be held by Xxxxx Fargo Bank, N.A., as agent, Servicer in trust for the benefit of Lender, which Cash Management Account shall be under the sole dominion and control of LenderLender without any further consent by Borrower. The Cash Management Account shall be entitled “The Royal Bank of Scotland plcColumn Financial, Inc., as LenderLender of Thunderbolt, pursuant to Loan Agreement dated as of April 1, 2010 — LLC – Cash Management Account.” Each Borrower (i) hereby grants to Lender a first priority security interest in the Cash Management Account and all deposits at any time contained therein and the proceeds thereof, thereof and (ii) will take all actions reasonably requested by Lender necessary to maintain in favor of Lender a perfected first priority security interest in the Cash Management Account, including, without limitation, executing and filing UCC-1 Financing Statements and continuations thereof. No Borrower shall will not in any way alter or modify the Cash Management AccountAccount and will notify Lender of the account number thereof. Lender and Servicer shall have the sole right to make withdrawals from the Cash Management Account without any further consent or authorization from Borrower and all costs and expenses for establishing and maintaining the Cash Management Account shall be paid by BorrowersBorrower.
(b) Provided no Event of Default shall have occurred and be continuing, on each Payment Date (or, if such Payment Date is not a Business Day, on the immediately preceding Business Day) all funds on deposit in the Cash Management Account shall be applied applied, to the extent sufficient funds remain therefor, by Lender to the payment of the following items in the order indicated:
(i) First, payments to Lender in respect of the Tax and Insurance Escrow Monthly Deposit Fund in accordance with the terms and conditions of Section 7.2 hereof;
(ii) Second, payment to Lender of the Monthly Debt Service Payment Amount, applied first to the payment of interest computed at the Initial Term Interest Rate with the remainder applied to the reduction of the Outstanding Principal Balanceoutstanding principal balance of the Note;
(iii) Third, payment payments to Lender in respect of the Replacement Reserve Monthly Deposit Escrow Fund and the Rollover Escrow Fund in accordance with the terms and conditions of Section 7.3.1 hereof;
(iv) Fourth, payment to Lender in respect of the Rollover Reserve Monthly Deposit in accordance with the terms and conditions of Section 7.4.1 hereof;
(v) Fifth, payment to Lender of any other amounts then due and payable under the Loan Documents Documents;
(other than v) Fifth, payments for monthly Cash Expenses incurred in accordance with the Outstanding Principal Balance)related Approved Annual Budget pursuant to a written request for payment submitted by Borrower to Lender specifying the individual Cash Expenses in a form acceptable to Lender;
(vi) Sixth, payment to Borrowers in an amount equal to the aggregate of (A) Operating Expenses (exclusive of management fees payable to any Affiliated Manager) due and payable by Borrowers during the succeeding month, as set forth in the Approved Annual Budget, and (B) payments for Extraordinary Expenses approved by Lender, if any;; and
(vii) Seventh, as a distribution permitted under applicable lawLastly, payment to Mezzanine Lender of an amount equal to the Mezzanine Loan Debt Service Payment Amount;
(viii) Eighth, so long as no Event of Default or Mezzanine Loan Event of Default has occurred and is continuing, payment to any Affiliated Manager of its management fees due under the Management Agreement, including any management fees that were not paid to such Affiliated Manager during the existence of any Event of Default or Mezzanine Loan Event of Default which no longer exists;
excess amounts (ix) Ninth, during a Cash Management Period, all amounts then remaining after payment of items (i) through (viii) (all amounts then remaining after payment of items (i) through (viii) being hereinafter referred to as “Excess CashCash Flow”), ) to the Excess Cash Reserve Fund in accordance with the terms and conditions of Section 7.5 hereof;
(x) Tenth, if no Cash Management Period is continuing, and Lender has received notice from Mezzanine Lender that a Mezzanine Loan Event of Default is continuing, all Excess Cash to the Mezzanine Lender; and
(xi) Lastly, if no Cash Management Period is continuing and Lender has not received notice from Mezzanine Lender that any Mezzanine Loan Event of Default is continuing, all Excess Cash to BorrowersBorrower.
(c) The insufficiency of funds on deposit in the Cash Management Account shall not relieve any Borrower of from the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever.
(d) All funds on deposit in the Cash Management Account during following the continuance occurrence of an Event of Default may be applied by Lender in such order, order and priority and proportions as Lender shall determine in its sole discretion until all Obligations of a monetary nature have been paid in full, with any amounts remaining being disbursed, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Documents 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. Each Borrower and Lender hereby agree and acknowledge that if (A) all of the Obligations have been paid in full, (B) there are funds remaining in the Reserve Funds, and (C) the Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining funds in the Reserve Funds to Borrowers, but rather shall deliver such funds, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full, to Mezzanine Lender to be held and applied in accordance with the terms of the Mezzanine Loan Documents until the Mezzanine Debt is paid in full, with any balance delivered to Borrowersdetermine.
(e) Transfers of any Borrower’s funds from any of the Reserve Funds or any other source to or for the benefit of Mezzanine Borrower shall constitute distributions to Mezzanine Borrower, and, in each case, must comply with the requirements as to distributions of the Delaware Limited Liability Company Act or similar statute in the state of such Borrower’s organization. The provisions of this Agreement, the Cash Management Agreement and the other Loan Documents shall not create a debtor-creditor relationship between any Borrower and Mezzanine Lender.
Appears in 1 contract
Samples: Loan Agreement (Fairchild Corp)
Cash Management Account. (a) Lender Borrower shall establish and maintain a segregated Eligible Account (the “Cash Management Account”) to be held by Xxxxx Fargo Bank, N.A., as agent, Servicer in trust for the benefit of Lender, which Cash Management Account shall be under the sole dominion and control of Lender. The Cash Management Account shall be entitled “The Royal Bank TPG-BH/ICC, L.P. as debtor for the benefit of Scotland plcNomura Credit & Capital, Inc. as Lender, pursuant to Loan Agreement dated as of April 1, 2010 — secured party - Cash Management Account.” Each ”. In connection with a Securitization or other transfer of the Loan, Lender shall have the right to cause the applicable account to be entitled with such other designation as Lender (or its successor) may select in its reasonable discretion to reflect an assignment or transfer of the Loan. Borrower (i) hereby grants to Lender a first priority security interest in the Cash Management Account and all deposits at any time contained therein and the proceeds thereof, thereof and (ii) will take all actions reasonably requested by Lender necessary to maintain in favor of Lender a perfected first priority security interest in the Cash Management Account, including, without limitation, executing and authorizing the filing of UCC-1 Financing Statements and continuations thereof. No Borrower shall will not in any way alter or modify the Cash Management AccountAccount and will notify Lender of the account number thereof. Lender and Servicer shall have the sole right to make withdrawals from the Cash Management Account and all costs and expenses for establishing and maintaining the Cash Management Account shall be paid by BorrowersBorrower.
(b) Provided no Event of Default shall have occurred and be continuing, on each Payment Date (or, if such Payment Date is not a Business Day, on the immediately preceding Business Day) all funds on deposit in the Cash Management Account shall be applied by Lender to the payment of the following items in the order indicated:
(i) First, payments to Lender in respect of the Tax and Insurance Escrow Monthly Deposit Reserve Fund in accordance with the terms and conditions of Section 7.2 hereof7.2;
(ii) Second, payment to Lender of the Monthly monthly Debt Service Payment Amount, applied first to amount on the payment of interest A Note computed at the Applicable Interest Rate with on the remainder applied to the reduction of the Outstanding Principal BalanceA Note;
(iii) Third, payment to Lender in respect of the Replacement Reserve Monthly Deposit in accordance with monthly Debt Service amount on the terms and conditions of Section 7.3.1 hereofB Note computed at the Applicable Interest Rate on the B Note;
(iv) Fourth, payment to Lender in respect of the Rollover Reserve Monthly Deposit in accordance with the terms and conditions of Section 7.4.1 hereof;
(v) Fifth, payment to Lender of any other amounts then due and payable under the Loan Documents (other than the Outstanding Principal Balance)Documents;
(vi) Sixth, payment to Borrowers in an amount equal to the aggregate of (A) Operating Expenses (exclusive of management fees payable to any Affiliated Manager) due and payable by Borrowers during the succeeding month, as set forth in the Approved Annual Budget, and (B) payments for Extraordinary Expenses approved by Lender, if any;
(vii) Seventh, as a distribution permitted under applicable law, payment to Mezzanine Lender of an amount equal to the Mezzanine Loan Debt Service Payment Amount;
(viii) Eighth, so long as no Event of Default or Mezzanine Loan Event of Default has occurred and is continuing, payment to any Affiliated Manager of its management fees due under the Management Agreement, including any management fees that were not paid to such Affiliated Manager during the existence of any Event of Default or Mezzanine Loan Event of Default which no longer exists;
(ix) Ninth, during a Cash Management Period, all amounts then remaining after payment of items (i) through (viii) (all amounts then remaining after payment of items (i) through (viii) being hereinafter referred to as “Excess Cash”), to the Excess Cash Reserve Fund in accordance with the terms and conditions of Section 7.5 hereof;
(x) Tenth, if no Cash Management Period is continuing, and Lender has received notice from Mezzanine Lender that a Mezzanine Loan Event of Default is continuing, all Excess Cash to the Mezzanine Lender; and
(xiv) Lastly, if no Cash Management Period is continuing and Lender has not received notice from Mezzanine Lender that payment of any Mezzanine Loan Event of Default is continuing, all excess amounts (“Excess Cash Flow”) to BorrowersBorrower.
(c) The insufficiency of funds on deposit in the Cash Management Account shall not relieve any Borrower of from the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever.
(d) All funds on deposit in the Cash Management Account during following the continuance occurrence of an Event of Default may be applied by Lender in such order, order and priority and proportions as Lender shall determine in its sole discretion until all Obligations of a monetary nature have been paid in full, with any amounts remaining being disbursed, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Documents 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. Each Borrower and Lender hereby agree and acknowledge that if (A) all of the Obligations have been paid in full, (B) there are funds remaining in the Reserve Funds, and (C) the Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining funds in the Reserve Funds to Borrowers, but rather shall deliver such funds, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full, to Mezzanine Lender to be held and applied in accordance with the terms of the Mezzanine Loan Documents until the Mezzanine Debt is paid in full, with any balance delivered to Borrowersdetermine.
(e) Transfers of any Borrower’s funds from any of the Reserve Funds or any other source to or for the benefit of Mezzanine Borrower shall constitute distributions to Mezzanine Borrower, and, in each case, must comply with the requirements as to distributions of the Delaware Limited Liability Company Act or similar statute in the state of such Borrower’s organization. The provisions of this Agreement, the Cash Management Agreement and the other Loan Documents shall not create a debtor-creditor relationship between any Borrower and Mezzanine Lender.
Appears in 1 contract
Cash Management Account. (a) Borrower shall cooperate with Lender shall establish and maintain Servicer in connection with the establishment and maintenance of a segregated Eligible Account (the “Cash Management Account”) to be held by Xxxxx Fargo Bank, N.A., as agent, Servicer in trust for the benefit of Lender, which Cash Management Account shall be under the sole dominion and control of Lender. The Cash Management Account shall be entitled “The Royal Bank of Scotland plcColumn Financial, Inc., as Lender, pursuant to Loan Agreement dated as of April 1June 21, 2010 — 2004—Cash Management Account.” Each Borrower hereby (i) hereby grants to Lender a first priority security interest in the Cash Management Account and all deposits at any time contained therein and the proceeds thereof, and (ii) will take all actions reasonably requested by Lender necessary to maintain in favor of Lender a perfected first priority security interest in the Cash Management Account, including, without limitation, executing and authorizing the filing of UCC-1 Financing Statements and continuations thereof. No Borrower shall will not in any way alter or modify the Cash Management AccountAccount and will notify Lender of the account number thereof. Lender and Servicer shall have the sole right to make withdrawals from the Cash Management Account and all costs and expenses for establishing and maintaining the Cash Management Account shall be paid by BorrowersBorrower.
(b) Provided no Event After the occurrence and during the continuance of Default shall have occurred and be continuinga Sweep Event, on each Payment Date (or, if such Payment Date is not a Business Day, on the immediately preceding Business Day) all funds on deposit in the Cash Management Account shall be applied by Lender to the payment of the following items in the order indicated:
(i) First, payments to Lender in respect of the Tax and Insurance Escrow Monthly Deposit Funds in accordance with the terms and conditions of Section 7.2 hereof;
(ii) Second, payment to Lender of the Monthly Debt Service Interest Payment Amount, applied first to the payment of interest computed at the Applicable Interest Rate with the remainder applied to the reduction of the Outstanding Principal BalanceRate;
(iii) Third, payment payments to Lender in respect of the Replacement FF&E Reserve Monthly Deposit Funds in accordance with the terms and conditions of Section 7.3.1 7.3 hereof;
(iv) Fourth, payment payments to Lender in respect of the Rollover Ground Rent Reserve Monthly Deposit Funds in accordance with the terms and conditions of Section 7.4.1 7.4 hereof;
(v) Fifth, payment to Lender of any other amounts then due and payable under the Loan Documents (other than the Outstanding Principal Balance)Documents;
(vi) Sixth, payment to Borrowers in an amount equal to the aggregate extent that, in respect of any Other Loan, there is, or Lender reasonably determines that there will be, a shortfall (Aeach an “Other Loan Shortfall”) Operating Expenses (exclusive of management fees payable to any Affiliated Manager) due and payable by Borrowers during the succeeding month, as set forth relevant calendar month in the Approved Annual Budgetitems referred to (x) in clauses (i)-(vi) of Section 2.6.3(b) of the applicable Other Loan Agreements, and (B) payments for Extraordinary Expenses approved by Lender, if anyfunds sufficient to pay such Other Loan Shortfall;
(vii) Seventh, as a distribution permitted under applicable law, payment funds sufficient to Mezzanine Lender of an amount equal pay Operating Expenses for the next calendar month pursuant to the Mezzanine Loan Debt Service Payment AmountApproved Annual Budget, other than expenses paid, or to be paid to, an Affiliated Manager;
(viii) Eighth, so long as no Event of Default or Mezzanine Loan Event of Default has occurred funds sufficient to pay Extraordinary Expenses approved by Lender and is continuingwhich are then due and payable, payment to any Affiliated Manager of its management fees due under the Management Agreement, including any management fees that were not paid to such Affiliated Manager during the existence of any Event of Default or Mezzanine Loan Event of Default which no longer existsif any;
(ix) Ninth, during a Cash Management Periodfunds sufficient to pay Operating Expenses paid, all amounts then remaining after payment of items (i) through (viii) (all amounts then remaining after payment of items (i) through (viii) being hereinafter referred or to as “Excess Cash”)be paid to, an Affiliated Manager for the next calendar month pursuant to the Excess Cash Reserve Fund in accordance with the terms and conditions of Section 7.5 hereof;Approved Annual Budget; and
(x) Tenth, if no Cash Management Period is continuingLastly, and Lender has received notice from Mezzanine Lender that a Mezzanine Loan so long as an Event of Default is continuingdoes not exist, all payment of any excess amounts (“Excess Cash Flow”) to the Mezzanine Lender; and
(xi) Lastly, if no Cash Management Period is continuing and Lender has not received notice from Mezzanine Lender that any Mezzanine Loan Event of Default is continuing, all Excess Cash to BorrowersBorrower.
(c) The insufficiency of funds on deposit in the Cash Management Account shall not relieve any Borrower of the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever.
(d) All funds on deposit in the Cash Management Account during following the continuance occurrence of an Event of Default may be applied by Lender in such order, order and priority and proportions as Lender shall determine in its sole discretion until all Obligations of a monetary nature have been paid in full, with any amounts remaining being disbursed, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Documents 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. Each Borrower and Lender hereby agree and acknowledge that if (A) all of the Obligations have been paid in full, (B) there are funds remaining in the Reserve Funds, and (C) the Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining funds in the Reserve Funds to Borrowers, but rather shall deliver such funds, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full, to Mezzanine Lender to be held and applied in accordance with the terms of the Mezzanine Loan Documents until the Mezzanine Debt is paid in full, with any balance delivered to Borrowersdiscretion.
(e) Transfers of any Borrower’s funds from any of the Reserve Funds or any other source to or for the benefit of Mezzanine Borrower shall constitute distributions to Mezzanine Borrower, and, in each case, must comply with the requirements as to distributions of the Delaware Limited Liability Company Act or similar statute in the state of such Borrower’s organization. The provisions of this Agreement, the Cash Management Agreement and the other Loan Documents shall not create a debtor-creditor relationship between any Borrower and Mezzanine Lender.
Appears in 1 contract
Cash Management Account. (a) Lender There shall establish be established and maintain maintained a segregated Eligible Account (the “Cash Management Account”) to be held by Xxxxx Fargo Bank, N.A., as agent, in trust for the benefit of Lender), which Cash Management Account shall be under the sole dominion and control of Lender. The Cash Management Account shall be entitled “The Royal Bank HRHH Hotel/Casino, LLC, HRHH Cafe, LLC, HRHH Development, LLC, HRHH IP, LLC and HRHH Gaming, LLC Cash Management Account for the benefit of Scotland plcVegas HR Private Limited and TriMont Real Estate Advisors, Inc. as Lender, pursuant Agent” or such other title as shall be reasonably acceptable to Loan Agreement dated as of April 1, 2010 — Lender and the bank holding the Cash Management Account.” . Each Borrower (i) hereby grants to Lender a first priority security interest in the Cash Management Account and all deposits at any time contained therein and the proceeds thereof, and (ii) will take all actions reasonably requested by Lender that are necessary to maintain in favor of Lender a perfected first priority security interest in the Cash Management Account, including, without limitation, executing and filing UCC-1 Financing Statements and continuations thereof. No Borrower shall in any way alter or modify the Cash Management Account. Lender and Servicer shall have the sole right to make withdrawals from the Cash Management Account for application pursuant to the terms of this Agreement and the other Loan Documents and all reasonable costs and expenses for establishing and maintaining the Cash Management Account shall be paid by Borrowers.
(b) Provided Subject to Section 2.6.2(c), provided no Event of Default shall have occurred and be continuing, on each Payment Date Wednesday and Friday (or more frequently to the extent specifically provided in Section 2.6.2(g) below) of each calendar week during an Interest Period (or such other date as is expressly set forth in the Cash Management Agreement) all funds on deposit in the Cash Management Account (other than Working Capital Account Repayments which shall be applied by Lender to the in accordance with Section 2.6.2(h) below) shall be credited towards payment of the following items (but not disbursed) in the order indicated, it being acknowledged and agreed by Borrowers and Lender, however, that (1) as soon as there are sufficient funds in the Cash Management Account to satisfy the amounts that will be due on the next Payment Date under clauses (ii) and (iii) below, on each Wednesday and Friday (or more frequently to the extent specifically provided in Section 2.6.2(g) below) of each calendar week thereafter during the remainder of such Interest Period, Lender shall disburse the funds on deposit in the Cash Management Account to Borrowers until such time, if ever, during such Interest Period as the total amounts that will be due on the next Payment Date under clause (iv) and (v) below shall have been fully disbursed, and (2) on each Payment Date, all remaining funds in the Cash Management Account shall be disbursed in accordance with the following in the order indicated, except to the extent already disbursed on account of clause (iv) and/or (v) below:
(i) First, payment to Borrowers in an amount to enable Borrowers to satisfy any Gaming Liquidity Draw Requests (but not to reimburse Borrowers or any Affiliate thereof for any amounts previously paid or advanced, as capital contributions or otherwise, to Gaming Operator in respect of any Gaming Liquidity Draw Requests);
(ii) Second, payments to Lender in repayment of any funds advanced pursuant to the provisions of Section 8.2(h) hereof;
(iii) Third, payments to Lender in respect of the Tax and Insurance Escrow Monthly Deposit Fund in accordance with the terms and conditions of Section 7.2 hereof;
(ii) Second, payment to Lender of the Monthly Debt Service Payment Amount, applied first to the payment of interest computed at the Interest Rate with the remainder applied to the reduction of the Outstanding Principal Balance;
(iii) Third, payment to Lender in respect of the Replacement Reserve Monthly Deposit in accordance with the terms and conditions of Section 7.3.1 hereof;
(iv) Fourth, payment to Borrowers of an amount sufficient to pay the lesser of (x) the actual cash monthly Operating Expenses, including management fees payable to Resort Manager, Gaming Operator or Liquor Manager (but specifically excluding any reimbursements to Borrowers, Sponsor or any Affiliates thereof of any such amounts previously paid or advanced as capital contributions or otherwise), in each instance as set forth in an Operating Expense Request delivered to Lender no later than three (3) Business Days prior to such Payment Date (which shall not include (A) Taxes and Insurance Premiums set forth in respect the Approved Annual Budget to be paid for out of the Rollover Tax and Insurance Escrow Funds, and (B) any other expenses set forth in the Approved Annual Budget to be paid for out of any Reserve Monthly Deposit Funds, but which may include Following Month Critical Payments) and (y) the amount set forth for approved Operating Expenses in accordance with the terms and conditions then current Approved Annual Budget, subject to any Permitted Variance; provided, however, that in no event shall the amount requested by Borrowers in any Operating Expense Request exceed the sum of Section 7.4.1 hereof(I) the monthly Operating Expenses for the applicable month set forth in the Approved Annual Budget then in effect, subject to any Permitted Variance, plus (II) any Following Month Critical Payments set forth in such Operating Expense Report, plus, (III) if applicable, any Operating Expense Surplus relating to the month immediately prior to such Payment Date;
(v) Fifth, payment to Lender of any other amounts then due and payable under the Loan Documents (other than the Outstanding Principal Balance);
(vi) Sixth, payment to Borrowers in an amount equal to the aggregate of (A) Operating Expenses (exclusive of management fees payable to any Affiliated Manager) due and payable by Borrowers during the succeeding month, as set forth in the Approved Annual Budget, and (B) payments for Extraordinary Expenses approved by Lender, if any;
(vi) Sixth, on the first Payment Date in each calendar quarter, payment to the Administrative Agent of the Administrative Agent Fee then due and payable;
(vii) Seventh, as a distribution permitted under applicable law, payment to Mezzanine Lender in respect of an amount equal to the Mezzanine Loan Debt Service Payment Amount;
(viii) Eighth, so long as no Event of Default or Mezzanine Loan Event of Default has occurred and is continuing, payment to any Affiliated Manager of its management fees due under the Management Agreement, including any management fees that were not paid to such Affiliated Manager during the existence of any Event of Default or Mezzanine Loan Event of Default which no longer exists;
(ix) Ninth, during a Cash Management Period, all amounts then remaining after payment of items (i) through (viii) (all amounts then remaining after payment of items (i) through (viii) being hereinafter referred to as “Excess Cash”), to the Excess Cash Replacement Reserve Fund in accordance with the terms and conditions of Section 7.5 7.3 hereof;
(viii) Eighth, payment to Borrowers for actual Approved Capital Expenditures, to the extent that there are not sufficient funds then available in the Working Capital Reserve Account to pay for such Approved Capital Expenditures, provided, however, that the amount to be disbursed hereunder shall not exceed the amount set forth in the Approved Annual Budget;
(ix) Ninth; payments to Lender in respect of the Seasonality Reserve Fund, if any, in accordance with the terms and conditions of Section 7.4 hereof;
(x) Tenth, if no Cash Management Period is continuing, and payment to Lender has received notice from Mezzanine Lender that a Mezzanine Loan Event of Default is continuing, all Excess Cash the then Monthly Interest Payment with respect to the Mezzanine Lender; andNote A;
(xi) LastlyEleventh, payment to Lender of the then Monthly Interest Payment with respect to Note B;
(xii) Twelfth, payment to Lender of the Note A Outstanding Principal Balance (inclusive of all PIK’d Interest);
(xiii) Thirteenth, on a pari passu basis, to Lender in repayment of the Note B Outstanding Principal Balance (inclusive of any PIK’d Interest added to the Note B Outstanding Principal Balance following the repayment in full of the Note A Outstanding Principal Balance) and to Subordinate Mortgage Lender in repayment of the Subordinate Mortgage Loan Outstanding Principal Balance;
(xiv) Fourteenth, to the payment of accrued interest on the Subordinate Mortgage Loan, at an annual internal rate of return equal to 15%, calculated in accordance with Exhibit A attached hereto;
(xv) Fifteenth, payment to Lender of the Supplemental Interest;
(xvi) Sixteenth, the balance if no Cash Management Period is continuing and Lender has not received notice from Mezzanine Lender that any Mezzanine Loan Event to be distributed in accordance with the terms of Default is continuing, all Excess Cash to Borrowersthe Net Proceeds Allocation Agreement.
(c) The Notwithstanding anything to the contrary set forth in Section 2.6.2(b) hereof, upon the receipt by Borrowers of any Gaming Liquidity Draw Request and delivery of a copy of the same to Lender, funds shall be disbursed to Borrowers (or directly to Gaming Operator if requested by Borrowers) to satisfy such Gaming Liquidity Draw Request as soon as sufficient funds are available in the Cash Management Account without regard to any requirement that funds be disbursed only on Wednesdays and Fridays and without regard to whether any such funds have previously been “allocated” or “credited” towards the payment of other amounts; provided, however, that no such funds shall be made available to reimburse Borrowers or any Affiliate thereof for any amounts previously paid or advanced, as capital contributions or otherwise, to Gaming Operator in respect of any Gaming Liquidity Draw Requests.
(d) Subject to Section 2.6.3 hereof, the insufficiency of funds on deposit in the Cash Management Account shall not relieve any Borrower of Borrowers from the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever.
(de) All funds on deposit in the Cash Management Account following the occurrence and during the continuance continuation of an Event of Default may be applied by Lender to the Debt, and applied to the Debt in such any order, priority and proportions as Lender shall determine elect in its sole discretion from time to time until all Obligations of a monetary nature have been the Debt is paid in full, with any amounts remaining being disbursed, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full to (i) Mezzanine Lender for application disbursed in accordance with the terms of the Mezzanine Loan Documents 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 BorrowersNet Proceeds Allocation Agreement. Each Borrower Borrowers and Lender hereby agree and acknowledge that if (A) all of the Obligations have been paid in full, (B) satisfied and there are funds remaining in any of the Reserve Funds, and (C) the Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining funds in the Reserve Funds to Borrowers, but rather shall deliver such funds, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full, to Mezzanine Lender to funds shall be held and applied disbursed in accordance with the terms of the Mezzanine Loan Documents until the Mezzanine Debt is paid in full, with any balance delivered to BorrowersNet Proceeds Allocation Agreement.
(ef) Transfers of any Borrower’s Borrowers’ funds from any of the Reserve Funds or any other source to or for the benefit of any First Mezzanine Borrower Borrower(s) or any Second Mezzanine Borrower(s) shall constitute distributions to such First Mezzanine BorrowerBorrower(s), and deemed distributions by such First Mezzanine Borrower(s) to such Second Mezzanine Borrower(s), or by such First Mezzanine Borrower(s) to such Second Mezzanine Borrower(s), as applicable, and, in each case, must comply with the requirements as to distributions of in the Delaware Limited Liability Company Act or similar statute in the state of such Borrower’s organizationAct. The provisions of this Agreement, the Cash Management Agreement and the other Loan Documents shall not create a debtor-creditor relationship between any Borrower and First Mezzanine Lender and/or Second Mezzanine Lender.
(g) In the event that Borrowers require funds to satisfy critical Operating Expenses which must be paid prior to the next occurring Wednesday or Friday disbursement date, then Borrowers may request (which request may be in electronic form delivered to both Lender and any servicer) an early disbursement of funds; provided, that (x) Lender shall have no obligation to permit any such early disbursement, and any such approval or disapproval shall be in its sole and absolute discretion, (y) Borrower shall not be permitted to request funds for any expenses not already set forth in the applicable Operating Expense Request for such month, and (z) all other conditions to disbursement set forth in Section 2.6.2(b) must be satisfied (including, without limitation, that sufficient funds be on deposit in the Cash Management Account to satisfy all amounts due under clauses (ii) and (iii) of Section 2.6.2(b)).
(h) In the event that Working Capital Account Repayments are received in the Lockbox Account, such amount shall not be disbursed in accordance with Section 2.6.2(b) above, but such amounts shall be deposited directly into the Working Capital Reserve Account.
Appears in 1 contract
Samples: Loan Agreement (Bref Hr, LLC)
Cash Management Account. (a) Borrower shall cooperate with Lender shall establish and maintain Servicer in connection with the establishment and maintenance of a segregated Eligible Account (the “Cash Management Account”) to be held by Xxxxx Fargo Bank, N.A., as agent, Servicer in trust for the benefit of Lender, which Cash Management Account shall be under the sole dominion and control of Lender. The Cash Management Account shall be entitled “The Royal Bank of Scotland plcColumn Financial, Inc., as Lender, pursuant to Loan Agreement dated as of April 1June 21, 2010 — 2004—Cash Management Account.” Each Borrower hereby (i) hereby grants to Lender a first priority security interest in the Cash Management Account and all deposits at any time contained therein and the proceeds thereof, and (ii) will take all actions reasonably requested by Lender necessary to maintain in favor of Lender a perfected first priority security interest in the Cash Management Account, including, without limitation, executing and authorizing the filing of UCC-1 Financing Statements and continuations thereof. No Borrower shall will not in any way alter or modify the Cash Management AccountAccount and will notify Lender of the account number thereof. Lender and Servicer shall have the sole right to make withdrawals from the Cash Management Account and all costs and expenses for establishing and maintaining the Cash Management Account shall be paid by BorrowersBorrower.
(b) Provided no Event After the occurrence and during the continuance of Default shall have occurred and be continuinga Sweep Event, on each Payment Date (or, if such Payment Date is not a Business Day, on the immediately preceding Business Day) all funds on deposit in the Cash Management Account shall be applied by Lender to the payment of the following items in the order indicated:
(i) First, payments to Lender in respect of the Tax and Insurance Escrow Monthly Deposit Funds in accordance with the terms and conditions of Section 7.2 hereof;
(ii) Second, payment to Lender of the Monthly Debt Service Interest Payment Amount, applied first to the payment of interest computed at the Applicable Interest Rate with the remainder applied to the reduction of the Outstanding Principal BalanceRate;
(iii) Third, payment payments to Lender in respect of the Replacement FF&E Reserve Monthly Deposit Funds in accordance with the terms and conditions of Section 7.3.1 7.3 hereof;
(iv) Fourth, payment to Lender in respect of the Rollover Reserve Monthly Deposit in accordance with the terms and conditions of Section 7.4.1 hereof;
(v) Fifth, payment to Lender of any other amounts then due and payable under the Loan Documents Documents;
(other than v) Fifth, to the Outstanding Principal Balance)extent that, in respect of any Other Loan, there is, or Lender reasonably determines that there will be, a shortfall (each an “Other Loan Shortfall”) during the relevant calendar month in the items referred to (x) in clauses (i)-(vi) of Section 2.6.3(b) of the applicable Other Loan Agreements, funds sufficient to pay such Other Loan Shortfall;
(vi) Sixth, payment funds sufficient to Borrowers in an amount equal to the aggregate of (A) pay Operating Expenses (exclusive of management fees payable for the next calendar month pursuant to any Affiliated Manager) due and payable by Borrowers during the succeeding month, as set forth in the Approved Annual Budget, and (B) payments for Extraordinary Expenses approved by Lenderother than expenses paid, if anyor to be paid to, an Affiliated Manager;
(vii) Seventh, as a distribution permitted under applicable lawfunds sufficient to pay Extraordinary Expenses approved by Lender and which are then due and payable, payment to Mezzanine Lender of an amount equal to the Mezzanine Loan Debt Service Payment Amountif any;
(viii) Eighth, so long as no Event of Default funds sufficient to pay Operating Expenses paid, or Mezzanine Loan Event of Default has occurred and is continuingto be paid to, payment to any an Affiliated Manager of its management fees due under for the Management Agreement, including any management fees that were not paid next calendar month pursuant to such Affiliated Manager during the existence of any Event of Default or Mezzanine Loan Event of Default which no longer exists;Approved Annual Budget; and
(ix) Ninth, during a Cash Management Period, all amounts then remaining after payment of items (i) through (viii) (all amounts then remaining after payment of items (i) through (viii) being hereinafter referred to as “Excess Cash”), to the Excess Cash Reserve Fund in accordance with the terms and conditions of Section 7.5 hereof;
(x) Tenth, if no Cash Management Period is continuingLastly, and Lender has received notice from Mezzanine Lender that a Mezzanine Loan so long as an Event of Default is continuingdoes not exist, all payment of any excess amounts (“Excess Cash Flow”) to the Mezzanine Lender; and
(xi) Lastly, if no Cash Management Period is continuing and Lender has not received notice from Mezzanine Lender that any Mezzanine Loan Event of Default is continuing, all Excess Cash to BorrowersBorrower.
(c) The insufficiency of funds on deposit in the Cash Management Account shall not relieve any Borrower of the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever.
(d) All funds on deposit in the Cash Management Account during following the continuance occurrence of an Event of Default may be applied by Lender in such order, order and priority and proportions as Lender shall determine in its sole discretion until all Obligations of a monetary nature have been paid in full, with any amounts remaining being disbursed, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full to (i) Mezzanine Lender for application in accordance with the terms of the Mezzanine Loan Documents 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. Each Borrower and Lender hereby agree and acknowledge that if (A) all of the Obligations have been paid in full, (B) there are funds remaining in the Reserve Funds, and (C) the Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining funds in the Reserve Funds to Borrowers, but rather shall deliver such funds, as a distribution permitted in accordance with applicable law, within two (2) Business Days after all such Obligations have been paid in full, to Mezzanine Lender to be held and applied in accordance with the terms of the Mezzanine Loan Documents until the Mezzanine Debt is paid in full, with any balance delivered to Borrowersdiscretion.
(e) Transfers of any Borrower’s funds from any of the Reserve Funds or any other source to or for the benefit of Mezzanine Borrower shall constitute distributions to Mezzanine Borrower, and, in each case, must comply with the requirements as to distributions of the Delaware Limited Liability Company Act or similar statute in the state of such Borrower’s organization. The provisions of this Agreement, the Cash Management Agreement and the other Loan Documents shall not create a debtor-creditor relationship between any Borrower and Mezzanine Lender.
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