Deposits and Withdrawals. (a) Borrower represents, warrants and covenants that: (i) Within ten (10) Business Days of the execution of this Agreement, Borrower shall notify and advise each Tenant under each Lease (whether such Lease is presently effective or executed after the date hereof) to send directly to the Lockbox all payments of Rents or any other item payable under such Leases pursuant to an instruction letter substantially in the form of Exhibit D attached hereto (a “Tenant Direction Letter”). If Borrower fails to provide any such notice (and without prejudice to Lender’s rights with respect to such default), Lender shall have the right, and Borrower hereby grants to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Direction Letter; (ii) Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the Property to deliver all payments due under such accounts to the Lockbox. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner; (iii) All Rents or other income from the Property shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of a Tenant Direction Letter, be deposited in the Lockbox Account within two (2) Business Day of receipt; (iv) Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, neither Borrower nor Manager shall terminate, amend, revoke or modify any Tenant Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant to pay any amount in any manner other than as provided in the related Tenant Direction Letter; and (v) So long as any portion of the Debt remains outstanding, neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Lockbox Account into which revenues from the ownership and operation of the Property are deposited. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this Agreement. (b) Borrower hereby irrevocably authorizes Lender to transfer, or cause to be transferred, and Lender shall transfer, on each Business Day by wire transfer or other method of transfer mutually agreeable to Lockbox Bank and Lender of immediately available funds, all collected and available balances in the Lockbox Account to the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(c). (c) On each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month during which the first Scheduled Payment Date occurs, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor: (i) funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6; (ii) funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender; (iii) funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items; (iv) funds sufficient to pay Lockbox Bank for all costs and expenses incurred by Lockbox Bank in connection with the maintenance and administration of the Lockbox Account; (v) funds sufficient to pay the applicable TI/LC Monthly Deposit shall be allocated to the Leasing Reserve Account to be held and disbursed in accordance with Section 9.5; and (vi) provided no Event of Default exist, the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred to Borrower pursuant to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition of income or excise taxes. (d) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document). (e) If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.
Appears in 4 contracts
Samples: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Deposits and Withdrawals. (a) Borrower represents, warrants and covenants that:
(i) Within ten (10) Business Days of Concurrently with the execution of this Agreement, Agreement Borrower shall notify has executed and advise each Tenant under each Lease (whether such Lease is presently effective or executed after the date hereof) delivered to send directly to the Lockbox all payments of Rents or any other item payable under such Leases pursuant to Lender an instruction letter substantially in the form of Exhibit D B attached hereto addressed to American Express (a the “Tenant Direction Letter”). If Borrower fails to provide any such notice (and without prejudice to Upon the occurrence of an Event of Default or upon commencement of the Cash Management Period, Lender or Lender’s rights with respect to such default), Lender agent shall have the right, and Borrower hereby grants right to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of deliver the Debt remains outstanding), to sign and deliver a Tenant Direction LetterLetter to American Express and all payments of Rent and other items payable under the American Express Lease shall thereafter be sent directly to the Cash Management Account;
(ii) On the occurrence of an Event of Default or the commencement of the Cash Management Period Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the Property to deliver all payments due under such accounts to the LockboxCash Management Account. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;
(iii) All Rents or other income from the Property received after the commencement of the Cash Management Period or the occurrence of an Event of Default shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of a the Tenant Direction Letter, be deposited in the Lockbox Cash Management Account within two one (21) Business Day of receipt;
(iv) Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, during the Cash Management Period or the continuance of an Event of Default neither Borrower nor Manager shall terminate, amend, revoke or modify any the Tenant Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant American Express to pay any amount in any manner other than as provided in the related Tenant Direction Letter; and
(v) So long as any portion of the Debt remains outstanding, during the Cash Management Period or during the continuance of an Event of Default neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Lockbox Cash Management Account into which revenues from the ownership and operation of the Property are deposited. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this Agreement.
(b) Borrower hereby irrevocably authorizes Lender to transfer, or cause to be transferred, and Lender shall transfer, on each Business Day by wire transfer or other method of transfer mutually agreeable to Lockbox Bank and Lender of immediately available funds, all collected and available balances in the Lockbox Account to the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(c).
(c) On each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month during which the first Scheduled Payment Date occurs, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor:
(i) funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(ii) funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;
(iii) funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(iv) funds sufficient to pay Lockbox Bank for all costs and expenses incurred by Lockbox Bank in connection with the maintenance and administration of the Lockbox Account;
(v) funds sufficient to pay the applicable TI/LC Monthly Deposit shall be allocated to the Leasing Reserve Account to be held and disbursed in accordance with Section 9.5; and
(vi) provided no Event of Default exist, the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred to Borrower pursuant to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition of income or excise taxes.
(d) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).
(e) If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.
Appears in 3 contracts
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc), Loan Agreement (Inland Western Retail Real Estate Trust Inc), Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Deposits and Withdrawals. (a) Borrower represents, warrants and covenants that:
(i) Within ten (10) Business Days of Concurrently with the execution of this Agreement, Borrower shall notify and advise each Tenant under each Lease (whether such Lease is presently effective or executed after the date hereof) Manager to send deposit directly to into the Lockbox Account all payments of Rents or any other item payable under such Leases pursuant to an instruction letter substantially in the form of Exhibit D A attached hereto (a “Tenant Direction Letter”"RENT DIRECTION LETTER"). If Borrower fails to provide any such notice (and without prejudice to Lender’s 's rights with respect to such default), Lender shall have the right, and Borrower hereby grants to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Rent Direction Letter;
(ii) Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property or with whom Borrower or Manager does business on an “"accounts receivable” " basis with respect to the Property to deliver all payments due under such accounts to the LockboxLockbox Account. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;
(iii) All Rents or other income from the Property shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of a Tenant Rent Direction Letter, be deposited in the Lockbox Account within two one (21) Business Day of receipt;
(iv) Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, neither Borrower nor Manager shall not terminate, amend, revoke or modify any Tenant Rent Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant Manager to pay any amount in any manner other than as provided in the related Tenant Rent Direction Letter; and
(v) So long as any portion of the Debt remains outstanding, neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Lockbox Account into which revenues from the ownership and operation of the Property are deposited. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this Agreement.
(b) Borrower hereby irrevocably authorizes Lender to transferProvided no Event of Default has occurred, or cause to be transferredat all times other than during a Cash Management Period, and Lender shall transferLockbox Bank shall, on each Business Day Day, withdraw all collected and available funds in excess of $2,500 (funds are not available if, in the reasonable determination of Lockbox Bank, such funds are subject to a bank hold or freeze (pursuant to applicable Legal Requirements), dispute or legal process preventing their withdrawal) held in the Lockbox Account and disburse such funds to the Borrower Account. Upon the occurrence and during the continuance of a Cash Management Period, Lockbox Bank shall (and Lender shall instruct Lockbox Bank to), on each Business Day, withdraw all collected and available funds (funds are not available if, in the reasonable determination of Lockbox Bank, such funds are subject to a bank hold or freeze (pursuant to applicable Legal Requirements), dispute or legal process preventing their withdrawal) held in the Lockbox Account and transfer by wire transfer or other method of transfer mutually agreeable to Lockbox Bank and Lender of immediately available funds, all collected and available balances in the Lockbox Account to the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(c). Provided no Event of Default has occurred and is continuing, upon the earlier to occur of (a) payment in full of the Debt or (b) the discontinuation of a Cash Management Period, Lockbox Bank shall no longer transfer funds in the Lockbox Account to the Cash Management Account in accordance with this subsection (b) and shall transfer funds (if any) in the Lockbox Account to the Borrower Account or, upon payment in full of the Debt, as otherwise directed by Borrower. In the event a Cash Management Period occurs three times during the term of the Loan and if required by the Lockbox Bank, Borrower shall not be entitled to any rights to the withdrawal of funds from the Lockbox Account during the remaining term of the Loan, the Cash Management Period shall continue, and Lender shall continue to have the right to the withdrawal of funds from the Lockbox Account until the Debt is paid in full.
(c) On During a Cash Management Period, on each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month immediately following the month during which the first Scheduled Payment Date occursCash Management Period commences, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefortherefor and Lender may, at its option, withdraw or allocate such funds as follows:
(i) during a Tax and Insurance Reserve Period, funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(ii) funds sufficient to pay the Monthly Payment Amount (or an amount up to the entire amount of the Debt upon an acceleration of the Loan in accordance with the terms hereof), shall be withdrawn and paid to Lender;
(iii) during a Replacement Reserve Period, funds sufficient to pay the Replacement Reserve Monthly Deposit shall be allocated to the Replacement Reserve Account to be held and disbursed in accordance with Section 9.5;
(iv) funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(ivv) funds sufficient to pay Lockbox Bank for all costs and expenses incurred by Lockbox Bank in connection with the maintenance and administration of the Lockbox Account;
(vvi) funds sufficient to pay Lender or any Loan servicer, as applicable, the applicable TI/LC Monthly Deposit shall be allocated to customary fees and expenses incurred in connection with maintaining the Leasing Reserve Account to be held and disbursed in accordance with Section 9.5Cash Management Account; and
(vivii) provided no Event of Default exist, funds in an amount equal to the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be deposited in the Excess Cash Reserve Account to be held and disbursed in accordance with Section 9.7. Upon the discontinuance of a Cash Management Period, funds (if any) on deposit in the Excess Cash Reserve Account shall be transferred to Borrower pursuant to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition of income or excise taxesBorrower's Account.
(d) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s 's servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (vvi) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).
(e) If Notwithstanding anything to the contrary contained herein, if an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s 's sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s 's right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.
Appears in 2 contracts
Samples: Loan Agreement (Manufactured Home Communities Inc), Loan Agreement (Manufactured Home Communities Inc)
Deposits and Withdrawals. (a) Borrower represents, warrants and covenants that:
(i) Within ten (10) Business Days of Concurrently with the execution of this Agreement, Borrower shall notify and advise each Tenant under each Lease (whether such Lease is presently effective or executed after the date hereof) to send directly to the Lockbox make all payments of Rents or and any other item payable under such Leases directly to the Deposit Account or a post office address maintained by Deposit Bank for processing deposits to the Deposit Account, as applicable, pursuant to an instruction letter substantially in the form of Exhibit D B attached hereto (a “"Tenant Direction Letter”"). If Borrower fails to provide any such notice (and without prejudice to Lender’s rights with respect to such default)During the continuance of an Event of Default, Lender shall have the right, and Borrower hereby grants to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Direction Letter;
(ii) Borrower shall, and shall cause any Manager to, instruct all Persons that maintain open accounts with Borrower or any Manager with respect to the Property or with whom Borrower or any Manager does business on an “"accounts receivable” " basis with respect to the Property to deliver all payments due under such accounts directly to the LockboxDeposit Account or a post office address maintained by Deposit Bank for processing deposits to the Deposit Account, as applicable. Neither Borrower nor any Manager shall direct any such Person to make payments due under such accounts in any other manner;
(iii) All Rents or other income from the Property shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or any Manager, and (C) if received by Borrower or any Manager notwithstanding the delivery of a Tenant Direction Letter, be deposited in the Lockbox Deposit Account within two one (21) Business Day of receipt;
(iv) Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, neither Borrower nor any Manager shall terminate, amend, revoke or modify any Tenant Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant to pay any amount in any manner other than as provided in the related Tenant Direction Letter; and
(v) So long as any portion of the Debt remains outstanding, neither none of Borrower, any Manager nor or any other Person shall open or maintain any accounts other than the Lockbox Deposit Account into which revenues from the ownership and operation of the Property are deposited. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this Agreement.
(b) Borrower hereby irrevocably authorizes Lender to instruct Deposit Bank to transfer, or cause to be transferred, on each Business Day during a Cash Sweep Period by wire transfer or other method of transfer mutually agreeable to Deposit Bank and Lender of immediately available funds, all collected and available balances in the Deposit Account (subject to any minimum retained or "peg" balance that may be required pursuant to the terms of the Deposit Account Control Agreement) to the Cash Management Account to be held until disbursed pursuant to the terms of the Cash Management Agreement. Notwithstanding anything to the contrary contained herein, provided no Event of Default or Cash Sweep Period has occurred and is continuing, Lender shall instruct Deposit Bank to transfer, or cause to be transferred, on each Business Day by wire transfer or other method of transfer mutually agreeable to Lockbox Deposit Bank and Lender Borrower of immediately available funds, all collected and available balances in the Lockbox Deposit Account (subject to any minimum retained or "peg" balance that may be required pursuant to the Cash Management terms of the Deposit Account Control Agreement) to be held until disbursed by Lender pursuant to Section 10.2(c)the Borrower's operating account.
(c) On each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month during which the first Scheduled Payment Date occurs, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor:
(i) funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(ii) funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;
(iii) funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(iv) funds sufficient to pay Lockbox Bank for all costs and expenses incurred by Lockbox Bank in connection with the maintenance and administration of the Lockbox Account;
(v) funds sufficient to pay the applicable TI/LC Monthly Deposit shall be allocated to the Leasing Reserve Account to be held and disbursed in accordance with Section 9.5; and
(vi) provided no Event of Default exist, the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred to Borrower pursuant to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition of income or excise taxes.
(d) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available fundsfunds which may be necessary to pay all amounts due from time to time under the Loan Documents, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document)Bank.
(ed) If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Deposit Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s 's sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s 's right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.
Appears in 2 contracts
Samples: Loan Agreement (MVP REIT, Inc.), Loan Agreement (MVP REIT II, Inc.)
Deposits and Withdrawals. (a) Borrower represents, warrants and covenants that:
(i) Within ten (10) Business Days of the execution of this Agreement, Borrower shall notify and advise each Tenant under each Lease (whether such Lease is presently effective or executed after the date hereof) to send directly to the Lockbox all payments of Rents or any other item payable under such Leases pursuant to an instruction letter substantially in the form of Exhibit D attached hereto (a “Tenant Direction Letter”). If Borrower fails to provide any such notice (and without prejudice to Lender’s rights with respect to such default), Lender shall have the right, and Borrower hereby grants to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Direction Letter;
(ii) Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the Property to deliver all payments due under such accounts to the Lockbox. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;
(iii) All Rents or other income from the Property shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of a Tenant Direction Letter, be deposited in the Lockbox Account within two (2) Business Day of receipt;
(iv) Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, neither Borrower nor Manager shall terminate, amend, revoke or modify any Tenant Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant to pay any amount in any manner other than as provided in the related Tenant Direction Letter; and
(v) So long as any portion of the Debt remains outstanding, neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Lockbox Account into which revenues from the ownership and operation of the Property are deposited. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this Agreement.
(b) Borrower hereby irrevocably authorizes Lender to transfer, or cause to be transferred, and Lender shall transfer, on each Business Day by wire transfer or other method of transfer mutually agreeable to Lockbox Bank and Lender of immediately available funds, all collected and available balances in the Lockbox Account to the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(c).
(c) On each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month during which the first Scheduled Payment Date occurs, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor:
(i) funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(ii) funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;
(iii) funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(iv) funds sufficient to pay Lockbox Bank for all costs and expenses incurred by Lockbox Bank in connection with the maintenance and administration of the Lockbox Account;
(v) funds sufficient to pay the applicable TI/LC Monthly Deposit shall be allocated to the Leasing Reserve Account to be held and disbursed in accordance with Section 9.5; and
(vi) provided no Event of Default existexists, the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred to Borrower pursuant to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition of income or excise taxes.
(d) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).
(e) If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.
Appears in 2 contracts
Samples: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc)
Deposits and Withdrawals. (a) Borrower represents, warrants and covenants that:
(i) Within ten (10) Business Days of Concurrently with the execution of this Agreement, Borrower shall notify and advise each Tenant under each Lease (whether such in effect as of the date hereof and Borrower shall notify and advise each Tenant under any Lease is presently effective or executed after the date hereof) hereof to send directly to the Lockbox all payments of Rents or any other item payable under such Leases pursuant to an instruction letter substantially in the form of Exhibit D B attached hereto (a “Tenant Direction Letter”). If Borrower fails to provide any such notice (and without prejudice to Lender’s rights with respect to such default), Lender shall have the right, and Borrower hereby grants to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Direction Letter;
(ii) Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the Property to deliver all payments due under such accounts to the Lockbox. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;
(iii) All Rents or other income from the Property shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of a Tenant Direction Letter, be deposited in the Lockbox Account within two one (21) Business Day of receipt;
(iv) Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, neither Borrower nor Manager shall terminate, amend, revoke or modify any Tenant Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant to pay any amount in any manner other than as provided in the related Tenant Direction Letter; and
(v) So long as any portion of the Debt remains outstanding, neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Lockbox Account into which revenues from the ownership and operation of the Property are deposited. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this Agreement.
(b) Borrower hereby irrevocably authorizes Lender to instruct Lockbox Bank to transfer, or cause to be transferred, and Lender shall transfer, on each Business Day by wire transfer or other method of transfer mutually agreeable to Lockbox Bank and Lender of immediately available funds, all collected and available balances in the Lockbox Account (subject to any minimum retained or “peg” balance that may be required pursuant to the terms of the Lockbox Agreement) to the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(c10.2(d).
(c) On Provided no Event of Default shall have occurred and be continuing, on or before each Scheduled Payment Date Lender shall apply all funds on deposit in the Cash Management Account to the following subaccounts of the Cash Management Account in the following amounts and order of priority:
(i) First, to the Tax and Insurance Reserve Subaccount, in an amount up to the monthly deposit to the Tax and Insurance Reserve Account due on the next Scheduled Payment Date;
(ii) Second, to the Account Maintenance Subaccount, up to the amount due and payable by Borrower to Lockbox Bank or Lender pursuant to Section 10.1(e) hereof;
(iii) Third, to the Debt Service Subaccount, in an amount up to the Monthly Payment Amount due on the next Scheduled Payment Date;
(iv) Fourth, to the Replacement Reserve Subaccount, in an amount up to the Replacement Reserve Monthly Deposit due on the next Scheduled Payment Date;
(v) Fifth, to the Leasing Reserve Subaccount, in an amount up to the Leasing Reserve Monthly Deposit due on the next Scheduled Payment Date and any Termination Fee Deposit due;
(vi) Sixth, to the Debt Service Subaccount, in an amount up to any interest accruing at the Default Rate, late payment charges, and any other sums due and payable to Lender under the Note, this Agreement or the other Loan Documents;
(vii) Seventh, during the continuation of a Cash Sweep Period, to the Operating Expense Subaccount, up to the amount approved pursuant to Section 9.7(b) for disbursement to Borrower for Operating Expenses on the next Scheduled Payment Date;
(viii) Eighth, during the continuation of a Cash Sweep Period, to the Extraordinary Expense Subaccount, up to the amount approved pursuant to Section 9.7(b) for disbursement to Borrower for Extraordinary Expenses on the next Scheduled Payment Date; and
(ix) Ninth, during the continuation of a Cash Sweep Period, to the Excess Cash Subaccount, otherwise to the Borrower Subaccount, all amounts remaining in the Cash Management Account after all prior allocations under this Section 10.2(c) (the “Excess Cash”).
(d) Provided no Event of Default shall have occurred and be continuing, on each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month during which the first Scheduled Payment Date occurs, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received all funds on deposit in the Cash Management Account, in each case to the extent that sufficient Account and disburse such funds remain thereforas follows:
(i) funds sufficient to pay the monthly deposits to Funds on deposit in the Tax and Insurance Reserve Account shall be allocated Subaccount, to Lender for deposit into the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(ii) funds sufficient Funds on deposit in the Account Maintenance Subaccount, to pay the Monthly Payment Amount shall be withdrawn and paid Lockbox Bank or Lender, as applicable, for amounts payable pursuant to LenderSection 10.1(e);
(iii) funds sufficient Funds on deposit in the Debt Service Subaccount, to pay Lender for payment of the Monthly Payment Amount due on such Scheduled Payment Date together with any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Note, this Agreement or the other Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(iv) funds sufficient Funds on deposit in the Replacement Reserve Subaccount, to pay Lockbox Bank Lender for all costs deposit into the Replacement Reserve Account to be held and expenses incurred by Lockbox Bank disbursed in connection accordance with the maintenance and administration of the Lockbox AccountSection 9.5;
(v) funds sufficient Funds on deposit in the Leasing Reserve Subaccount, to pay the applicable TI/LC Monthly Deposit shall be allocated to Lender for deposit into the Leasing Reserve Account to be held and disbursed in accordance with Section 9.5;
(vi) During the continuation of a Cash Sweep Period, funds on deposit in the Operating Expense Subaccount, to Borrower’s Account for payment of Operating Expenses for such month pursuant to Section 9.7(b);
(vii) During the continuation of a Cash Sweep Period, funds on deposit in the Extraordinary Expense Subaccount, to Borrower’s Account for payment of Extraordinary Expenses for such month pursuant to Section 9.7(b);
(viii) During the continuation of a Cash Sweep Period, funds on deposit in the Excess Cash Subaccount, to Lender for deposit into the Excess Cash Reserve Account to be held and disbursed in accordance with Section 9.7(a); and
(viix) provided no Event of Default exist, the balance (if any) remaining Funds on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred Borrower Subaccount, to Borrower pursuant to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition of income or excise taxesBorrower’s Account.
(de) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of allocate the withdrawals and allocations described in full amounts required pursuant to Section 10.2(c)(i) through (vvi) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).
(ef) If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.
Appears in 1 contract
Deposits and Withdrawals. (a) Borrower represents, warrants and covenants that:
(i) Within ten (10) Business Days of Concurrently with the execution of this AgreementAgreement or, in the case of Leases, as and when such applicable Lease is executed, Borrower shall (I) notify and advise each Tenant under each Lease (whether such Lease is presently effective or executed after the date hereofClosing Date) to send directly to the Lockbox all payments of Rents or any other item payable under such Leases pursuant to an instruction letter in the form of Exhibit B attached hereto (a “Tenant Direction Letter”) and (II) deliver a notice substantially in the form of Exhibit D attached C hereto to all credit card companies to pay all receipts payable with respect to the Property directly into the Lockbox Account (a “Tenant Credit Card Direction Letter”). If Borrower fails to provide any such notice (and without prejudice to Lender’s rights with respect to such defaultany Event of Default), Lender shall have the right, and Borrower hereby grants to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Credit Card Direction Letter; provided, however, for purposes of this Section 10.2(a)(i), a Lease shall not be deemed to include any renting and reservation by hotel guests of guest rooms, meeting rooms and/or banquet rooms, or license agreements or contracts entered into with licensees or vendors in the ordinary course of Borrower’s business;
(ii) To the extent the same does not result in a material disruption to Borrower’s or Manager’s operation of the Property, Borrower shall, and shall cause Manager (if any) to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the Property to deliver all payments due under such accounts to the Lockbox. Neither To the extent the same does not result in a material disruption to Borrower’s or Manager’s operation of the Property, neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;
(iii) All Rents or other income from the Property shall (A) be deemed additional security for payment of the Debt and shall be held in trust as security for Lender’s interest in the benefit, and as the property, of LenderLoan, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of a Tenant Direction Letter (if applicable) and/or a Credit Card Direction Letter, be deposited in the Lockbox Account within two three (23) Business Day Days of Borrower and/or Manager becoming aware of such receipt;
(iv) Without the prior written consent of Lender, so long as any portion of the Debt remains outstandingoutstanding or until the earlier release of the Lien of the Mortgage (and all related obligations) in accordance with the terms of this Agreement and the other Loan Documents and the Mezzanine Loan in accordance with the terms of the Mezzanine Loan Documents, neither Borrower nor Manager shall terminate, amend, revoke or modify any Tenant Direction Letter (if applicable) and/or Credit Card Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct material respect which may impair the rights of Lender hereunder or cause any Tenant or credit card company to pay any amount in any manner other than as provided in the related Tenant Direction Letter (if applicable) and/or Credit Card Direction Letter; and
(v) So long as any portion of the Debt remains outstandingoutstanding or until the earlier release of the Lien of the Mortgage (and all related obligations) in accordance with the terms of this Agreement and the other Loan Documents, neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Lockbox Account into which revenues from the ownership and operation of the Property are deposited. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this Agreement.
(b) Borrower hereby irrevocably authorizes Lender to instruct Lockbox Bank to transfer, or cause to be transferred, and Lender shall transfer, on each Business Day by wire transfer or other method of transfer mutually agreeable to Lockbox Bank and Lender of immediately available funds, all collected and available balances in the Lockbox Account (subject to any minimum retained or “peg” balance that may be required pursuant to the terms of the Lockbox Agreement) to the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(c10.2(d).
(c) On Provided no Event of Default shall have occurred and be continuing, on the first Business Day of each Scheduled Payment Date calendar week, Lender shall apply all funds on deposit in the Cash Management Account to the following subaccounts of the Cash Management Account in the following amounts and order of priority:
(and if such day is not a Business Dayi) First, then to the Custodial Funds Subaccount to pay Custodial Funds relating to the immediately preceding day calendar week;
(ii) Second, to the Operating Expense Subaccount, up to the amount approved pursuant to Section 9.7(b) for disbursement to Borrower for Operating Expenses; provided, however, any deposits to the Operating Expense Subaccount pursuant to this Section 10.2(c)(ii) shall be reduced by the amount of any then outstanding cumulative Negative Monthly Budget Variance; Immediately following the transfers described in (i) and (ii) above, all funds then in the Subaccounts described therein shall be transferred by Lender to the Borrower’s Account. Subject to the terms of Section 10.2(f), at all times other than during the calendar week in which is the Payment Date occurs, all sums other than as provided in Section 10.2(c)(i) and (ii) above shall remain in the Cash Management Account.
(iii) Third, to the Extraordinary Expense Subaccount, up to the amount approved pursuant to Section 9.7(b) for disbursement to Borrower for Extraordinary Expenses;
(iv) Fourth, during the calendar week in which the Payment Date occurs, to the Borrower Subaccount, in an amount equal to the then current Positive Monthly Budget Variance, if any;
(v) Fifth, during the calendar week in which the Payment Date occurs, to the Tax and Insurance Reserve Subaccount, in an amount up to the monthly deposit to the Tax and Insurance Reserve Account due on the next Payment Date;
(vi) Sixth, during the calendar week in which the Payment Date occurs, to the Debt Service Subaccount, in an amount up to the Debt Service due on the next Payment Date;
(vii) Seventh, during the calendar week in which the Payment Date occurs, to the Debt Service Subaccount, other than as paid pursuant to subsection (vi) above, in an amount up to any interest accruing at the Default Rate, late payment charges, and any other sums due and payable to Lender under the Note, this Agreement or the other Loan Documents;
(viii) Eighth, during the calendar week in which the Payment Date occurs, to the Mezzanine Loan Account, in an amount to pay (A) the Monthly Mezzanine Debt Service Payment Amount, (B) any Net Liquidation Proceeds After Debt Service, to be applied in accordance with the Mezzanine Loan Agreement and (C) any other sums then due and payable to Mezzanine Lender under the Mezzanine Loan Documents;
(ix) Ninth, during the calendar week in which the Payment Date occurs, to the Replacement Reserve Subaccount, in an amount up to the Replacement Reserve Monthly Deposit due on the next Payment Date;
(x) Tenth, during the calendar week in which the Payment Date occurs, to the Seasonality Reserve Subaccount, in an amount up to the Additional Seasonality Reserve Deposit due on the next Payment Date;
(xi) Eleventh, to the Account Maintenance Subaccount, up to the amount due and payable by Borrower to Lockbox Bank or Lender pursuant to Section 10.1(e) hereof; and
(xii) Twelfth, during the continuation of a Cash Sweep Period, to the Excess Cash Subaccount, otherwise (1) if Lender has received written notice from Mezzanine Lender that a Mezzanine Default has occurred and until Lender receives from Mezzanine Lender written confirmation of the revocation of such notice, to an account designated by Mezzanine Lender or (2) otherwise, to the Borrower Subaccount, all amounts remaining in the Cash Management Account after all prior allocations under this Section 10.2(c) (the “Excess Cash”).
(d) Provided no Event of Default shall have occurred and be continuing, on the first Business DayDay of each calendar month (or, only in the case of the Operating Expense Subaccount and Custodial Funds in the Custodial Funds Subaccount, on the first Business Day of each week commencing on January 28, 2013) commencing the month week during which the first Scheduled Payment Date occurs, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received all funds on deposit in the Cash Management Account, in each case to the extent that sufficient Account and disburse such funds remain thereforas follows:
(i) funds sufficient to pay the monthly deposits to Funds on deposit in the Tax and Insurance Reserve Account shall be allocated Subaccount, to Lender for deposit into the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(ii) funds sufficient Funds on deposit in the Account Maintenance Subaccount, to pay the Monthly Payment Amount shall be withdrawn and paid Lockbox Bank or Lender, as applicable, for amounts payable pursuant to LenderSection 10.1(e);
(iii) funds sufficient Funds on deposit in the Operating Expense Subaccount, to Borrower’s Account for payment of Operating Expenses for such month pursuant to Section 9.7(b);
(iv) Funds on deposit in the Custodial Funds Subaccount, to Borrower’s Account for payment of Custodial Funds for such week;
(v) Funds on deposit in the Replacement Reserve Subaccount, to Lender for deposit into the Replacement Reserve Account to be held and disbursed in accordance with Section 9.5;
(vi) Funds on deposit in the Seasonality Reserve Subaccount, to Lender for deposit into the Seasonality Reserve Account to be held and disbursed in accordance with Section 9.10;
(vii) Funds on deposit in the Debt Service Subaccount, to Lender for payment of the Debt Service due on such Payment Date;
(viii) Funds on deposit in the Debt Service Subaccount to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Note, this Agreement or the other Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(ivix) funds sufficient Funds on deposit in the Mezzanine Loan Account shall be disbursed to pay Lockbox Bank for all costs and expenses incurred by Lockbox Bank Mezzanine Lender to be applied in connection accordance with the maintenance and administration of the Lockbox AccountMezzanine Loan Agreement;
(vx) Funds on deposit in the Extraordinary Expense Subaccount, to Borrower’s Account for payment of Extraordinary Expenses for such month pursuant to Section 9.7(b);
(xi) During the continuation of a Cash Sweep Period, funds sufficient on deposit in the Excess Cash Subaccount to pay Lender for deposit into the applicable TI/LC Monthly Deposit shall be allocated to the Leasing Excess Cash Reserve Account to be held and disbursed in accordance with Section 9.59.7(a); and
(vixii) provided no Event of Default exist, the balance (if any) remaining Funds on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred Borrower Subaccount, to Borrower pursuant to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition of income or excise taxesBorrower’s Account.
(de) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).
(ef) If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.
Appears in 1 contract
Deposits and Withdrawals. (a) Borrower represents, warrants and covenants that:
(i) Within ten (10) Business Days of Concurrently with the execution of this Agreement, Borrower shall notify and advise each Tenant under each Lease (whether such Lease is presently effective or executed after the date hereof) to send directly to the Lockbox all payments of Rents or any other item payable under such Leases pursuant to an instruction letter substantially in the form of Exhibit D attached hereto (a “Tenant Direction Letter”"TENANT DIRECTION LETTER"). If Borrower fails to provide any such notice (and without prejudice to Lender’s 's rights with respect to such default), Lender shall have the right, and Borrower hereby grants to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Direction Letter;
(ii) Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property or with whom Borrower or Manager does business on an “"accounts receivable” " basis with respect to the Property to deliver all payments due under such accounts to the Lockbox. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;
(iii) All Rents or other income from the Property shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of a Tenant Direction Letter, be deposited in the Lockbox Account within two (2) Business Day of receipt;
(iv) Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, neither Borrower nor Manager shall terminate, amend, revoke or modify any Tenant Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant to pay any amount in any manner other than as provided in the related Tenant Direction Letter; and
(v) So long as any portion of the Debt remains outstanding, neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Lockbox Account into which revenues from the ownership and operation of the Property are deposited. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this Agreement.
(b) Borrower hereby irrevocably authorizes Lender to transfer, or cause to be transferred, and Lender shall transfer, on each Business Day by wire transfer or other method of transfer mutually agreeable to Lockbox Bank and Lender of immediately available funds, all collected and available balances in the Lockbox Account to the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(c).
(c) On each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month during which the first Scheduled Payment Date occurs, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor:
(i) funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(ii) funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;
(iii) funds sufficient to pay the Replacement Reserve Monthly Deposit shall be allocated to the Replacement Reserve Account to be held and disbursed in accordance with Section 9.5;
(iv) funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(ivv) funds sufficient to pay Lockbox Bank for all costs and expenses incurred by Lockbox Bank in connection with the maintenance and administration of the Lockbox Account;
(vvi) funds sufficient to pay Operating Expenses (to the applicable TI/LC Monthly Deposit extent actually incurred) for the following month incurred in accordance with the related Annual Budget shall be allocated to the Leasing Operating Expense Reserve Account to be held and disbursed in accordance with Section 9.5; and9.8;
(vivii) funds sufficient to pay any Extraordinary Expenses for the following month which have been approved by Lender shall be allocated to the Extraordinary Expense Account to be held and disbursed in accordance with Section 9.8;
(viii) provided no Event of Default existhas occurred and is continuing, funds to pay the debt service on the Mezzanine Loan pursuant to the direction letter from Mezzanine Lender;
(ix) provided no Event of Default exist and Lender has not received written notice from Mezzanine Lender that a Mezzanine Event of Default exists, funds in an amount equal to the Junior Subordinated Management Fee shall be disbursed to Manager, it being understood that if there are insufficient funds to pay the Junior Subordinated Management Fee in any month, such unpaid fee (or portion thereof) shall be waived by Manager and Manager shall have no rights to pursue such unpaid fee (or portion thereof);
(x) provided no Event of Default exists, if Lender has received written notice from Mezzanine Lender that a Mezzanine Event of Default exists, funds in an amount equal to the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred to Mezzanine Lender; and
(xi) provided no Event of Default exist and Lender has not received written notice from Mezzanine Lender that a Mezzanine Event of Default exists, the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred to Borrower pursuant to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including holders in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition of income or excise taxes.
(d) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s 's servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (vvii) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any -88- default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).
(e) If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s 's sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s 's right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.
Appears in 1 contract
Deposits and Withdrawals. 1. If the Market Value of the Reg 114 Eligible Collateral held in the Reg 114 Trust Account is less than the Reg 114 Minimum Collateral Requirement, the Reinsurer shall deposit into the Reg 114 Trust Account additional Reg 114 Eligible Collateral with a Market Value equal to such deficiency within fifteen (a15) Borrower representsBusiness Days of its calculation of the Reg 114 Minimum Collateral Requirement or the determination of such amount by the Independent Actuarial Firm in accordance with Paragraph I above. If the Market Value of the Reg 114 Eligible Collateral held in the Reg 114 Trust Account is in excess of the Reg 114 Minimum Collateral Requirement, warrants and covenants thatso long as the Reinsurer is not in default of any of its obligations under this Agreement or any Transaction Agreement, the Reinsurer may request such excess funds be returned to the Reinsurer within fifteen (15) Business Days as set forth in the Reg 114 Trust Agreement, subject to the Reinsurer’s obligation to maintain at all times in the Reg 114 Trust Account the Reg 114 Minimum Collateral Requirement.
2. If the Market Value of the Non-Reg 114 Eligible Collateral held in the Non-Reg 114 Trust Account is less than the Non-Reg 114 Minimum Collateral Requirement, the Reinsurer shall deposit into the Non-Reg 114 Trust Account additional Non-Reg 114 Eligible Collateral with a Market Value equal to such deficiency within fifteen (15) Business Days of its calculation of the Non-Reg 114 Minimum Collateral Requirement or the determination of such amount by the Independent Actuarial Firm in accordance with paragraph I above. If the Market Value of the Non-Reg 114 Eligible Collateral held in the Non-Reg 114 Trust Account is in excess of the Non-Reg 114 Minimum Collateral Requirement, so long as the Reinsurer is not in default of any of its obligations under this Agreement or any Transaction Agreement, the Reinsurer may request such excess funds be returned to the Reinsurer within fifteen (15) Business Days as set forth in the Non-Reg 114 Trust Agreement, subject to the Reinsurer’s obligation to maintain at all times in the Non-Reg 114 Trust Account the Non-Reg 114 Minimum Collateral Requirement.
(A) The Company shall notify the Reinsurer in writing of any dispute concerning the calculation of the Market Value of the assets (the “Dispute Notice”) held in the Trust Accounts. In the event of such a dispute:
(i) Within The Parties’ respective chief financial offers shall first confer to resolve the dispute in good faith;
(ii) If the action set forth in (i) above does not resolve the dispute within ten (10) Business Days of the execution of this AgreementDispute Notice, Borrower then the Parties’ respective chief executive offers shall notify and advise each Tenant under each Lease (whether such Lease is presently effective or executed after confer to resolve the date hereof) to send directly to the Lockbox all payments of Rents or any other item payable under such Leases pursuant to an instruction letter substantially dispute in the form of Exhibit D attached hereto (a “Tenant Direction Letter”). If Borrower fails to provide any such notice (and without prejudice to Lender’s rights with respect to such default), Lender shall have the right, and Borrower hereby grants to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Direction Letter;
(ii) Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the Property to deliver all payments due under such accounts to the Lockbox. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;good faith; and
(iii) All Rents or other income from If the Property shall actions set forth in (Ai) be deemed additional security for payment and (ii) above do not resolve the dispute within twenty (20) Business Days of the Debt and Dispute Notice, then the Parties shall be submit the dispute to (x) a Market Value Dispute Valuation Firm (as mutually agreed in writing between the Parties), or (y) another such third-party internationally recognized asset management firm with prior experience in valuing the types of assets held in trust for the benefit, and Trust Accounts as mutually agreed between the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of a Tenant Direction Letter, be deposited in the Lockbox Account within two (2) Business Day of receipt;Parties.
(iv) Without the prior written consent of Lender, so long as any portion The Parties shall direct such firm selected in accordance with clause (iii) above to provide its calculation of the Debt remains outstandingMarket Value of the Trust Assets (or the relevant assets, neither Borrower nor Manager as may be the case) no later than thirty (30) days from its receipt of the request from the Parties. The Parties agree that the resulting determination of such firm shall terminate, amend, revoke or modify any Tenant Direction Letter in any manner whatsoever be final and binding on the Parties. The Parties shall share the costs and expenses of the Market Value Dispute Valuation Firm
(other than for immaterial matters or to make typographical correctionsB) or direct or cause any Tenant to pay any amount in any manner other than In the case that (i) the Company has delivered a Dispute Notice and the Parties have not achieved resolution (as provided in the related Tenant Direction Letter; and
paragraph (vA) So long as any portion above) and (ii) a quarterly collateral adjustment is due pursuant to Article 7, paragraph H, then solely until final resolution of the Debt remains outstanding, neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Lockbox Account into which revenues from the ownership and operation of the Property are deposited. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower Dispute Notice (pursuant to the express terms process provided in paragraph (A) above), the quarterly collateral adjustment to Market Value for the disputed assets shall be made in accordance with the valuation of the collateral as determined by a Market Value Dispute Valuation Firm as selected by the Company in its sole discretion. The Company shall pay the costs and expenses of any Market Value Dispute Valuation Firm (or other such third-party valuation firm) incurred solely in connection with the provisions of this Agreement.
paragraph (b) Borrower hereby irrevocably authorizes Lender to transfer, or cause to be transferred, and Lender shall transfer, on each Business Day by wire transfer or other method of transfer mutually agreeable to Lockbox Bank and Lender of immediately available funds, all collected and available balances in the Lockbox Account to the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(cB).
(cC) On The terms of this paragraph 3 apply separately to each Scheduled Payment Date (such Dispute Notice delivered, and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month during which the first Scheduled Payment Date occurs, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, must be satisfied separately and independently in each case to separate instance unless otherwise mutually agreed by the extent that sufficient funds remain therefor:
(i) funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed Parties in accordance with Section 9.6;
(ii) funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;
(iii) funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(iv) funds sufficient to pay Lockbox Bank for all costs and expenses incurred by Lockbox Bank in connection with the maintenance and administration of the Lockbox Account;
(v) funds sufficient to pay the applicable TI/LC Monthly Deposit shall be allocated to the Leasing Reserve Account to be held and disbursed in accordance with Section 9.5; and
(vi) provided no Event of Default exist, the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred to Borrower pursuant to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition of income or excise taxeswriting.
(d) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).
(e) If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.
Appears in 1 contract
Deposits and Withdrawals. (a) Borrower represents, warrants and covenants that:
(i) Within ten (10) Business Days of Concurrently with the execution of this Agreement, (A) Borrower or Manager shall notify and advise each Tenant under each Lease (whether such Lease is presently effective or executed after the date hereof) to send directly to the Lockbox all payments of Rents or any other item payable under such Leases pursuant to an instruction letter deliver a notice substantially in the form of Exhibit D attached E hereto to all credit card companies to pay all Account Receivable directly into the Lockbox Account (a the “Tenant Credit Card Direction Letter”) and (B) to the extent any Franchisor pays any Accounts Receivable to Borrower, Borrower or Manager shall instruct each Franchisor to deposit all Accounts Receivable for each Individual Property and all other sums collected by each Franchisor pursuant to each Franchise Agreement into the Lockbox Account (the “Franchisor Direction Letter”). If Borrower or Manager fails to provide any such notice (and without prejudice to Lender’s rights with respect to such default), Lender shall have the right, and Borrower hereby grants to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant the appropriate Credit Card Direction Letter or Franchisor Direction Letter, as applicable;
(ii) Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the each Individual Property or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the each Individual Property to deliver all payments due under such accounts to the Lockbox. Neither None of Borrower nor or Manager shall direct any such Person to make payments due under such accounts in any other manner;
(iii) All Rents or other income from the Property shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of a Tenant Credit Card Direction Letter or Franchisor Direction Letter, as applicable, be deposited in the Lockbox Account within two one (21) Business Day of receipt;
(iv) Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, neither none of Borrower nor or Manager shall terminate, amend, revoke or modify any Tenant Credit Card Direction Letter or Franchisor Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant Tenant, credit card company or Franchisor to pay any amount in any manner other than as provided in the related Tenant Credit Card Direction Letter or Franchisor Direction Letter, as applicable; and
(v) So long as any portion of the Debt remains outstanding, neither Borrower, none of Borrower or Manager nor any other Person shall open or maintain any accounts other than the a Lockbox Account into which revenues from the ownership and operation of the each Individual Property are deposited. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this Agreement.
(b) At all times other than during a Cash Management Period, Lockbox Bank shall disburse all funds in the Lockbox Account to any account specified by Borrower in writing. Upon receipt of notice pursuant to the Lockbox Agreement by Lockbox Bank of the commencement of a Cash Management Period, (i) all rights of Borrower to receive disbursements from the Lockbox Account shall immediately cease and be automatically vested with Lender, and (ii) Lender shall have the right to transfer, or cause to be transferred, and Borrower hereby irrevocably authorizes Lender to transfer, or cause to be transferred, and Lender shall transfer, on each Business Day by wire transfer or other method of transfer mutually agreeable to Lockbox Bank and Lender of immediately available funds, all collected and available balances in the Lockbox Account to the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(c). All rights of Lender to the withdrawal of funds from the Lockbox Account shall immediately cease upon the discontinuation of a Cash Management Period. In the event a Cash Management Period occurs three times during the term of the Loan, Borrower shall not be entitled to any disbursements of funds from the Lockbox Account during the remaining term of the Loan, the Cash Management Period shall continue, and Lender shall continue to have the right to the withdrawal of funds from the Lockbox Account until the Debt is paid in full.
(c) On During a Cash Management Period, on each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month immediately following the month during which the first Scheduled Payment Date occursCash Management Period commences, Borrower hereby irrevocably authorizes Lender to, and subject to the terms hereof, Lender shall, withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor:therefore (in the following order):
(i) funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(ii) notwithstanding an Event of Default may exist, for so long as Manager is not then in default under the Management Agreement beyond any applicable notice and cure periods and Manager is not insolvent or a debtor in a bankruptcy proceeding funds sufficient to pay all base management fees payable to Manager in accordance with the terms of the Management Agreement for the following month incurred in accordance with the related Annual Budget shall be withdrawn and paid to Manager and until such time as the Management Agreement is terminated, funds sufficient to pay all costs and expenses reimbursable to Manager pursuant to Section 5.3 of the Management Agreement [ADDITIONAL SECTIONS TO BE ADDED] for the following month and incurred in accordance with the related Annual Budget shall be withdrawn and paid to Manager;
(iii) funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;
(iiiiv) funds sufficient to pay the Replacement Reserve Monthly Deposit shall be allocated to the Replacement Reserve Account to be held and disbursed in accordance with Section 9.5;
(v) funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(ivvi) funds sufficient to pay Lockbox Bank for all costs and expenses incurred by Lockbox Bank in connection with the maintenance and administration of the Lockbox Account;
(vvii) during a Cash Management Period caused solely by a Mezzanine Default, funds sufficient to pay Operating Expenses (to the applicable TI/LC Monthly Deposit extent actually incurred but without duplication of any sums previously disbursed pursuant to subsection (ii) above) for the following month incurred in accordance with the related Annual Budget shall be allocated to the Leasing Operating Expense Reserve Account to be held and disbursed in accordance with Section 9.59.10;
(viii) during a Cash Management Period caused solely by a Mezzanine Default, funds sufficient to pay any Extraordinary Expenses (without duplication of any sums previously disbursed pursuant to subsection (ii) above) for the following month which have been approved by Lender shall be allocated to the Extraordinary Expense Account to be held and disbursed in accordance with Section 9.10;
(ix) funds sufficient to pay (A) the Monthly Mezzanine Debt Service Payment Amount and (B) any Net Liquidation Proceeds After Debt Service, shall be deposited in an account designated by Mezzanine Lender in writing to Lender; and
(vix) provided no Event of Default exist, funds in an amount equal to the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall shall, during any Cash Management Period caused solely by a Mezzanine Default, be deposited in an account designated by Mezzanine Lender in writing to Lender, or during any other Cash Management Period (other than caused by an Event of Default), be transferred to Borrower pursuant to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition of income or excise taxesBorrower’s Account.
(d) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (vix) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).
(e) If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.
Appears in 1 contract
Samples: Loan Agreement (Capital Lodging)
Deposits and Withdrawals. (a) Borrower represents, warrants and covenants that:
(i) Within ten (10) Business Days of the execution of this Agreement, Borrower shall notify and advise each Tenant under each Lease (whether such Lease is presently effective or executed after the date hereof) to send directly to the Lockbox all payments of Rents or any other item payable under such Leases pursuant to an instruction letter substantially in the form of Exhibit D attached hereto (a “Tenant Direction Letter”). If Borrower fails to provide any such notice (and without prejudice to Lender’s rights with respect to such default), Lender shall have the right, and Borrower hereby grants to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Direction Letter;
(ii) Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property applicable Parcel or with whom Borrower or Manager does business on an “"accounts receivable” " basis with respect to the Property applicable Parcel to deliver all payments due under such accounts to the LockboxProperty Operating Account. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;
(iiiii) All Rents or other income from the Property each Parcel shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, Lender and (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding prior to being deposited into the delivery of a Tenant Direction Letter, be deposited in the Lockbox Account within two (2) Business Day of receiptProperty Operating Account;
(iv) Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, neither Borrower nor Manager shall terminate, amend, revoke or modify any Tenant Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant to pay any amount in any manner other than as provided in the related Tenant Direction Letter; and
(viii) So long as any portion of the Debt remains outstanding, neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Lockbox Property Operating Account into which revenues from the ownership and operation of the Property are initially deposited. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this Agreement.; and
(b) Upon the occurrence and during the continuance of an Event of Default, (A) if requested by Lender, the Borrower hereby irrevocably authorizes shall direct all Tenants to pay Rent to such account as may be required by Lender, and (B) the Borrower shall and shall cause the Property Operating Account Bank to promptly execute such documentation and otherwise cooperate in a prompt and timely manner with such other requests of Lender in order to transfer, grant Lender (x) a first priority perfected security interest in each Property Operating Account and (y) control with respect to each Property Operating Account all funds on deposit or cause to be transferred, and Lender shall transfer, on each Business Day by wire transfer or other method of transfer mutually agreeable to Lockbox Bank and Lender of immediately available funds, all collected and available balances in the Lockbox Account to the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(c)deposited therein.
(c) On each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month during which the first Scheduled Payment Date occurs, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor:
(i) funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(ii) funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;
(iii) funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(iv) funds sufficient to pay Lockbox Bank for all costs and expenses incurred by Lockbox Bank in connection with the maintenance and administration of the Lockbox Account;
(v) funds sufficient to pay the applicable TI/LC Monthly Deposit shall be allocated to the Leasing Reserve Account to be held and disbursed in accordance with Section 9.5; and
(vi) provided no Event of Default exist, the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred to Borrower pursuant to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition of income or excise taxes.
(d) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).
(e) If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretioneach Property Operating Account. Lender’s 's right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.
Appears in 1 contract
Samples: Loan Agreement (Sun Communities Inc)
Deposits and Withdrawals. (a) Borrower represents, warrants and covenants that:
(i) Within ten (10) Business Days of Concurrently with the execution of this Agreement, Borrower shall notify and advise each Tenant under each Lease (whether such Lease is presently effective or executed after the date hereof) to send directly to the Lockbox make all payments of Rents or any other item payable under such Leases directly to the Deposit Account or a post office address maintained by Deposit Bank for processing deposits to the Deposit Account, as applicable, pursuant to an instruction letter substantially in the form of Exhibit D 10.2 attached hereto (a “Tenant Direction Letter”). If Borrower fails to provide any such notice (and without prejudice to Lender’s rights with respect to such default), Lender shall have the right, and Borrower hereby grants to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Direction Letter;
(ii) Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the any Individual Property or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the any Individual Property to deliver all payments due under such accounts directly to the LockboxDeposit Account or a post office address maintained by Deposit Bank for processing deposits to the Deposit Account, as applicable. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;
(iii) All Rents or other income from the Property Properties shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of a Tenant Direction Letter, be deposited in the Lockbox Deposit Account within two (2) Business Day Days of receipt;
(iv) Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, neither Borrower nor Manager shall terminate, amend, revoke or modify any Tenant Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant to pay any amount in any manner other than as provided in the related Tenant Direction Letter; and
(v) So long as any portion of the Debt remains outstanding, neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Lockbox Deposit Account into which revenues from the ownership and operation of the Property are depositeddirectly deposited from the Tenants. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this Agreement.
(b) Borrower shall have no rights to make withdrawals from the Deposit Account, provided, that so long as no Cash Sweep Period has occurred and is continuing, all amounts in the Deposit Account shall be transferred to an account designated by Borrower on a daily basis in accordance with the Deposit Account Control Agreement. Borrower hereby irrevocably authorizes Lender to instruct Deposit Bank to transfer, or cause to be transferred, and Lender shall transfer, on each Business Day during a Cash Sweep Period by wire transfer or other method of transfer mutually agreeable to Lockbox Deposit Bank and Lender of immediately available funds, all collected and available balances in the Lockbox Deposit Account (subject to any minimum retained or “peg” balance that may be required pursuant to the terms of the Deposit Account Control Agreement) to the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(c)the terms of the Cash Management Agreement.
(c) On each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month during which the first Scheduled Payment Date occurs, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor:
(i) funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(ii) funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;
(iii) funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(iv) funds sufficient to pay Lockbox Bank for all costs and expenses incurred by Lockbox Bank in connection with the maintenance and administration of the Lockbox Account;
(v) funds sufficient to pay the applicable TI/LC Monthly Deposit shall be allocated to the Leasing Reserve Account to be held and disbursed in accordance with Section 9.5; and
(vi) provided no Event of Default exist, the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred to Borrower pursuant to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition of income or excise taxes.
(d) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available fundsfunds which may be necessary to pay all amounts due from time to time under the Loan Documents, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document)Bank.
(ed) If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Deposit Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.
Appears in 1 contract
Samples: Loan Agreement (Griffin Capital Essential Asset REIT, Inc.)
Deposits and Withdrawals. (a) Borrower represents, warrants and covenants that:
(i) Within ten (10) Business Days of Concurrently with the execution of this Agreement, Agreement Borrower shall notify has executed and advise each Tenant under each Lease (whether such Lease is presently effective or executed after the date hereof) delivered to send directly to the Lockbox all payments of Rents or any other item payable under such Leases pursuant to Lender an instruction letter substantially in the form of Exhibit D B attached hereto addressed to American Express (a the “Tenant Direction Letter”). If Borrower fails to provide any such notice (and without prejudice to Upon the occurrence of an Event of Default or upon commencement of the Cash Management Period, Lender or Lender’s rights with respect to such default)agent, Lender shall have the right, and Borrower hereby grants right to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of deliver the Debt remains outstanding), to sign and deliver a Tenant Direction LetterLetter to American Express and all payments of Rent and other items payable under the American Express Lease shall thereafter be sent directly to the Cash Management Account;
(ii) On the occurrence of an Event of Default or the commencement of the Cash Management Period Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the Property to deliver all payments due under such accounts to the LockboxCash Management Account. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;
(iii) All Rents or other income from the Property received after the commencement of the Cash Management Period or the occurrence of an Event of Default shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of a the Tenant Direction Letter, be deposited in the Lockbox Cash Management Account within two one (21) Business Day of receipt;
(iv) Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, during the Cash Management Period or the continuance of an Event of Default neither Borrower nor Manager shall terminate, amend, revoke or modify any the Tenant Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant American Express to pay any amount in any manner other than as provided in the related Tenant Direction Letter; and
(v) So long as any portion of the Debt remains outstanding, during the Cash Management Period or during the continuance of an Event of Default neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Lockbox Cash Management Account into which revenues from the ownership and operation of the Property are deposited. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this Agreement.
(b) Borrower hereby irrevocably authorizes Lender to transfer, or cause to be transferred, and Lender shall transfer, on each Business Day by wire transfer or other method of transfer mutually agreeable to Lockbox Bank and Lender of immediately available funds, all collected and available balances in the Lockbox Account to the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(c).
(c) On each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month during which the first Scheduled Payment Date occurs, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor:
(i) funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(ii) funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;
(iii) funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(iv) funds sufficient to pay Lockbox Bank for all costs and expenses incurred by Lockbox Bank in connection with the maintenance and administration of the Lockbox Account;
(v) funds sufficient to pay the applicable TI/LC Monthly Deposit shall be allocated to the Leasing Reserve Account to be held and disbursed in accordance with Section 9.5; and
(vi) provided no Event of Default exist, the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred to Borrower pursuant to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition of income or excise taxes.
(d) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).
(e) If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Deposits and Withdrawals. (a) Borrower represents, warrants and covenants that:
(i) Within ten (10) Business Days of the execution of this Agreement, Borrower shall notify and advise each Tenant under each Lease (whether such Lease is presently effective or executed after the date hereof) to send directly to the Lockbox all payments of Rents or any other item payable under such Leases pursuant to an instruction letter substantially in the form of Exhibit D attached hereto (a “Tenant Direction Letter”). If Borrower fails to provide any such notice (and without prejudice to Lender’s rights with respect to such default), Lender shall have the right, and Borrower hereby grants to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Direction LetterIntentionally deleted;
(ii) Borrower shall, and shall cause any Manager to, instruct collect all Persons that maintain payments due under open accounts with Borrower or any Manager with respect to the Property or with whom Borrower or any Manager does business on an “accounts receivable” basis with respect to the Property to deliver and deposit such all payments due under such accounts to the Lockbox. Neither Borrower nor any Manager shall direct any such Person to make payments due under such accounts in any other manner;
(iii) All Rents or other income from the Property shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Managerany Manager before deposit into the Lockbox Account, and (C) if received by Borrower or Manager notwithstanding the delivery of a Tenant Direction Letter, be deposited in the Lockbox Account within two one (21) Business Day of receipt;
(iv) Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, neither Borrower nor Manager shall terminate, amend, revoke or modify any Tenant Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant to pay any amount in any manner other than as provided in the related Tenant Direction LetterIntentionally deleted; and
(v) So long as any portion of the Debt remains outstanding, neither Borrower, any Manager nor any other Person shall open or maintain any accounts other than the Lockbox Account into which revenues from the ownership and operation of the Property are deposited. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this Agreement.
(b) During the continuance of a Cash Sweep Period, Borrower hereby irrevocably authorizes Lender to instruct Lockbox Bank (and to provide Borrower with a copy of such notice/instruction) to transfer, or cause to be transferred, and Lender shall transfer, on each Business Day by wire transfer or other method of transfer mutually agreeable to Lockbox Bank and Lender of immediately available funds, all collected and available balances in the Lockbox Account (subject to any minimum retained or “peg” balance that may be required pursuant to the terms of the Lockbox Agreement) to the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(c10.2(d). Pursuant to Section 1(f) of the Lockbox Agreement, Lender shall provide Lockbox Bank with notice of any discontinuance of a Cash Sweep Period. Provided no Event of Default shall have occurred and be continuing and no Cash Sweep Period shall be in effect, then Lender shall instruct Lockbox Bank to transfer, or cause to be transferred, on each Business Day by wire transfer or other method mutually agreeable to Lockbox Bank and Borrower of immediately available funds, all collected and available balances in the Lockbox Account (subject to any minimum retained or “peg” balance that may be required pursuant to the terms of the Lockbox Agreement) to Borrower’s Account.
(c) On Provided no Event of Default shall have occurred and be continuing, on or before each Scheduled Payment Date during the continuance of a Cash Sweep Period, Lender shall apply all funds on deposit in the Cash Management Account to the following subaccounts of the Cash Management Account in the following amounts and order of priority:
(i) First, to the Tax and Insurance Reserve Subaccount, in an amount up to the monthly deposit to the Tax and Insurance Reserve Account due on the next Scheduled Payment Date;
(ii) Second, to the Account Maintenance Subaccount, up to the amount due and payable by Borrower to Lockbox Bank or Lender pursuant to Section 10.1(e) hereof;
(iii) Third, to the Debt Service Subaccount, in an amount up to the Monthly Payment Amount due on the next Scheduled Payment Date;
(iv) Fourth, to the Replacement Reserve Subaccount, in an amount up to the Replacement Reserve Monthly Deposit due on the next Scheduled Payment Date;
(v) Fifth, to the Debt Service Subaccount, in an amount up to any interest accruing at the Default Rate, late payment charges, and any other sums due and payable to Lender under the Note, this Agreement or the other Loan Documents;
(vi) Sixth, to the Operating Expense Subaccount, together with amounts necessary to cover reasonable monthly shortfalls in Operating Expenses, the amount approved pursuant to Section 9.7(b) for disbursement to Borrower for Operating Expenses on the next Scheduled Payment Date;
(vii) Seventh, to the Extraordinary Expense Subaccount, up to the amount approved pursuant to Section 9.7(b) for disbursement to Borrower for Extraordinary Expenses on the next Scheduled Payment Date; and
(viii) Eighth, to the Excess Cash Subaccount, all amounts remaining in the Cash Management Account after all prior allocations under this Section 10.2(c) (the “Excess Cash”).
(d) Provided no Event of Default shall have occurred and be continuing, on each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing during the month during which the first Scheduled Payment Date occurscontinuance of a Cash Sweep Period, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received all funds on deposit in the Cash Management Account, in each case to the extent that sufficient Account and disburse such funds remain thereforas follows:
(i) funds sufficient to pay the monthly deposits to Funds on deposit in the Tax and Insurance Reserve Account shall be allocated Subaccount, to Lender for deposit into the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(ii) funds sufficient Funds on deposit in the Account Maintenance Subaccount, to pay the Monthly Payment Amount shall be withdrawn and paid Lockbox Bank or Lender, as applicable, for amounts payable pursuant to LenderSection 10.1(e);
(iii) funds sufficient Funds on deposit in the Debt Service Subaccount, to pay Lender for payment of the Monthly Payment Amount due on such Scheduled Payment Date together with any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Note, this Agreement or the other Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(iv) funds sufficient Funds on deposit in the Replacement Reserve Subaccount, to pay Lockbox Bank Lender for all costs and expenses incurred by Lockbox Bank in connection with deposit into the maintenance and administration of the Lockbox Account;
(v) funds sufficient to pay the applicable TI/LC Monthly Deposit shall be allocated to the Leasing Replacement Reserve Account to be held and disbursed in accordance with Section 9.5;
(v) Funds on deposit in the Operating Expense Subaccount, to Borrower’s Account for payment of Operating Expenses for such month pursuant to Section 9.7(b);
(vi) Funds on deposit in the Extraordinary Expense Subaccount, to Borrower’s Account for payment of Extraordinary Expenses for such month pursuant to Section 9.7(b); and
(vivii) provided no Event of Default exist, the balance (if any) remaining Funds on deposit in the Excess Cash Management Account after the foregoing withdrawals and allocations shall be transferred to Borrower pursuant to written instructions provided by Borrower Subaccount, to Lender from time for deposit into the Excess Cash Reserve Account to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including be held and disbursed in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition of income or excise taxesaccordance with Section 9.7(a).
(de) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of allocate the withdrawals and allocations described in full amounts required pursuant to Section 10.2(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).
(ef) If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.absolute
Appears in 1 contract
Samples: Loan Agreement (Sun Communities Inc)
Deposits and Withdrawals. (a) Borrower represents, warrants and covenants that:
(i) Within ten (10) Business Days of Concurrently with the execution of this Agreement, Borrower shall notify and advise each Tenant under each Major Lease (whether such Major Lease is presently effective or executed after the date hereof) to send directly to the Lockbox all payments of Rents or any other item payable under such Major Leases pursuant to an instruction letter substantially in the form of Exhibit D attached hereto reasonably approved by Lender (a “Tenant Direction Letter”). If Borrower fails to provide any such notice (and without prejudice to Lender’s rights with respect to such default), Lender shall have the right, and Borrower hereby grants to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Direction Letter;
(ii) Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the Property to deliver all payments due under such accounts to the LockboxLockbox Account. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;. Borrower and Manager shall cause all credit card receipts to be deposited directly into the Lockbox Account. On or before the date hereof Borrower shall or shall cause Manager to instruct each of the respective credit card companies or credit card clearing banks (collectively, a “Credit Card Company”) with which Borrower or Manager has entered into merchant’s agreements pursuant to an instruction letter in a form reasonably acceptable to Lender (a “Payment Direction Letter”) that all receipts payable with respect to the Property, in accordance with such merchants’ agreements or otherwise, shall be transferred by wire transfer to Lockbox Bank for deposit in the Lockbox Account.
(iii) All Rents or other income from the Property shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or ManagerManager (except as permitted hereunder), and (C) if received by Borrower or Manager notwithstanding the delivery of a Tenant Direction Letter or Payment Direction Letter, be deposited in the Lockbox Account within two one (21) Business Day of receipt;
(iv) Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, neither Borrower nor Manager shall terminate, amend, revoke or modify any Tenant Direction Letter or Payment Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant or Credit Card Company to pay any amount in any manner other than as provided in this Agreement;
(v) If, notwithstanding the related Tenant Direction Letterprovisions of this Section 12.2, Borrower or Manager receives any Rents from the Property prior to their deposit into the Lockbox Account, then (i) such amounts shall be deemed to be Collateral and shall be held in trust for the benefit, and as the property, of Lender, (ii) such amounts shall not be commingled with any other funds or property of Borrower or Manager and (iii) Borrower or Manager shall deposit such amounts in the Lockbox Account within one (1) Business Day of the receipt thereof. In addition, Borrower shall cause all payments made under the Interest Rate Protection Agreement or any replacement Interest Rate Protection Agreement to be deposited into the Lockbox Account; and
(vvi) So long as any portion of the Debt remains outstanding, neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Lockbox Account into which revenues from the ownership and operation of the Property are initially deposited. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this Agreement.
(b) Borrower hereby irrevocably authorizes Lender to transfer, or cause to be transferred, So long as no Event of Default has occurred and Lender shall transferis continuing, on each Business Day all collected and available balances in the Lockbox Account shall be transferred by wire transfer or other method of transfer mutually agreeable to Lockbox Bank and Borrower to an account to be designated by Borrower.
(c) During the continuance of an Event of Default, all transfers as provided in Section 12.2(b) above shall cease and all collected and available balances in the Lockbox Account shall be transferred by wire transfer or other method of transfer mutually agreeable to Lockbox Bank and Lender of immediately available funds, all collected and available balances in the Lockbox Account to the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(c).
(c) On each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month during which the first Scheduled Payment Date occurs, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor:
(i) funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(ii) funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;
(iii) funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(iv) funds sufficient to pay Lockbox Bank for all costs in Lender’s sole and expenses incurred by Lockbox Bank in connection with the maintenance and administration of the Lockbox Account;
(v) funds sufficient to pay the applicable TI/LC Monthly Deposit shall be allocated to the Leasing Reserve Account to be held and disbursed in accordance with Section 9.5; and
(vi) provided no Event of Default exist, the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred to Borrower pursuant to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition of income or excise taxesabsolute discretion.
(d) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).
(e) If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.
Appears in 1 contract
Deposits and Withdrawals. (a) Each of Borrower and Maryland Owner also represents, warrants and covenants thatas follows:
(i) Within ten Subject to Section 10.2(a)(viii) (10except to the extent it is not the obligation of a Qualified Manager that that is either Remington, or another Manager not Affiliated with Borrower, under the related Management Agreement (as described in Section 10.2(a)(viii)) Business Days of to collect Rents from Tenants under Leases, then this clause (i) shall apply at all times with respect to the applicable Individual Property), to the extent not accomplished prior to the date hereof under the Original Loan Agreement, concurrently with the execution of this Agreement, Borrower and Maryland Owner shall, and shall cause Manager to, notify and advise each Tenant under each a Major Lease (whether such Major Lease is presently effective or executed after the date hereof) to send directly to the Lockbox Clearing Account all payments of Rents or any other item payable under such Leases Major Lease pursuant to an instruction letter substantially in the form of Exhibit D F attached hereto (a “Tenant Direction Letter”). If Borrower or Maryland Owner fails to provide any such notice as required in the immediately preceding sentence (and without prejudice to Lender’s rights with respect to such default), Lender shall have the right, and Borrower and Maryland Owner hereby grants grant to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Direction Letter;
(ii) Subject to Section 10.2(a)(viii) (except to the extent it is not the obligation of a Qualified Manager that is either Remington, or another Manager not Affiliated with Borrower, under the related Management Agreement (as described in Section 10.2(a)(viii)) to collect the amounts referenced in this clause (ii), then this clause (ii) shall apply at all times with respect to the applicable Individual Property), to the extent not accomplished prior to the date hereof under the Original Loan Agreement, Borrower and Maryland Owner shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower Borrower, Maryland Owner or Manager with respect to the Property or with whom Borrower Borrower, Maryland Owner or Manager does business on an “accounts receivable” basis with respect to the Property to deliver all payments due under such accounts to the LockboxClearing Account or to another account as may be reasonably requested by Lender and Borrower, Maryland Owner and Manager shall use commercially reasonable efforts to cause such payments to be made directly to the Clearing Account. Neither Borrower nor None of Borrower, Maryland Owner or Manager shall direct any such Person to make payments due under such accounts in any other manner;
(iii) Subject to Section 10.2(a)(viii) (except to the extent it is not the obligation of a Qualified Manager that is either Remington, or another Manager not Affiliated with Borrower, under the related Management Agreement (as described in Section 10.2(a)(viii)) to collect the credit card receipts, then this clause (iii) shall apply at all times with respect to the applicable Individual Property), to the extent not accomplished prior to the date hereof under the Original Loan Agreement, concurrently with the execution of this Agreement, Borrower and Maryland Owner shall, and shall cause Manager to, cause all credit card receipts for the Property to be deposited directly into the Clearing Account and Borrower and Maryland Owner shall, and shall cause Manager to, instruct and shall continuously thereafter instruct each of the credit card banks with which Borrower, Maryland Owner or Manager has entered into agreements for the clearance of credit card receipts for the Property (collectively, “Credit Card Banks”) that all credit card receipts with respect to the Property (net of any expenses charged for such processing) cleared by such Credit Card Banks shall be transferred by such Credit Card Banks by wire transfer or the ACH System to the Clearing Account or to another account as may be reasonably requested by Lender pursuant to an instruction letter approved by Lender (a “Credit Card Bank Payment Direction Letter”). Borrower and Maryland Owner shall, and shall cause Manager to, instruct and shall continuously thereafter instruct each of the credit card companies with which Borrower and Maryland Owner has entered into merchants agreements (collectively, “Credit Card Companies”) that all credit card receipts with respect to the Property (net of any expenses charged for such processing) received by such Credit Card Companies shall be transferred by such Credit Card Companies by wire transfer or the ACH System to the Clearing Account or such other account as may reasonably be requested by Lender pursuant to an instruction letter acceptable to Lender (a “Credit Card Company Payment Direction Letter”);
(iv) All Rents or other income from the Property shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower Borrower, Maryland Owner or Manager, and (C) subject to clauses (i) – (iii) above, if received by Borrower or Maryland Owner or Manager notwithstanding the delivery of a Tenant Direction Letter, Credit Card Bank Payment Direction Letter or Credit Card Company Payment Direction Letter, be deposited in the Lockbox Clearing Account within two (2) Business Day Days of receiptreceipt by Borrower or Maryland Owner and, if received by a Non-Affiliated Manager, Borrower and Maryland Owner shall exercise whatever rights they have under the Management Agreement to cause Manager to promptly make such deposit;
(ivv) Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, neither Borrower nor Manager none of Borrower, Maryland Owner or Manager, shall terminate, amend, revoke or modify any Tenant Direction Letter, Credit Card Bank Payment Direction Letter or Credit Card Company Payment Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant to pay any amount in any manner other than as provided in the related Tenant Direction Letter; and;
(vvi) So long as any portion of the Debt remains outstanding, neither none of Borrower, Maryland Owner, Manager nor any other Person shall open or maintain any accounts other than the Lockbox Manager Accounts and the Clearing Account into which revenues from the ownership and operation of the Property are depositeddeposited and any related reserve accounts for the Property (each of which shall be required to be an Eligible Account) held by Lender pursuant to this Agreement. The foregoing shall not prohibit Borrower Borrower, Maryland Owner or Manager, as the case may be, from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this Agreement.
(b) Borrower hereby irrevocably authorizes Lender to transfer, or cause to be transferred, and Lender shall transfer, on each Business Day by wire transfer or other method of transfer mutually agreeable to Lockbox Bank and Lender of immediately available funds, all collected and available balances in the Lockbox Account to the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(c).
(c) On each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month during which the first Scheduled Payment Date occurs, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor:
(i) funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(ii) funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;
(iii) funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(iv) funds sufficient to pay Lockbox Bank for all costs and expenses incurred by Lockbox Bank in connection with the maintenance and administration of the Lockbox Account;
(v) funds sufficient to pay the applicable TI/LC Monthly Deposit shall be allocated to the Leasing Reserve Account to be held and disbursed in accordance with Section 9.5; and
(vi) provided no Event of Default exist, the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred to Borrower pursuant to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition of income or excise taxes.
(d) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).
(e) If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.
Appears in 1 contract
Samples: Mortgage Loan Agreement (Ashford Hospitality Trust Inc)
Deposits and Withdrawals. (a) Borrower represents, warrants and covenants that:
(i) Within ten (10) Business Days of Concurrently with the execution of this Agreement, Borrower shall notify has delivered to Lender a Tenant Direction Letter with respect to each existing Lease notifying and advise advising each Tenant under each Lease (whether such Lease is presently effective or executed after the date hereof) thereunder to send directly to the Lockbox all payments of Rents or any other item payable under such Leases pursuant Leases. In addition, concurrently with the execution of any Lease after the date hereof, Borrower shall deliver to an instruction letter substantially in the form of Exhibit D attached hereto (Lender a “Tenant Direction Letter”)Letter with respect to such Lease. Lender shall hold all Tenant Direction Letters prior to the occurrence of a Cash Management Period. Borrower hereby expressly authorizes Lender to deliver any or all of the Tenant Direction Letters to the applicable Tenants upon the occurrence of a Cash Management Period. If Borrower fails to provide any such notice (and without prejudice to Lender’s rights with respect to such default), Lender shall have the right, and Borrower hereby grants to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Direction Letter;
(ii) Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the Property to deliver all payments due under such accounts to the Lockbox. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;
(iii) All Rents or other income from the Property shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of a Tenant Direction Letter, be deposited in the Lockbox Account within two one (21) Business Day of receipt;
(iv) Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, neither Borrower nor Manager shall terminate, amend, revoke or modify any Tenant Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant to pay any amount in any manner other than as provided in the related Tenant Direction Letter; and
(v) So long as any portion of the Debt remains outstanding, neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Lockbox Account into which revenues from the ownership and operation of the Property are deposited. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this Agreement.
(b) Provided no Event of Default has occurred, at all times other than during a Cash Management Period, notwithstanding anything to the contrary herein, Borrower shall have the sole right to withdraw funds on deposit in the Lockbox Account and may do so from time to time. Upon receipt of notice pursuant to the Lockbox Agreement by Lockbox Bank of the commencement of a Cash Management Period or the occurrence of an Event of Default, (i) all rights of Borrower to the withdrawal of funds from the Lockbox Account shall immediately cease and be automatically vested with Lender, and (ii) Lender shall have the right to transfer, or cause to be transferred, and Borrower hereby irrevocably authorizes Lender to transfer, or cause to be transferred, and Lender shall transfer, on each Business Day by wire transfer or other method of transfer mutually agreeable to Lockbox Bank and Lender of immediately available funds, all collected and available balances in the Lockbox Account to the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(c). Provided no Event of Default has occurred and is continuing, all rights of Lender to the withdrawal of funds from the Lockbox Account shall immediately cease and be automatically vested with Borrower upon the earlier to occur of (a) payment in full of the Debt or (b) the discontinuation of a Cash Management Period. In the event a Cash Management Period occurs twice during the term of the Loan, Borrower shall not be entitled to any rights to the withdrawal of funds from the Lockbox Account during the remaining term of the Loan, the Cash Management Period shall continue, and Lender shall continue to have the right to the withdrawal of funds from the Lockbox Account until the Debt is paid in full.
(c) On During a Cash Management Period, on each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month immediately following the month during which the first Scheduled Payment Date occursCash Management Period commences, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor:
(i) funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(ii) funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;
(iii) funds sufficient to pay the Replacement Reserve Monthly Deposit shall be allocated to the Replacement Reserve Account to be held and disbursed in accordance with Section 9.5;
(iv) funds sufficient to pay the Leasing Reserve Monthly Deposit and Termination Fee Deposits shall be allocated to the Leasing Reserve Account to be held and disbursed in accordance with Section 9.5;
(v) funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(ivvi) funds sufficient to pay Lockbox Bank for all costs and expenses incurred by Lockbox Bank in connection with the maintenance and administration of the Lockbox Account;
(vvii) during a Cash Management Period, funds sufficient to pay Operating Expenses (to the applicable TI/LC Monthly Deposit extent actually incurred) for the following month incurred in accordance with the related Annual Budget shall be allocated to the Leasing Operating Expense Reserve Account to be held and disbursed in accordance with Section 9.5; and9.9;
(viviii) provided no Event of Default existduring a Cash Management Period, funds sufficient to pay any Extraordinary Expenses for the following month which have been approved by Lender shall be allocated to the Extraordinary Expense Account to be held and disbursed in accordance with Section 9.9;
(ix) funds in an amount equal to the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall shall, during any Cash Management Period, be deposited in the Excess Cash Reserve Account to be held and disbursed in accordance with Section 9.8, or if a Cash Management Period is not in effect, be transferred to Borrower pursuant to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition of income or excise taxesBorrower’s Account.
(d) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (vvi) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five (5) day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).
(e) If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.
Appears in 1 contract
Samples: Loan Agreement (AmREIT, Inc.)
Deposits and Withdrawals. (a) Borrower represents, warrants and covenants that:
(i) Within ten (10) Business Days of the execution of this Agreement, Borrower shall notify has notified and advise advised each Tenant under each Lease (whether such Lease is presently effective or executed after the date hereofJune 27, 2003) to send directly to the Lockbox all payments of Rents or any other item payable under such Leases pursuant to an instruction letter substantially in the form of Exhibit D attached hereto (a “Tenant Direction Letter”"TENANT DIRECTION LETTER"). If Borrower fails to provide any such notice (and without prejudice to Lender’s 's rights with respect to such default), Lender shall have the right, and Borrower hereby grants to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Direction Letter;
(ii) Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property or with whom Borrower or Manager does business on an “"accounts receivable” " basis with respect to the Property to deliver all payments due under such accounts to the Lockbox. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;
(iii) All Rents or other income from the Property shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of a Tenant Direction Letter, be deposited in the Lockbox Account within two (2) Business Day of receipt;
(iv) Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, neither Borrower nor Manager shall terminate, amend, revoke or modify any Tenant Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant to pay any amount in any manner other than as provided in the related Tenant Direction Letter; and
(v) So long as any portion of the Debt remains outstanding, neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Lockbox Account into which revenues from the ownership and operation of the Property are deposited. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this Agreement.
(b) Borrower hereby irrevocably authorizes Lender to transfer, or cause to be transferred, and Lender shall transfer, on each Business Day by wire transfer or other method of transfer mutually agreeable to Lockbox Bank and Lender of immediately available funds, all collected and available balances in the Lockbox Account to the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(c).
(c) On each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month during which the first Scheduled Payment Date occurs, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor:
(i) funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(ii) funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;
(iii) funds sufficient to pay the Replacement Reserve Monthly Deposit shall be allocated to the Replacement Reserve Account to be held and disbursed in accordance with Section 9.5;
(iv) funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(ivv) funds sufficient to pay Lockbox Bank for all costs and expenses incurred by Lockbox Bank in connection with the maintenance and administration of the Lockbox Account;
(vvi) funds sufficient to pay Operating Expenses (to the extent actually incurred) for the following month incurred in accordance with the related Annual Budget shall be allocated to the Operating Expense Reserve Account to be held and disbursed in accordance with Section 9.8;
(vii) funds sufficient to pay the applicable TI/LC Monthly Deposit shall be allocated to the Leasing Reserve Account to be held and disbursed in accordance with Section 9.5; and;
(viviii) funds sufficient to pay any Extraordinary Expenses for the following month which have been approved by Lender shall be allocated to the Extraordinary Expense Account to be held and disbursed in accordance with Section 9.8;
(ix) provided no Event of Default existhas occurred and is continuing, funds to pay (A) the debt service on the Senior Mezzanine Loan pursuant to the direction letter from Senior Mezzanine Lender and (B) the debt service on the Junior Mezzanine Loan pursuant to the direction letter from Junior Mezzanine Lender;
(x) provided no Event of Default exist and Lender has not received written notice from either Senior Mezzanine Lender that a Senior Mezzanine Event of Default exists or Junior Mezzanine Lender that a Junior Mezzanine Event of Default exists, funds in an amount equal to the Junior Subordinated Management Fee shall be disbursed to Manager, it being understood that if there are insufficient funds to pay the Junior Subordinated Management Fee in any month, such unpaid fee (or portion thereof) shall be waived by Manager and Manager shall have no rights to pursue such unpaid fee (or portion thereof);
(xi) provided no Event of Default exists, if Lender has received written notice from Senior Mezzanine Lender that a Senior Mezzanine Event of Default exists, funds in an amount equal to the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred to Senior Mezzanine Lender;
(xii) provided no Event of Default exist and Lender has not received written notice from Senior Mezzanine Lender that a Senior Mezzanine Event of Default exists, if Lender has received written notice from Junior Mezzanine Lender that a Junior Mezzanine Event of Default exists, funds in an amount equal to the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred to Junior Mezzanine Lender;
(xiii) provided no Event of Default exist and Lender has not received written notice from Senior Mezzanine Lender that a Senior Mezzanine Event of Default exists, or from Junior Mezzanine Lender that a Junior Mezzanine Event of Default exists, in the event that a Mezzanine Litigation Event exists, funds in an amount sufficient to pay the "Discharge Amount" (as defined in the Indemnity and Agreement) shall be transferred to the Mezzanine Litigation Reserve Account to be held and disbursed pursuant to the terms of the Indemnity and Agreement; and
(xiv) provided no Event of Default exist and Lender has not received written notice from Senior Mezzanine Lender that a Senior Mezzanine Event of Default exists, or from Junior Mezzanine Lender that a Junior Mezzanine Event of Default exists, the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred to Borrower pursuant to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including holders in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition of income or excise taxes.
(d) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s 's servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).
(e) If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.through
Appears in 1 contract
Deposits and Withdrawals. (a) Borrower represents, warrants and covenants that:
(i) Within ten (10) Business Days of Concurrently with the execution of this Agreement, Borrower shall notify and advise each Tenant under each Lease (whether such Lease is presently effective or executed after the date hereof) Sotheby’s to send directly to the Lockbox Cash Management Account all payments of Rents or any other item payable under such Leases the Sotheby’s Lease pursuant to an instruction letter substantially in the form of Exhibit D C attached hereto (a “Tenant Direction Letter”). If Borrower fails to provide any such notice (and without prejudice to Lender’s rights with respect to such default), Lender shall have the right, and Borrower hereby grants to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Direction Letter;
(ii) Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the Property to deliver all payments due under such accounts to the LockboxCash Management Account. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;
(iii) All Rents or other income from the Property shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of a Tenant Direction Letter, be deposited in the Lockbox Cash Management Account within two five (25) Business Day Days of receipt;
(iv) Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, neither Borrower nor Manager shall terminate, amend, revoke or modify any Tenant Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant to pay any amount in any manner other than as provided in the related Tenant Direction Letter; and
(v) So long as any portion of the Debt remains outstanding, neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Lockbox Cash Management Account into which revenues from the ownership and operation of the Property are deposited. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this Agreement.
(b) Borrower hereby irrevocably authorizes Lender to transfer, or cause to be transferred, and Lender shall transfer, on each Business Day by wire transfer or other method of transfer mutually agreeable to Lockbox Bank and Lender of immediately available funds, all collected and available balances in the Lockbox Account to the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(c).
(ci) On each Scheduled Payment Date prior to the Optional Prepayment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month during which the first Scheduled Payment Date occurs), Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the following sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor, in the following amounts and order of priority:
(iA) if required pursuant to Section 9.6 hereof, funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account Account, if any, shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(iiB) funds sufficient to pay the I/O Monthly Payment Amount or Monthly Payment Amount, as applicable, shall be withdrawn and paid to Lender;
(iiiC) if required pursuant to Section 9.2(b) hereof, funds sufficient to pay the Replacement Reserve Monthly Deposit, if any, shall be allocated to the Replacement Reserve Account to be held and disbursed in accordance with Section 9.5;
(D) funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(iv) funds sufficient to pay Lockbox Bank for all costs and expenses incurred by Lockbox Bank in connection with the maintenance and administration of the Lockbox Account;
(v) funds sufficient to pay the applicable TI/LC Monthly Deposit shall be allocated to the Leasing Reserve Account to be held and disbursed in accordance with Section 9.5; and
(viE) provided no Event of Default exist, funds in an amount equal to the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred disbursed to Borrower pursuant to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes no Event of Default has occurred and to avoid the imposition of income or excise taxesis continuing.
(dii) On each Scheduled Payment Date from and after the Optional Prepayment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day), Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the following sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor, in the following amounts and order of priority: Confidential Treatment Requested by BANA XXXX-Xxxx-00153
(A) if required pursuant to Section 9.6 hereof, funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account, if any, shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(B) funds sufficient to pay Operating Expenses for the following month to be incurred in accordance with the related Annual Budget shall be allocated to the Operating Expense Reserve Account to be held and disbursed in accordance with Section 9.8;
(C) funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;
(D) funds sufficient to pay the Replacement Reserve Monthly Deposit, if any, shall be allocated to the Replacement Reserve Account to be held and disbursed in accordance with Section 9.5;
(E) funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items; and
(F) funds sufficient to pay any Additional Replacements for the following month which have been approved by Lender shall be allocated to the Replacement Reserve Account to be held and disbursed in accordance with Section 9.5;
(G) funds sufficient to pay any Extraordinary Expenses for the following month which have been approved by Lender shall be allocated to the Extraordinary Expense Account to be held and disbursed in accordance with Section 9.8;
(H) provided no Event of Default shall have occurred and be continuing, funds in an amount equal to the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations (“Excess Cash Flow”) shall be withdrawn and paid to Lender to be applied, in each case pro rata (based on the initial principal balance of Note A and Note B) to Note A and Note B, (1) first, to the reduction of the outstanding principal balance of the Loan, (2) second, to the payment of Accrued Interest (without duplication of any amount paid pursuant to Section 10.2(b)(ii)(C)), and (3) third, to the extent permitted under applicable law, to the payment of interest on the Accrued Interest at the Revised Note Rate (without duplication of any amount paid pursuant to Section 10.2(b)(ii)(C)).
(c) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (viv) above, Borrower shall deposit such deficiency into the Cash Management Account within Confidential Treatment Requested by BANA XXXX-Xxxx-00154 five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).
(ed) If Notwithstanding any other provision contained in this Agreement or in any of the other Loan Documents, if an Event of Default shall have occurred and be continuing, Borrower shall have no rights to receive any sums on deposit in the Cash Management Account or the Reserve Accounts and Borrower hereby irrevocably authorizes Lender to (I) liquidate and transfer any amounts then invested in Permitted Investments pursuant to the applicable terms hereof to the Reserve Accounts or reinvest such amounts in other Permitted Investments as Lender may reasonably determine is necessary to perfect or protect any security interest granted or purported to be granted hereby or pursuant to the other Loan Documents or to enable Lender to exercise and enforce Lender’s rights and remedies hereunder or under any other Loan Document with respect to any Reserve Account, and (II) make any and all withdrawals from the Lockbox Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all shall apply such funds contained as set forth in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretionSection 10.3(c) below. Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.
Appears in 1 contract
Samples: Loan Agreement (Sothebys)
Deposits and Withdrawals. (a) Prior to a Lockbox Event, Borrower represents, warrants and covenants that:
(i) Within ten (10) Business Days of Concurrently with the execution of this Agreement, Borrower shall notify and advise each Tenant under each Lease (whether such Lease is presently effective or executed after the date hereof) to send directly to the Lockbox Cash Management Account all payments of Rents or any other item payable under such Leases pursuant to an instruction letter substantially in the form of Exhibit D B attached hereto (a “Tenant Direction Letter”). If Borrower fails to provide any such notice (and without prejudice to Lender’s rights with respect to such default), Lender shall have the right, and Borrower hereby grants to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Direction Letter;
(ii) Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the Property to deliver all payments due under such accounts to the LockboxCash Management Account. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;
(iii) All Rents or other income from the Property shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of a Tenant Direction Letter, be deposited in the Lockbox Account within two one (21) Business Day of receipt;
(iv) Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, except as provided in Section 10.3 hereof, neither Borrower nor Manager shall terminate, amend, revoke or modify any Tenant Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant to pay any amount in any manner other than as provided in the related Tenant Direction Letter; and
(v) So long as any portion of the Debt remains outstanding, neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Lockbox Cash Management Account into which revenues from the ownership and operation of the Property are deposited. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this Agreement.
(b) Borrower hereby irrevocably authorizes Lender to transfer, or cause to be transferredProvided no Event of Default has occurred, and Lender provided Borrower has provided the letter of credit required by Section 9.2, at all times other than during a Cash Management Period, Borrower shall transferhave the sole right to withdraw funds on deposit in the Cash Management Account and may do so on a monthly basis. Upon the commencement of a Cash Management Period, on each Business Day the occurrence of an Event of Default or the Borrower’s failure to provide the letter of credit required by wire transfer or other method Section 9.2, (i) all rights of transfer mutually agreeable Borrower to Lockbox Bank the withdrawal of funds from the Cash Management Account shall immediately cease and Lender of immediately available fundsbe automatically vested with Lender, and (ii) all collected and available balances in the Lockbox Account to the Cash Management Account to shall be held until disbursed by Lender pursuant to Section 10.2(c).
(c) On each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month immediately following the month during which the first Scheduled Payment Date occursBorrower no longer has a right to withdraw funds from the Cash Management Account, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor:
(i) funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(ii) funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;
(iii) funds sufficient to pay the Replacement Reserve Monthly Deposit and the amounts necessary to replace the letter of credit to the extent the Borrower failed to provide the letter of credit required by Section 9.2 shall be allocated to the Replacement Reserve Account to be held and disbursed in accordance with Section 9.5;
(iv) Termination Fee Deposits shall be allocated to the Leasing Reserve Account to be held and disbursed in accordance with Section 9.3;
(v) funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(ivvi) funds sufficient to pay Lockbox Bank Operating Expenses (to the extent actually incurred) for all costs and expenses incurred by Lockbox Bank the following month in connection accordance with the maintenance and administration of related Annual Budget shall be allocated to the Lockbox AccountOperating Expense Reserve Account to be held in accordance with Section 9.8;
(vvii) funds sufficient to pay any Extraordinary Expenses for the applicable TI/LC Monthly Deposit following month which have been approved by Lender shall be allocated to the Leasing Reserve Extraordinary Expense Account to be held and disbursed in accordance with Section 9.59.8; and
(viviii) provided no Event of Default exist, funds in an amount equal to the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred to Borrower pursuant (A) during the Cash Management Period, the AFL Leasing Reserve Account and (B) after the end of the Cash Management Period, and provided there is no Event of Default, such funds shall be transferred to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition of income or excise taxesBorrower’s Account.
(d) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (vvi) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).
(e) If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.
Appears in 1 contract
Deposits and Withdrawals. (a) Borrower representsOperating Lessee shall direct and cause Manager, warrants MI and covenants that:
all other Persons paying any Excess Cash Flow to Operating Lessee, to deposit such Excess Cash Flow into the Hotel Lockbox Account. Hotel Owner shall direct and cause Operating Lessee to deposit all rents and other sums payable to Hotel Owner pursuant to the Operating Lease (iand Operating Lessee hereby agrees to do so) Within ten (10) Business Days and all other Persons paying any Excess Cash Flow to Hotel Owner to deposit such Excess Cash Flow into the Hotel Lockbox Account. Residential Owner shall direct and cause all Lessees of the execution of this AgreementResidential Units, Borrower shall notify and advise each Tenant under each Lease (whether such Lease is presently effective or executed after the date hereof) to send directly to the Lockbox all payments of Rents or any other item payable under such Leases pursuant to an instruction letter substantially in the form of Exhibit D attached hereto (a “Tenant Direction Letter”). If Borrower fails to provide any such notice (and without prejudice to Lender’s rights with respect to such default), Lender shall have the rightif any, and Borrower hereby grants all other Persons paying any Excess Cash Flow to Lender a power of attorney (which power of attorney Residential Owner to deposit such Excess Cash Flow into the Residential Lockbox Account. Borrowers and Operating Lessee shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Direction Letter;
(ii) Borrower shall, and shall cause Manager to, instruct deposit all Persons that maintain open accounts with Borrower or Manager with respect to the Property or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the Property to deliver all payments due under such accounts to the Lockbox. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;
(iii) All Rents or other income from the Property shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if Excess Cash Flow received by Borrower or Manager notwithstanding any of them into the delivery of a Tenant Direction Letter, be deposited in the applicable Lockbox Account within two (2) Business Day Days of receipt;
(iv) Without . For the prior written consent avoidance of Lenderdoubt and notwithstanding anything to the contrary in this Agreement, so long as any portion of upon deposit to the Debt remains outstandingHotel Lockbox Account, neither Borrower nor Manager shall terminate, amend, revoke or modify any Tenant Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant funds necessary to pay any amount in any manner other than as provided in and all amounts due under the related Tenant Direction Letter; and
Operating Lease from Operating Lessee to Hotel Owner shall be deemed to be (vi) So long as any portion of first, disbursed from the Debt remains outstanding, neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Hotel Lockbox Account to Operating Lessee, (ii) second, paid by Operating Lessee to Hotel Owner, and (iii) third, deposited by Hotel Owner into the Hotel Lockbox Account, all of which revenues from shall be deemed to have occurred simultaneously and without the ownership and operation actual transfer of the Property are deposited. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this Agreementfunds.
(b) Borrower Notwithstanding anything to the contrary set forth herein, neither Borrowers nor Operating Lessee shall have any right to make withdrawals from either Lockbox Account. Borrowers and Operating Lessee hereby irrevocably authorizes Lender authorize Administrative Agent to instruct Lockbox Bank to transfer, or cause to be transferred, and Lender shall transfer, on each Business Day by wire transfer or other method of transfer mutually agreeable to Lockbox Bank and Lender Administrative Agent of immediately available funds, all collected and available balances in the Lockbox Account Accounts (subject to any minimum retained or “peg” balance that may be required pursuant to the terms of the applicable Lockbox Agreement) to the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(c)Account.
(c) On each Scheduled Payment Date (Subject to Section 1.5.2(f) and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month during which the first Scheduled Payment Date occurs, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts other terms and provisions of the Cash Management Account, as the case may bethis Agreement, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor:
(i) funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(ii) funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;
(iii) funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(iv) funds sufficient to pay Lockbox Bank for all costs and expenses incurred by Lockbox Bank in connection with the maintenance and administration of the Lockbox Account;
(v) funds sufficient to pay the applicable TI/LC Monthly Deposit shall be allocated to the Leasing Reserve Account to be held and disbursed in accordance with Section 9.5; and
(vi) provided no Event of Default exist, the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred allocated and disbursed monthly by Administrative Agent as follows:
(i) First, to Borrower Lockbox Bank or Administrative Agent, as applicable, all amounts due and payable by Borrowers to pursuant to written instructions provided Section 1.5.1(e) for such month;
(ii) Second, to Administrative Agent on behalf of itself and Lenders all interest and principal payments and administrative fees due and payable by Borrower Borrowers to Lender Administrative Agent and the Lenders under the Note, this Agreement or the other Loan Documents for such month;
(iii) Third, for deposit in the Tax, Common Charge and Insurance Reserve Account, an amount equal to the monthly deposit to the Tax, Common Charge and Insurance Reserve Account due for such month;
(iv) Fourth, to the extent not deposited in the Manager FF&E Reserve as referenced in Section 1.4.4, for deposit in the FF&E Reserve Account, an amount equal to the monthly deposit to the FF&E Reserve Account due for such month;
(v) Fifth, unless a Subsequent Cash Sweep Period shall exist, to Borrowers for payment to Borrowers’ asset manager(s) of an asset management fee equal to one percent (1%) of “Gross Revenues” as defined in the Management Agreement for the then-current “Accounting Period” as defined in the Management Agreement (unless Borrowers notify Administrative Agent that this allocation should cease to be made), which sum shall be paid to Borrowers at an account which Hotel Owner shall from time to time. Lender acknowledges that Borrower will make distributions from such time designate in writing to its equity holdersAdministrative Agent; and
(vi) Sixth, including (y) if a Cash Sweep Period then exists, for deposit in such the Working Capital Reserve Account all amounts as are necessary for Sponsor remaining in the Cash Management Account after all prior allocations under this Section 1.5.2(c) and (z) if a Cash Sweep Period does not exist, to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid Borrowers by deposit in the imposition of income or excise taxesDesignated Account after all prior allocations under this Section 1.5.2(c).
(d) Notwithstanding anything From time to time, but not more frequently than once per month, Borrowers may submit to Administrative Agent a written request for disbursement from the Working Capital Reserve Account (x) provided no Default has occurred and is continuing, to pay for capital expenditures and operating expenses for the Property (to the contrary hereinextent not paid pursuant to the Management Agreement or another Marriott Agreement) that are approved by Administrative Agent, Borrower acknowledges that Borrower (y) provided no Default has occurred and is responsible for monitoring continuing, to make any prepayment of the sufficiency Loan pursuant to Section 1.18, and (z) subject to the next to last sentence of funds deposited this Section 1.5.2(d), to return to Manager amounts required to be returned to Manager pursuant to Section 2(C) of the Operating Profit Guaranty on account of previously distributed Guaranty Fundings (as defined in the Cash Management Account Operating Guaranty) for a Guaranty Year (as defined in the Operating Profit Guaranty) or to provide for adjustments in accountings thereunder (each a “Manager Refund”). Each such written request shall (i) specify the capital expenditures, operating expenses, prepayment or Manager Refund for which such disbursement is requested, (ii) include a certification from Borrowers that the items that are the subject of such request have not been the subject of a prior request, and (iii) with respect to Manager Refund, include a copy of Manager’s demand or statement for such Manager Refund and a certification from Borrowers that Borrower the conditions in the last sentence of this Section 1.5.2(d) are satisfied. Borrowers shall promptly deliver to Administrative Agent copies of paid invoices (or unpaid invoices to which the requested disbursement relates and is liable to be applied) and lien waivers as Administrative Agent may reasonably require in connection with such requested disbursement and the subject matter thereof. Provided that the foregoing conditions are satisfied, and all other conditions applicable to the requested disbursement set forth in this Section 1.5.2 are satisfied, Administrative Agent shall disburse Working Capital Reserve Funds to Borrowers or Operating Lessee (or at Administrative Agent’s option retain same for any deficiency prepayment of the Loan if applicable pursuant to Borrowers’ request) in available fundsaccordance with Borrowers’ instructions delivered to Administrative Agent, irrespective which funds Borrowers and Operating Lessee shall only use for the purpose of whether Borrower has received any account statementpaying the applicable capital expenditures and Operating Expenses, notice reimbursing themselves for prior payments thereof, making the applicable prepayment of the Loan or demand from Lender or Lender’s servicermaking the applicable Manager Refund. If Additionally, in the amount event that funds on deposit in the Cash Management Account is are insufficient to make all of fully fund the withdrawals and allocations described set forth in Section 10.2(c)(iclauses (i) through (v) of Section 1.5.2(c), Administrative Agent shall, provided no Default has occurred and is continuing, allow the disbursement of Working Capital Reserve Funds, to the extent thereof, to fund such allocations in the order set forth above. Notwithstanding anything in the foregoing to the contrary, Borrower Working Capital Reserve Funds shall deposit not be disbursed for any requested Manager Refund unless (A) the amount that is the subject of such deficiency Manager Refund shall have been disbursed by Manager during a Cash Sweep Period, deposited into the Hotel Account and transferred to the Cash Management Account within five and funds at least equal to such amount (5or such lesser amount as Borrowers may request for such Manager Refund) days shall have been deposited into the Working Capital Reserve Account and (provided that B) there shall have been no release of Working Capital Reserve Funds as a result of the discontinuance of such five day period shall not constitute a grace period for any default Cash Sweep Period or Event other release of Default the funds deposited into the Working Capital Reserve Account during such Cash Sweep Period (other than disbursements permitted under this Agreement or Section 1.5.2(d)). Borrowers shall notify Administrative Agent of disbursements made by Manager under the Operating Profit Guaranty during any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document)Cash Sweep Period.
(e) If an Event So long as no Default shall have occurred and be continuing and no Cash Sweep Period is then in effect, following the end of the Initial Cash Sweep Period, at Borrowers’ written request, the balance remaining in the Working Capital Reserve Account shall be released to Borrowers by deposit in the Designated Account.
(f) So long as no Default shall have occurred and be continuing, Borrower following the end of any Subsequent Cash Sweep Period, upon Borrowers’ delivery to Administrative Agent of two (2) compliance certificates pursuant to Section 2(b) of Exhibit “B” with respect to two (2) consecutive Quarterly Test Dates that demonstrate that the Debt Service Coverage Ratio as of each of such Quarterly Test Dates are equal to or greater than 1.10 to 1.00, at Borrowers’ written request, the balance remaining in the Working Capital Reserve Account shall be released to Borrowers.
(g) Upon the occurrence and during the continuance of a Default (and, with respect to the Tax, Common Charge and Insurance Reserve Account and the FF&E Reserve Account, the acceleration of the Indebtedness), notwithstanding anything to the contrary set forth herein, neither Borrowers nor Operating Lessee shall have any right to disbursements from the Cash Management Account except for Manager Refunds. Borrowers and Operating Lessee hereby irrevocably authorizes Lender authorize Administrative Agent upon the occurrence and during the continuance of a Default (and, with respect to the Tax, Common Charge and Insurance Reserve Account and the FF&E Reserve Account, after the acceleration of the Indebtedness) to make any and all withdrawals from the Lockbox Account Accounts and the Cash Management Account and transfers between any of the Reserve Accounts as Lender Administrative Agent shall determine in LenderAdministrative Agent’s sole and absolute discretion and Lender Administrative Agent may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt Obligations in such order, proportion and priority as Lender Administrative Agent may determine in its sole and absolute discretion. LenderAdministrative Agent’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender Administrative Agent under this Agreement, the Note, the Mortgage and the other Loan Documents.
Appears in 1 contract
Deposits and Withdrawals. (a) Borrower represents, warrants and covenants that:
(i) Within ten (10) Business Days of Concurrently with the execution of this Agreement, Borrower shall notify and advise each Tenant under each Major Lease (whether such Major Lease is presently effective or executed after the date hereof) to send directly to the Lockbox all payments of Rents or any other item payable under such Major Leases pursuant to an instruction letter substantially in the form of Exhibit D attached hereto reasonably approved by Lender (a “Tenant Direction Letter”). If Borrower fails to provide any such notice (and without prejudice to Lender’s rights with respect to such default), Lender shall have the right, and Borrower hereby grants to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Direction Letter;
(ii) Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the Property to deliver all payments due under such accounts to the LockboxLockbox Account. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;. Borrower and Manager shall cause all credit card receipts to be deposited directly into the Lockbox Account. On or before the date hereof Borrower shall or shall cause Manager to instruct each of the respective credit card companies or credit card clearing banks (collectively, a “Credit Card Company”) with which Borrower or Manager has entered into merchant’s agreements pursuant to an instruction letter in a form reasonably acceptable to Lender (a “Payment Direction Letter”) that all receipts payable with respect to the Property, in accordance with such merchants’ agreements or otherwise, shall be transferred by wire transfer to Lockbox Bank for deposit in the Lockbox Account.
(iii) All Rents or other income from the Property shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or ManagerManager (except as permitted hereunder), and (C) if received by Borrower or Manager notwithstanding the delivery of a Tenant Direction Letter or Payment Direction Letter, be deposited in the Lockbox Account within two one (21) Business Day of receipt;
(iv) Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, neither Borrower nor Manager shall terminate, amend, revoke or modify any Tenant Direction Letter or Payment Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant or Credit Card Company to pay any amount in any manner other than as provided in this Agreement;
(v) If, notwithstanding the related Tenant Direction Letterprovisions of this Section 12.2, Borrower or Manager receives any Rents from the Property prior to their deposit into the Lockbox Account, then (i) such amounts shall be deemed to be collateral for the Loan and shall be held in trust for the benefit, and as the property, of Lender, (ii) such amounts shall not be commingled with any other funds or property of Borrower or Manager and (iii) Borrower or Manager shall deposit such amounts in the Lockbox Account within one (1) Business Day of the receipt thereof. In addition, Borrower shall cause all payments made under the Interest Rate Protection Agreement or any replacement Interest Rate Protection Agreement to be deposited into the Lockbox Account; and
(vvi) So long as any portion of the Debt remains outstanding, neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Lockbox Account into which revenues from the ownership and operation of the Property are initially deposited. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this Agreement.
(b) Borrower hereby irrevocably authorizes Lender to transfer, or cause to be transferred, So long as no Event of Default has occurred and Lender shall transferis continuing, on each Business Day all collected and available balances in the Lockbox Account shall be transferred by wire transfer or other method of transfer mutually agreeable to Lockbox Bank and Borrower to an account to be designated by Borrower.
(c) During the continuance of an Event of Default, all transfers as provided in Section 12.2(b) above shall cease and all collected and available balances in the Lockbox Account shall be transferred by wire transfer or other method of transfer mutually agreeable to Lockbox Bank and Lender of immediately available funds, all collected and available balances in the Lockbox Account to the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(c).
(c) On each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month during which the first Scheduled Payment Date occurs, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor:
(i) funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(ii) funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;
(iii) funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(iv) funds sufficient to pay Lockbox Bank for all costs in Lender’s sole and expenses incurred by Lockbox Bank in connection with the maintenance and administration of the Lockbox Account;
(v) funds sufficient to pay the applicable TI/LC Monthly Deposit shall be allocated to the Leasing Reserve Account to be held and disbursed in accordance with Section 9.5; and
(vi) provided no Event of Default exist, the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred to Borrower pursuant to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition of income or excise taxesabsolute discretion.
(d) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).
(e) If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.
Appears in 1 contract
Deposits and Withdrawals. (a) Borrower represents, warrants and covenants that:
(i) Within ten (10) Business Days of Concurrently with the execution of this Agreement, Borrower shall notify and advise each Tenant under each Lease (whether such in effect as of the date hereof and Borrower shall notify and advise each Tenant under any Lease is presently effective or executed after the date hereof) hereof to send directly to the Lockbox all payments of Rents or any other item payable under such Leases pursuant to an instruction letter substantially in the form of Exhibit D B attached hereto (a “Tenant Direction Letter”). If Borrower fails to provide any such notice (and without prejudice to Lender’s rights with respect to such default), Lender shall have the right, and Borrower hereby grants to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Direction Letter;
(ii) Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the Property to deliver all payments due under such accounts to the Lockbox. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;
(iii) All Rents or other income from the Property shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of a Tenant Direction Letter, be deposited in the Lockbox Account within two one (21) Business Day of receipt;
(iv) Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, neither Borrower nor Manager shall terminate, amend, revoke or modify any Tenant Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant to pay any amount in any manner other than as provided in the related Tenant Direction Letter; and
(v) So long as any portion of the Debt remains outstanding, neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Lockbox Account into which revenues from the ownership and operation of the Property are deposited. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this Agreement.
(b) Borrower hereby irrevocably authorizes Lender to , upon the commencement of a Cash Sweep Period, instruct Lockbox Bank to transfer, or cause to be transferred, and Lender shall transfer, on each Business Day by wire transfer or other method of transfer mutually agreeable to Lockbox Bank and Lender of immediately available funds, all collected and available balances in the Lockbox Account (subject to any minimum retained or “peg” balance that may be required pursuant to the terms of the Lockbox Agreement) to the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(c10.2(d). Subject to Section 10.2(a) above, if a Cash Sweep Period ceases to exist, pursuant to the Lockbox Agreement, all collected and available balances in funds the Lockbox Account (subject to any minimum retained or “peg” balance that may be required pursuant to the terms of the Lockbox Agreement) in the Lockbox Account shall be transferred on each Business Day to Borrower’s Account, to be held and disbursed at Borrower’s sole discretion, unless a Cash Sweep Period once again exists, in which case such funds in the Lockbox Account shall be transferred on each Business Day to the Cash Management Account. Upon the cessation of a Cash Sweep Period, unless an Event of Default has occurred and is continuing, Lender shall provide written notice to the Lockbox Bank directing it to remit the then balance in the Cash Management Account to Borrower’s Account.
(c) On Provided no Event of Default shall have occurred and be continuing, on or before each Scheduled Payment Date occurring on or after the commencement of a Cash Sweep Period, Lender shall apply all funds on deposit in the Cash Management Account to the following subaccounts of the Cash Management Account in the following amounts and order of priority:
(i) First, to the Tax and Insurance Reserve Subaccount (if applicable and solely to the extent Tenants are not obligated pursuant to the applicable Leases and have satisfied such obligation), in an amount up to the monthly deposit to the Tax and Insurance Reserve Account due on the next Scheduled Payment Date;
(ii) Second, to the Account Maintenance Subaccount, up to the amount due and payable by Borrower to Lockbox Bank or Lender pursuant to Section 10.1(e) hereof;
(iii) Third, to the Debt Service Subaccount, in an amount up to the Monthly Payment Amount due on the next Scheduled Payment Date;
(iv) Fourth, to the Replacement Reserve Subaccount (if applicable and solely to the extent Tenants are obligated pursuant to the applicable Leases and have not satisfied such obligation), in an amount up to the Replacement Reserve Monthly Deposit due on the next Scheduled Payment Date;
(v) Intentionally omitted.
(vi) Sixth, to the Debt Service Subaccount, in an amount up to any interest accruing at the Default Rate, late payment charges, and any other sums due and payable to Lender under the Note, this Agreement or the other Loan Documents;
(vii) Seventh, during the continuation of a Cash Sweep Period, to the Operating Expense Subaccount, up to the amount approved pursuant to Section 9.7(b) for disbursement to Borrower for Operating Expenses on the next Scheduled Payment Date;
(viii) Eighth, during the continuation of a Cash Sweep Period, to the Extraordinary Expense Subaccount, up to the amount approved pursuant to Section 9.7(b) for disbursement to Borrower for Extraordinary Expenses on the next Scheduled Payment Date; and
(ix) Ninth, during the continuation of a Cash Sweep Period, to the Excess Cash Subaccount, otherwise to the Borrower Subaccount, all amounts remaining in the Cash Management Account after all prior allocations under this Section 10.2(c) (the “Excess Cash”).
(d) During a Cash Sweep Period, provided no Event of Default shall have occurred and be continuing, on each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month during which the first Scheduled Payment Date occurs, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received all funds on deposit in the Cash Management Account, in each case to the extent that sufficient Account and disburse such funds remain thereforas follows:
(i) funds sufficient to pay the monthly deposits to Funds on deposit in the Tax and Insurance Reserve Account shall be allocated Subaccount (if applicable and solely to the extent Tenants are not obligated pursuant to the applicable Leases and have satisfied such obligation), to Lender for deposit into the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(ii) funds sufficient Funds on deposit in the Account Maintenance Subaccount, to pay Lockbox Bank or Lender, as applicable, for amounts payable pursuant to Section 10.1(e)
(iii) Funds on deposit in the Debt Service Subaccount, to Lender for payment of the Monthly Payment Amount shall be withdrawn and paid to Lender;
(iii) funds sufficient to pay due on such Scheduled Payment Date together with any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Note, this Agreement or the other Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(iv) funds sufficient Funds on deposit in the Replacement Reserve Subaccount (if applicable and solely to pay Lockbox Bank for all costs and expenses incurred by Lockbox Bank in connection with the maintenance and administration of the Lockbox Account;
(v) funds sufficient extent Tenants are obligated pursuant to pay the applicable TI/LC Monthly Deposit shall be allocated Leases and have not satisfied such obligation), to Lender for deposit into the Leasing Replacement Reserve Account to be held and disbursed in accordance with Section 9.5; and
(vi) provided no Event of Default exist, the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred to Borrower pursuant to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition of income or excise taxes.
(d) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).
(e) If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.;
Appears in 1 contract
Deposits and Withdrawals. (a) Borrower represents, warrants and covenants that:
(i) Within ten (10) Business Days of Concurrently with the execution of this Agreement, Borrower shall notify and advise each Tenant under each Lease (whether such Lease is presently effective or executed after the date hereofother than Southern Property Services) to send directly to the Lockbox make all payments of Rents or any other item payable under such Leases directly to the Deposit Account or a post office address maintained by Deposit Bank for processing deposits to the Deposit Account, as applicable, pursuant to an instruction letter substantially in the form of Exhibit D 10.2 attached hereto (a “Tenant Direction Letter”). With respect to Southern Property Services, Borrower shall deliver a Tenant Direction Letter prior to the payment of Rent due for the month of January, 2019. If Borrower fails to provide any such notice (and without prejudice to Lender’s rights with respect to such default), Lender shall have the right, and Borrower hereby grants to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Direction Letter;
(ii) Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the any Individual Property or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the any Individual Property to deliver all payments due under such accounts directly to the LockboxDeposit Account or a post office address maintained by Deposit Bank for processing deposits to the Deposit Account, as applicable. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;
(iii) All Rents or other income from the Property Properties shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of a Tenant Direction Letter, be deposited in the Lockbox Deposit Account within two (2) Business Day Days of receipt;
(iv) Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, neither Borrower nor Manager shall terminate, amend, revoke or modify any Tenant Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant to pay any amount in any manner other than as provided in the related Tenant Direction Letter; and
(v) So long as any portion of the Debt remains outstanding, neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Lockbox Deposit Account into which revenues from the ownership and operation of the Property are depositeddirectly deposited from the Tenants. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this Agreement.
(b) Borrower shall have no rights to make withdrawals from the Deposit Account, provided, that so long as no Cash Sweep Period has occurred and is continuing, all amounts in the Deposit Account shall be transferred to an account designated by Borrower on a daily basis in accordance with the Deposit Account Control Agreement. Borrower hereby irrevocably authorizes Lender to instruct Deposit Bank to transfer, or cause to be transferred, and Lender shall transfer, on each Business Day during a Cash Sweep Period by wire transfer or other method of transfer mutually agreeable to Lockbox Deposit Bank and Lender of immediately available funds, all collected and available balances in the Lockbox Deposit Account (subject to any minimum retained or “peg” balance that may be required pursuant to the terms of the Deposit Account Control Agreement) to the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(c)the terms of the Cash Management Agreement.
(c) On each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month during which the first Scheduled Payment Date occurs, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor:
(i) funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(ii) funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;
(iii) funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(iv) funds sufficient to pay Lockbox Bank for all costs and expenses incurred by Lockbox Bank in connection with the maintenance and administration of the Lockbox Account;
(v) funds sufficient to pay the applicable TI/LC Monthly Deposit shall be allocated to the Leasing Reserve Account to be held and disbursed in accordance with Section 9.5; and
(vi) provided no Event of Default exist, the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred to Borrower pursuant to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition of income or excise taxes.
(d) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available fundsfunds which may be necessary to pay all amounts due from time to time under the Loan Documents, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document)Bank.
(ed) If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Deposit Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.
Appears in 1 contract
Samples: Loan Agreement (Griffin Capital Essential Asset REIT II, Inc.)
Deposits and Withdrawals. (a) Borrower represents, warrants and covenants that:
(i) Within ten Upon the commencement of a Cash Sweep Period, Borrower shall, and shall cause Manager to, deposit all amounts received by Borrower or Manager from the operation of the Property, including, without limitation, Rents into the Deposit Account within two (102) Business Days of the execution of this Agreement, Borrower shall notify and advise each Tenant under each Lease (whether such Lease is presently effective or executed after the date hereof) to send directly to the Lockbox all payments of Rents or any other item payable under such Leases pursuant to an instruction letter substantially in the form of Exhibit D attached hereto (a “Tenant Direction Letter”). If Borrower fails to provide any such notice (and without prejudice to Lender’s rights with respect to such default), Lender shall have the right, and Borrower hereby grants to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Direction Letterreceipt thereof;
(ii) Upon the commencement of a Cash Sweep Period, Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property Property, if any, or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the Property Property, if any, to deliver all payments due under such accounts directly to the LockboxDeposit Account or a post office address maintained by Deposit Bank for processing deposits to the Deposit Account, as applicable. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts accounts, if any, in any other manner;
(iii) All Rents or other income from the Property shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, and (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of a Tenant Direction Letter, be deposited in the Lockbox Account within two (2) Business Day of receipt;
(iv) Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, neither Borrower nor Manager shall terminate, amend, revoke or modify any Tenant Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant to pay any amount in any manner other than as provided in the related Tenant Direction Letter[Intentionally Omitted]; and
(v) So If a Cash Sweep Period is in effect and so long as any portion of the Debt remains outstanding, neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Lockbox Deposit Account into which revenues from the ownership and operation of the Property are initially deposited. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this AgreementAgreement during a Cash Sweep Period.
(b) Borrower hereby irrevocably authorizes Lender to instruct Deposit Bank to transfer, or cause to be transferred, and Lender shall transfer, on each Business Day during a Cash Sweep Period by wire transfer or other method of transfer mutually agreeable to Lockbox Deposit Bank and Lender of immediately available funds, all collected and available balances in the Lockbox Deposit Account (subject to any minimum retained or “peg” balance that may be required pursuant to the terms of the Deposit Account Control Agreement) to (i) prior to a Cash Sweep period, such account as shall be specified by Borrower in writing to Lender and Deposit Bank and (ii) during a Cash Sweep Period, the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(c)the terms of the Cash Management Agreement.
(c) On each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month during which the first Scheduled Payment Date occurs, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor:
(i) funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(ii) funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;
(iii) funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(iv) funds sufficient to pay Lockbox Bank for all costs and expenses incurred by Lockbox Bank in connection with the maintenance and administration of the Lockbox Account;
(v) funds sufficient to pay the applicable TI/LC Monthly Deposit shall be allocated to the Leasing Reserve Account to be held and disbursed in accordance with Section 9.5; and
(vi) provided no Event of Default exist, the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred to Borrower pursuant to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition of income or excise taxes.
(d) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available fundsfunds which may be necessary to pay all amounts due from time to time under the Loan Documents, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document)Bank.
(ed) If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Deposit Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.
Appears in 1 contract
Deposits and Withdrawals. (a) Borrower represents, warrants and covenants that:
(i) Within ten (10) Business Days Borrower shall cause Xxxxx Fargo Mortgage Loan Borrower and Maryland Owner to comply with the provisions of Article X and Section 9.10 of the execution of this Xxxxx Fargo Mortgage Loan Agreement, Borrower shall notify and advise each Tenant under each Lease (whether such Lease is presently effective or executed after the date hereof) to send directly to the Lockbox all payments of Rents or any other item payable under such Leases pursuant to an instruction letter substantially in the form of Exhibit D attached hereto (a “Tenant Direction Letter”). If Borrower fails to provide any such notice (and without prejudice to Lender’s rights with respect to such default), Lender shall have the right, and Borrower hereby grants to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Direction Letter;.
(ii) Borrower shallshall cause (A) CIGNA Mortgage Loan Borrower to cause Manager to make disbursements to Mortgage Loan Lender or Lender, as applicable, of any amounts which would otherwise be available to be disbursed to the applicable CIGNA Mortgage Loan Borrower as and when required under the terms of the applicable Management Agreement, and shall (B) CIGNA Mortgage Loan Borrower to comply, and to cause Manager to comply, with the provisions of the CIGNA Mortgage Loan Documents and the Loan Documents relating to such disbursements and any other provisions thereunder relating to cash management, and to deliver directly to CIGNA Mortgage Lender or the Mezzanine Cash Management Account, as applicable, any amounts that would otherwise be released to, instruct all Persons that maintain open accounts with Borrower or Manager with respect would be permitted to the Property or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the Property to deliver all payments due under such accounts to the Lockbox. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;be distributed by, CIGNA Mortgage Loan Borrower.
(iii) All Rents or other income from the Property shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of a Tenant Direction Letter, be deposited in the Lockbox Account within two (2) Business Day of receipt;
(iv) Without the prior written consent of Lender, so So long as any portion of the Debt remains outstanding, neither Borrower nor Manager shall terminate, amend, revoke or modify any Tenant Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant to pay any amount in any manner other than as provided in the related Tenant Direction Letter; and
(v) So long as any portion of the Debt remains outstanding, neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Lockbox Mezzanine Cash Management Account into which revenues distributions or disbursements from Mortgage Loan Borrower and Maryland Owner or distributions from Mortgage Loan Lender to Mortgage Loan Borrower and Maryland Owner, as the ownership and operation of case may be, are deposited (other than distributions from Mortgage Loan Lender relating to a Restoration in compliance with the Property are deposited. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms provisions of this Agreement).
(b) Borrower hereby irrevocably authorizes Lender to transfer, or cause to be transferred, and Lender shall transfer, on each Business Day by wire transfer or other method of transfer mutually agreeable to Lockbox Bank and Lender of immediately available funds, all collected and available balances in the Lockbox Account to the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(c).
(c) On each Scheduled Payment Date (and if such day is not a Business Day, then subject to the immediately preceding day which is a Business Dayprovisions of Section 10.2(e) commencing below, and except for the month during which minimum balance required to be maintained therein by Cash Management Bank for the first Scheduled Payment Date occurspayment of costs and expenses of the Mezzanine Cash Management Account, Borrower hereby irrevocably authorizes Lender to cause Agent to withdraw or allocate as follows, including to the sub-accounts of the Cash Management AccountReserve Accounts, as the case may be, amounts received in the Mezzanine Cash Management Account, in each case to the extent that sufficient funds remain therefor:
(i) First, to Lender, funds sufficient to pay all amounts due and owing by Borrower to Lender under the monthly deposits Loan Documents, including interest due pursuant to the Tax and Insurance Reserve Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(ii2.3(a) funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;
(iii) funds sufficient to pay any hereof, interest accruing at the Default Rate, and any late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn through and paid including the next occurring Payment Date; provided, however, that Lender hereby acknowledges and agrees that any amounts received by Lender under this clause (i) prior to the date such amounts are otherwise due and payable to Lender under the terms of the Loan Documents will be held by Lender, and applied by Lender as of such due date against such itemsthe applicable amount then due and payable by Borrower;
(ivii) Second, to Agent, funds sufficient to pay Lockbox Bank for all costs and expenses incurred by Lockbox Agent and Cash Management Bank (but not, for the avoidance of doubt, servicing fees) in connection with the maintenance and administration of the Lockbox Mezzanine Cash Management Account and Reserve Accounts;
(iii) Third, to the Mezzanine 2 Cash Management Account, funds sufficient to pay the sum of (A) interest on the Mezzanine 2 Loan which is due and payable on the next occurring Payment Date, calculated using the non-default rate of interest under the Mezzanine 2 Loan Agreement, and excluding any past due amounts of interest on the Mezzanine 2 Loan, and (B) interest on the Mezzanine 3 Loan which is due and payable on the next occurring Payment Date, calculated using the non-default rate of interest under the Mezzanine 3 Loan Agreement, and excluding any past due amounts of interest on the Mezzanine 3 Loan;
(iv) Fourth, to the Mezzanine 2 Cash Management Account, funds sufficient to pay amounts due and payable on the next occurring Payment Date to Mezzanine 2 Agent and Mezzanine 3 Cash Management Bank pursuant to Section 10.2(b)(ii) of the Mezzanine 2 Loan Agreement and to the Mezzanine 3 Agent and Mezzanine 3 Cash Management Bank pursuant to Section 10.2(b)(ii) of the Mezzanine 3 Loan Agreement;
(v) Fifth, to the CIGNA Property Ground Rent Reserve Account, funds sufficient to pay make the applicable TI/LC deposit to the CIGNA Property Ground Rent Reserve Account required under Section 9.2 which is due and payable on the next occurring Payment Date;
(vi) Sixth, to the CIGNA Property Tax and Insurance Reserve Account, funds sufficient to make the deposit to the CIGNA Tax and Insurance Reserve Account required under Section 9.7 which is due and payable on the next occurring Payment Date;
(vii) Seventh, to the CIGNA Property Operating Expense Reserve Account, funds sufficient to make the deposit to the CIGNA Property Operating Expense Reserve Account required under Section 9.9 which is due and payable on the next occurring Payment Date;
(viii) Eighth, to the CIGNA Property FF&E Replacement Reserve Account, funds sufficient to make the CIGNA Property FF&E Replacement Reserve Monthly Deposit which is due and payable on the next occurring Payment Date;
(ix) Ninth, to the CIGNA Property Capital Replacement Reserve Account, funds sufficient to make the CIGNA Property Capital Replacement Reserve Monthly Deposit which is due and payable on the next occurring Payment Date;
(x) Tenth, during the existence of a Senior Mezzanine Cash Sweep Reserve Period, the remainder, if any, shall be allocated to deposited in the Leasing Mezzanine Debt Yield Reserve Account to be held and disbursed in accordance with Section 9.5; and
(vi) provided no Event of Default exist, the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred to Borrower pursuant to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition of income or excise taxes.
(d) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).
(e) If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.9.8 hereof;
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Deposits and Withdrawals. (a) Borrower represents, warrants and covenants that:
(i) Within ten (10) Business Days of Concurrently with the execution of this Agreement, Borrower shall notify and advise each Tenant under each Lease (whether such Lease is presently effective or executed after the date hereof) if Borrower has not previously directed such Tenant, to send directly to the Lockbox all payments of Rents or any other item payable under such Leases pursuant to an instruction letter substantially in the form of Exhibit D B attached hereto (a “Tenant Direction Letter”). If Borrower fails to provide any such notice (and without prejudice to Lender’s rights with respect to such default), Lender shall have the right, and Borrower hereby grants to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Direction Letter;
(ii) Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the Property to deliver all payments due under such accounts to the Lockbox. Neither Borrower nor and Manager shall not direct any such Person to make payments due under such accounts in any other manner;
(iii) All Rents or other income from the Property shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of a Tenant Direction Letter, be deposited in the Lockbox Account within two one (21) Business Day of receipt;
(iv) Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, neither Borrower nor Manager shall terminate, amend, revoke or modify any Tenant Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant to pay any amount in any manner other than as provided in the related Tenant Direction Letter; and
(v) So long as any portion of the Debt remains outstanding, neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Lockbox Account into which revenues from the ownership and operation of the Property are deposited. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this Agreement.
(b) Provided no Event of Default has occurred and is continuing, Borrower shall have the sole right to withdraw funds on deposit in the Lockbox Account and may do so from time to time. Upon receipt of notice pursuant to the Lockbox Agreement by Lockbox Bank of an Event of Default and during the continuance thereof, (i) all rights of Borrower to the withdrawal of funds from the Lockbox Account shall immediately cease and be automatically vested with Lender, and (ii) Lender shall have the right to transfer, or cause to be transferred, and Borrower hereby irrevocably authorizes Lender to transfer, or cause to be transferred, and Lender shall transfer, on each Business Day by wire transfer or other method of transfer mutually agreeable to Lockbox Bank and Lender of immediately available funds, all collected and available balances in the Lockbox Account to the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(c). Provided no Event of Default has occurred and is continuing, all rights of Lender to the withdrawal of funds from the Lockbox Account shall immediately cease and be automatically vested with Borrower upon the earlier to occur of the payment in full of the Debt.
(c) On Following the occurrence of an Event of Default on each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month immediately following the month during which the first Scheduled Payment Date an Event of Default occurs, and while such Event of Default continues, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor:
(i) funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(ii) funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;
(iii) funds sufficient to pay the Replacement Reserve Monthly Deposit shall be allocated to the Replacement Reserve Account to be held and disbursed in accordance with Section 9.5;
(iv) funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(ivv) funds sufficient to pay Lockbox Bank for all costs and expenses incurred by Lockbox Bank in connection with the maintenance and administration of the Lockbox Account;
(vvi) funds sufficient to pay Operating Expenses (to the applicable TI/LC Monthly Deposit extent actually incurred) for the following month incurred in accordance with the related Annual Budget shall be allocated to the Leasing Operating Expense Reserve Account to be held and disbursed in accordance with Section 9.5; and9.8;
(vivii) provided no Event of Default exist, funds sufficient to pay any Extraordinary Expenses for the following month which have been approved by Lender shall be allocated to the Extraordinary Expense Account to be held and disbursed in accordance with Section 9.8;
(viii) funds in an amount equal to the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred deposited in the Excess Cash Reserve Account to Borrower pursuant to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including be held and disbursed in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition of income or excise taxesaccordance with Section 9.9.
(d) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days Business Days (provided that such five day (5) Business Day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).
(e) If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt purposes set forth in such order, proportion and priority as Lender may determine in its sole and absolute discretionSection 10.3(c). Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.
Appears in 1 contract
Deposits and Withdrawals. (a) Borrower represents, warrants and covenants that:
(i) Within ten (10) Business Days of Concurrently with the execution of this Agreement, Borrower shall notify and advise each Tenant under each Lease (whether such Lease is presently effective or executed after the date hereof) if Borrower has not previously directed such Tenant, to send directly to the Lockbox all payments of Rents or any other item payable under such Leases pursuant to an instruction letter substantially in the form of Exhibit D C attached hereto (a “Tenant Direction Letter”). If Borrower fails to provide any such notice (and without prejudice to Lender’s rights with respect to such default), Lender shall have the right, and Borrower hereby grants to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Direction Letter;
(ii) Borrower shall, and shall cause Manager and Master Lessee, if applicable, to, instruct all Persons that maintain open accounts with Borrower Borrower, Master Lessee or Manager with respect to the Property or with whom Borrower Borrower, Master Lessee or Manager does business on an “accounts receivable” basis with respect to the Property to deliver all payments due under such accounts to the Lockbox. Neither Borrower nor Borrower, Master Lessee and Manager shall not direct any such Person to make payments due under such accounts in any other manner;
(iii) All Rents or other income from the Property shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower Borrower, Master Lessee or Manager, and (C) if received by Borrower Borrower, Master Lessee or Manager notwithstanding the delivery of a Tenant Direction Letter, be deposited in the Lockbox Account within two one (21) Business Day of receipt;
(iv) Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, neither Borrower Borrower, Master Lessee nor Manager shall terminate, amend, revoke or modify any Tenant Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant to pay any amount in any manner other than as provided in the related Tenant Direction Letter; and
(v) So long as any portion of the Debt remains outstanding, neither Borrower, Master Lessee, Manager nor any other Person shall open or maintain any accounts other than the Lockbox Account into which revenues from the ownership and operation of the Property are deposited. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this Agreement.
(b) Borrower hereby irrevocably authorizes Lender to transfer, or cause to be transferred, and Lender shall transfer, on each Business Day by wire transfer or other method of transfer mutually agreeable to Lockbox Bank and Lender of immediately available funds, all collected and available balances in the Lockbox Account to the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(c).
(c) On each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month during which the first Scheduled Payment Date occurs, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain thereforremain:
(i) funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account Account, if required pursuant to the provisions of Section 9.06, shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.69.06;
(ii) funds sufficient to pay the Ground Rent Monthly Deposit, if required pursuant to the provisions of Section 9.09 hereof, shall be allocated to the Ground Rent Reserve Account to be held and disbursed in accordance with Section 9.09 hereof;
(iii) to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;
(iiiiv) funds sufficient to pay the Replacement Reserve Monthly Deposit, if required pursuant to the provisions of Section 9.02, shall be allocated to the Replacement Reserve Account to be held and disbursed in accordance with Section 9.05;
(v) to pay the Leasing Reserve Monthly Deposit and Termination Fee Deposits, if required pursuant to the provisions of Section 9.03, shall be allocated to the Leasing Reserve Account to be held and disbursed in accordance with Section 9.05;
(vi) to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(ivvii) funds sufficient to pay Lockbox Bank for all costs and expenses incurred by Lockbox Bank in connection with the maintenance and administration of the Lockbox Account;
(vviii) funds sufficient to pay Operating Expenses (to the applicable TI/LC Monthly Deposit extent actually incurred) for the following month incurred in accordance with the related Annual Budget shall be allocated to the Leasing Operating Expense Reserve Account to be held and disbursed in accordance with Section 9.59.08; and
(viix) provided to pay any Extraordinary Expenses for the following month which have been approved by Lender shall be allocated to the Extraordinary Expense Account to be held and disbursed in accordance with Section 9.08.
(d) So long as no Event of Default existis continuing, the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations allocations, shall be transferred deposited into the Borrower Account. Notwithstanding the foregoing or anything else in this Agreement to the contrary, for each fiscal quarter during the continuance of a Cash Management Period, after disbursements for items (i) through (ix) above, Lender shall retain in the Excess Cash Reserve Account an amount equal to the Percentage of Excess Cash Flow for the corresponding Ratio Range(s), each as set forth on Schedule V attached hereto for such fiscal quarter, to be held and applied in accordance with Section 9.07 hereof (it being understood that Lender shall continue to retain in the Excess Cash Reserve Account an amount equal to the Percentage of Excess Cash Flow applicable with respect to the Ratio Range then applicable as a result of the Cash Management Period and it being further understood that until such time as a Cash Management Period terminates the applicable Percentage of Excess Income shall continue to be trapped and held by the Lender). Upon the termination of a Cash Management Period, monies or the applicable portion thereof thereafter collected in the Excess Cash Reserve Account shall be disbursed to Borrower pursuant to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition of income or excise taxesaccordance with Section 9.07 above.
(de) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i10.02(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days Business Days (provided that such five day (5) Business Day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).
(ef) If an Event of Default shall have has occurred and be is continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt purposes set forth in such order, proportion and priority as Lender may determine in its sole and absolute discretionSection 10.03(c). Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.
Appears in 1 contract
Deposits and Withdrawals. (a) Borrower represents, warrants and covenants that:
(i) Within ten (10) Business Days of Concurrently with the execution of this Agreement, Borrower shall notify and advise each Tenant under each Lease (whether such Lease is presently effective or executed after the date hereof) to send directly to the Lockbox all payments of Rents or any other item payable under such Leases pursuant to an instruction letter substantially in the form of Exhibit D C attached hereto (a “"Tenant Direction Letter”"). If Borrower fails to provide any such notice (and without prejudice to Lender’s 's rights with respect to such default), Lender shall have the right, and Borrower hereby grants to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Direction Letter;
(ii) Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property or with whom Borrower or Manager does business on an “"accounts receivable” " basis with respect to the Property to deliver all payments due under such accounts to the Lockbox. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;
(iii) All Rents or other income from the Property shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of a Tenant Direction Letter, be deposited in the Lockbox Account within two one (21) Business Day of receipt;
(iv) Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, neither Borrower nor Manager shall terminate, amend, revoke or modify any Tenant Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant to pay any amount in any manner other than as provided in the related Tenant Direction Letter; and
(v) So long as any portion of the Debt remains outstanding, neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Lockbox Account into which revenues from the ownership and operation of the Property are deposited. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this Agreement.
(b) Provided no Event of Default exists, Lockbox Bank shall be authorized to transfer all collected and available balances in the Lockbox Account to Borrower. If an Event of Default exists, Lockbox Bank shall transfer all collected and available balances in the Lockbox Account to the Cash Management Account and all rights of Borrower with respect to funds in the Lockbox Account shall immediately cease and be automatically vested with Lender, and (ii) Lender shall have the right to transfer, or cause to be transferred, and Borrower hereby irrevocably authorizes Lender to transfer, or cause to be transferred, and Lender shall transfer, on each Business Day by wire transfer or other method of transfer mutually agreeable to Lockbox Bank and Lender of immediately available funds, all collected and available balances in the Lockbox Account to the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(c)Account.
(c) On each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month during which the first Scheduled Payment Date occurs, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor:
(i) funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(ii) funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;
(iii) funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(iv) funds sufficient to pay Lockbox Bank for all costs and expenses incurred by Lockbox Bank in connection with the maintenance and administration of the Lockbox Account;
(v) funds sufficient to pay the applicable TI/LC Monthly Deposit shall be allocated to the Leasing Reserve Account to be held and disbursed in accordance with Section 9.5; and
(vi) provided no Event of Default exist, the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred to Borrower pursuant to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition of income or excise taxes.
(d) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s 's servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).
(ed) If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s 's sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s 's right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.
Appears in 1 contract
Deposits and Withdrawals. (a) Borrower represents, warrants and covenants that:
(i) Within ten (10) Business Days of Concurrently with the execution of this AgreementAgreement with respect to all Leases existing on the date hereof, and concurrently with the execution of any new Lease with respect to any new Lease, Borrower shall notify and advise each Tenant under each Lease (whether such Lease is presently effective or executed after the date hereof) to send directly to the Cash Management Account (or if the Lockbox Account has been established pursuant to Section 10.1(a) hereof, to the Lockbox Account) all payments of Rents or any other item payable under such Leases pursuant to an instruction letter substantially letter, including the wiring instructions for the Cash Management Account (or the Lockbox Account, as applicable) appearing in such letter, in the form of Exhibit D E attached hereto (a “Tenant Direction Letter”). If Borrower fails to provide any such notice (and without prejudice to Lender’s rights with respect to such default), Lender shall have the right, and Borrower hereby grants to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Direction Letter;
(ii) Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the Property to deliver all payments due under such accounts to the Lockbox. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;
(iii) All Rents or other income from the Property shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of a Tenant Direction Letter, be deposited in the Lockbox Account within two one (21) Business Day of receipt;
(iv) Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, neither Borrower nor Manager shall terminate, amend, revoke or modify any Tenant Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant to pay any amount in any manner other than as provided in the related Tenant Direction Letter; and
(v) So long as any portion of the Debt remains outstanding, neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Lockbox Account into which revenues from the ownership and operation of the Property are deposited. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this Agreement.
(b) Borrower hereby irrevocably authorizes Lender to transfer, or cause to be transferred, and Lender shall transfer, on each Business Day by wire transfer or other method of transfer mutually agreeable to Lockbox Bank and Lender of immediately available funds, all collected and available balances in the Lockbox Account to the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(c).
(c) On on each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month during which the first Scheduled Payment Date occurs, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor:
(i) first, funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account Account, if applicable, shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(ii) second, funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;
(iii) third, funds sufficient to pay the Actual Operating Expenses of the Property pursuant to the Annual Budget, to the extent not paid by FFIC pursuant to the FFIC Lease;
(iv) fourth, funds sufficient to pay the Replacement Reserve Monthly Deposit, if applicable, shall be allocated to the Replacement Reserve Account to be held and disbursed in accordance with Section 9.5;
(v) fifth, funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(ivvi) sixth, funds sufficient to pay Lockbox Bank for all costs and expenses incurred by Lockbox Bank in connection with the maintenance and administration of the Lockbox Account;
(vvii) seventh, funds sufficient to pay capital expenses of the applicable TI/LC Monthly Deposit shall be allocated Property pursuant to the Leasing Reserve Account Annual Budget, to be held and disbursed in accordance with Section 9.5; andthe extent not paid by FFIC pursuant to the FFIC Lease;
(viviii) provided no Event of Default existeighth, funds sufficient to pay Extraordinary Expenses approved by Lender;
(ix) ninth, (A) prior to the Anticipated Prepayment Date, funds in an amount equal to the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred to Borrower Borrower’s Account or (B) on or subsequent to the Anticipated Prepayment Date, such balance of funds (“Excess Cash”) shall be applied by Lender to prepay the Debt in accordance with Section 2.2(h) hereof. Such prepayments pursuant to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition this Section 10.2(c)(ix)(B) shall be made without payment of income any premium or excise taxespenalty.
(d) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (vviii) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).
(e) If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Account and Cash Management Account and transfers between any of the Reserve Accounts as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.
Appears in 1 contract
Deposits and Withdrawals. (a) Borrower represents, warrants and covenants that:
(i) Within ten five (105) Business Days days of the execution of this Agreementdate hereof, Borrower shall notify deliver to Lender evidence that Borrower has previously notified and advise advised each Tenant under each Lease (whether such Lease is presently effective or executed after the date hereof) to send directly to the Lockbox all payments of Rents or any other item payable under such Leases pursuant to an instruction letter substantially in the form of Exhibit D C attached hereto (a “Tenant Direction Letter”). If Borrower fails to provide any such notice (and without prejudice to Lender’s rights with respect to such default), Lender shall have the right, and Borrower hereby grants to Lender a power of attorney (which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Debt remains outstanding), to sign and deliver a Tenant Direction Letter;
(ii) Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property Individual Properties or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the Property Individual Properties to deliver all payments due under such accounts to the Lockbox. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;
(iii) All Rents or other income from the Property Individual Properties shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of a Tenant Direction Letter, be deposited in the Lockbox Account within two one (21) Business Day of receipt;
(iv) Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, neither Borrower nor Manager shall terminate, amend, revoke or modify any Tenant Direction Letter in any manner whatsoever (other than for immaterial matters or to make typographical corrections) or direct or cause any Tenant to pay any amount in any manner other than as provided in the related Tenant Direction Letter; and
(v) So long as any portion of the Debt remains outstanding, neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Lockbox Account into which revenues from the ownership and operation of the Property Individual Properties are deposited. The foregoing shall not prohibit Borrower from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower pursuant to the express terms of this Agreement.
(b) Notwithstanding anything to the contrary herein, provided no Event of Default has occurred (and until such time, if ever, that such Event of Default is expressly waived by Lender in writing in its sole discretion), at all times, Borrower shall have the right to the funds on deposit in the Lockbox Account and Lockbox Bank shall disburse such funds to a Borrower’s account as designated by Borrower from time to time pursuant to the Lockbox Agreement. Upon the occurrence of an Event of Default (and until such time, if ever, that such Event of Default is expressly waived by Lender in writing in its sole discretion), (i) all rights of Borrower to the funds in the Lockbox Account shall immediately cease and be automatically vested with Lender, and (ii) Borrower hereby irrevocably authorizes Lender Lockbox Bank (as set forth in the Lockbox Agreement) to transfer, or cause to be transferred, and Lender shall transfer, on each Business Day by wire transfer or other method of transfer mutually agreeable to Lockbox Bank and Lender of immediately available funds, a daily basis all collected and available balances in the Lockbox Account to the Cash Management Account to be held until disbursed by Lender pursuant to Section 10.2(c).
(c) On each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month during which the first Scheduled Payment Date occurs, Borrower hereby irrevocably authorizes Loan Agreement. All rights of Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor:
(i) funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.6;
(ii) funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;
(iii) funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;
(iv) funds sufficient to pay Lockbox Bank for all costs and expenses incurred by Lockbox Bank in connection with the maintenance and administration of the Lockbox Account;
(v) funds sufficient to pay the applicable TI/LC Monthly Deposit shall be allocated to the Leasing Reserve Account to be held and disbursed in accordance with Section 9.5; and
(vi) provided no Event of Default exist, the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be transferred to Borrower pursuant to written instructions provided by Borrower to Lender from time to time. Lender acknowledges that Borrower will make distributions from such to its equity holders, including in such amounts as are necessary for Sponsor to maintain its qualification as a real estate investment trust for United States federal tax purposes and to avoid the imposition of income or excise taxes.
(d) Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency withdrawal of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).
(e) If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Lockbox Account shall immediately cease and Cash Management Account and transfers between any be automatically vested with Borrower upon the payment in full of the Reserve Accounts as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan DocumentsDebt.
Appears in 1 contract
Samples: Term Loan Agreement (Developers Diversified Realty Corp)
