Distributions from Cash Management Account. (a) The Cash Management Agreement shall provide that the Cash Management Bank shall remit to the Junior Mezzanine Cash Management Account, at the end of each Business Day (or, at Borrower’s election, on a less frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), on the next Payment Date pursuant to Section 3.2(b) (the “Minimum Balance”); provided, however, that Lender shall terminate such remittances during the continuance of an Event of Default upon notice to the Cash Management Bank. Lender may notify the Cash Management Bank at any time of any change in the Minimum Balance. Lender shall deliver a copy of any notice of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan Documents. (b) On each Payment Date, provided no Event of Default has occurred and is continuing, Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority: (i) to Lender, the amount of all scheduled or delinquent interest on the Loan and all other amounts then due and payable under the Loan Documents; (ii) to Lender, any Restricted Cash required to be used to prepay the Loan pursuant to Section 2.1(c)(i); (iii) to Lender, any Xxxx Excess Cash Flow required to be used to prepay the Loan pursuant to Section 2.1(c)(ii); (iv) for so long as the Junior Mezzanine Loan remains outstanding, all remaining amounts to the Junior Mezzanine Cash Management Account; and (v) if the Junior Mezzanine Loan is no longer outstanding, all remaining amounts to such account as shall be designated by Borrower from time to time, unless a Mortgage Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management Account. (c) If on any Payment Date the amount in the Cash Management Account shall be insufficient to make the transfer described in Section 3.2(b)(i), Borrower shall deposit into the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail to make such deposit, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c). (d) Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectively.
Appears in 2 contracts
Samples: Senior Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.), Senior Mezzanine Loan Agreement (Gramercy Capital Corp)
Distributions from Cash Management Account. (a) The Cash Management Agreement Lender shall provide that transfer from the Cash Management Bank shall remit Account to the Junior Mezzanine Cash Management Distribution Account, at the end of each Business Day (or, at Borrower’s election, on a less frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), Lender on the next Payment Date pursuant to Section 3.2(b) hereto (the “Minimum Balance”); provided, however, that Lender shall terminate such remittances during the continuance of an Event of Default upon notice to the Cash Management Bank. Lender may notify the Cash Management Bank at any time of any change in the Minimum Balance. Lender shall deliver a copy of any notice of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan DocumentsTrigger Period.
(b) On each Payment Date, provided no Event of Default is continuing (and, if and to the extent Lender so elects in its sole discretion, during the continuance of an Event of Default until the Loan has occurred and is continuingbeen accelerated), Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) to the Tax and Insurance Escrow Account, the amounts then required to be deposited therein pursuant to Section 3.4;
(ii) to Lender, the amount of all scheduled or delinquent interest and principal on the Loan and all other amounts then due and payable under the Loan Documents;
Documents (ii) to Lender, with any Restricted Cash required to be used to prepay the Loan pursuant to Section 2.1(c)(iamounts in respect of principal paid last);
(iii) if an FF&E Reserve Period shall be in effect, to Lenderthe Hyatt Herald Square FF&E Reserve Account and the Hyatt Place FF&E Reserve Account, any Xxxx Excess Cash Flow the respective amounts required to be used to prepay the Loan deposited therein pursuant to Section 2.1(c)(ii)3.5;
(iv) for so long as during the Junior Mezzanine Loan remains outstandingcontinuance of a Trigger Period or Event of Default, all remaining amounts to the Junior Mezzanine Excess Cash Management Flow Reserve Account; and
(v) if the Junior Mezzanine Loan no Trigger Period or Event of Default is no longer outstandingcontinuing, all remaining amounts to such account as shall be designated by Borrower from time to time, unless a Mortgage Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management Distribution Account.
(c) If on any Payment Date the amount in the Cash Management Account shall be is insufficient to make all of the transfer transfers described in Section 3.2(b)(iabove (other than remittance of excess cash to the Excess Cash Flow Reserve Account or the Distribution Account), then Borrower shall deposit into remit to the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail fails to make remit such depositamount to the Cash Management Account, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c3.9(c).
(d) Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectively.
Appears in 1 contract
Distributions from Cash Management Account. (a) The Cash Management Agreement shall provide that the Cash Management Bank shall remit to the Junior Mezzanine Cash Management Accountan account specified by Borrower, at the end of each Business Day (or, at Borrower’s election, on a less frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), on the next Payment Date pursuant to Section 3.2(b) (the “Minimum Balance”); provided, however, that Lender shall terminate such remittances during the continuance of an Event of Default or Mortgage Loan Event of Default upon notice to the Cash Management Bank. Lender may notify the Cash Management Bank at any time of any change in the Minimum Balance. Lender shall deliver a copy of any notice of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan Documents.
(b) On each Payment Date, provided no Event of Default has occurred and is continuing, Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) to Lender, the amount of all scheduled or delinquent interest on the Loan and all other amounts then due and payable under the Loan Documents;
(ii) to Lender, any Restricted Cash required to be used to prepay the Loan pursuant to Section 2.1(c)(i);
(iii) to Lender, any all Xxxx Excess Cash Flow required to be used to prepay the Loan pursuant to Section 2.1(c)(ii);; and
(iv) for so long as the Junior Mezzanine Loan remains outstanding, all remaining amounts to the Junior Mezzanine Cash Management Account; and
(v) if the Junior Mezzanine Loan is no longer outstanding, all remaining amounts to such account accounts as Borrower shall be designated by Borrower direct from time to time, unless a Mortgage Loan Event of Default shall have occurred and be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management Account.
(c) If on any Payment Date the amount in the Cash Management Account shall be insufficient to make the transfer described in Section 3.2(b)(i3.2(b)(i)-(iii), Borrower shall deposit into the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail to make such deposit, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c).
(d) Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectively.
Appears in 1 contract
Samples: Junior Mezzanine Loan Agreement (Gramercy Capital Corp)
Distributions from Cash Management Account. (a) The Cash Management Agreement shall provide that the Cash Management Bank shall remit to the Junior Mezzanine Cash Management Qualified Operating Expense Account, at the end of each Business Day (or, at Borrower’s election, on a less frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), Lender on the next Payment Date pursuant to Section 3.2(b) hereto (the “Minimum Balance”); provided, however, that Lender shall terminate such remittances during the continuance of an Event of Default or Trigger Period upon notice to the Cash Management Bank. Lender may notify the Cash Management Bank at any time of any change in the Minimum Balance. Lender shall deliver a copy of any notice of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan Documents.
(b) On each Payment Date, provided no Event of Default has occurred and is continuing, Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) to the Basic Carrying Costs Escrow Account, the amounts then required to be deposited therein pursuant to Section 3.4;
(ii) to Lender, the amount of all scheduled or delinquent interest and principal on the Loan and all other amounts then due and payable under the Loan Documents;
Documents (ii) to Lender, with any Restricted Cash required to be used to prepay the Loan pursuant to Section 2.1(c)(iamounts in respect of principal paid last);
(iii) during the continuance of a Trigger Period, to Lenderthe Qualified Operating Expense Account, any Xxxx Excess Cash Flow required an amount equal to the Budgeted Operating Expenses for the month in which such Payment Date occurs, to the extent such Budgeted Operating Expenses have not previously been paid by Approved Property Manager in accordance with the Approved Management Agreement, as certified by Maryland Guarantor in an Officer’s Certificate delivered to Lender at least five Business Days prior to such payment date, provided that the amounts disbursed to such account pursuant to this clause (iii) shall be used solely to prepay pay Budgeted Operating Expenses for such month (Obligor agreeing that, in the Loan pursuant event that such Budgeted Operating Expenses exceed the actual operating expenses for such month, such excess amounts shall be remitted to Section 2.1(c)(iithe Cash Management Account prior to the next succeeding Payment Date);
(iv) for so long as to the Junior Mezzanine Loan remains outstandingFF&E Reserve Account, the amounts, if any, required to be deposited therein pursuant to Section 3.6;
(v) during the continuance of a Trigger Period, all remaining amounts to the Junior Mezzanine Excess Cash Management Flow Reserve Account; and
(vvi) if the Junior Mezzanine Loan no Trigger Period is no longer outstandingcontinuing, all remaining amounts to such account as shall be designated by Borrower from time to time, unless a Mortgage Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management Qualified Operating Expense Account.
(c) If on any Payment Date the amount in the Cash Management Account shall be insufficient to make all of the transfer transfers described in Section 3.2(b)(i) through (iv), Borrower shall deposit into the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail to make such deposit, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c3.10(c).
(d) Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectively.
Appears in 1 contract
Distributions from Cash Management Account. (a) The Cash Management Agreement shall provide that the Cash Management Bank shall remit to the Junior Mezzanine Cash Management Accountan account specified by Borrower, at the end of each Business Day (or, at Borrower’s election, on a less frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), Lender on the next Payment Date pursuant to Section 3.2(b) hereto (the “Minimum Balance”); provided, however, that Lender shall terminate such remittances during the continuance of an Event of Default or Trigger Period upon notice to the Cash Management Bank. Lender may notify the Cash Management Bank at any time of any change in the Minimum Balance. Lender shall deliver a copy of any notice of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan Documents.
(b) On each Payment Date, provided no Event of Default has occurred and is continuing, Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) to the Basic Carrying Costs Escrow Account, the amounts then required to be deposited therein pursuant to Section 3.4;
(ii) to Lender, the amount of all scheduled or delinquent interest and principal on the Loan and all other amounts then due and payable under the Loan Documents;
Documents (ii) to Lender, with any Restricted Cash required to be used to prepay the Loan pursuant to Section 2.1(c)(iamounts in respect of principal paid last);
(iii) during the continuance of a Trigger Period, to LenderBorrower, any Xxxx Excess Cash Flow required an amount equal to the Budgeted Operating Expenses for the month in which such Payment Date occurs, provided that the amounts disbursed to Borrower pursuant to this clause (iii) shall be used by Borrower solely to prepay pay Budgeted Operating Expenses for such month (reduced by the Loan pursuant amount, if any, by which Budgeted Operating Expenses disbursed in the previous month exceeded actual operating expenses for such month) and provided further that no amounts will be disbursed to Section 2.1(c)(ii)Borrower in respect of the fees of the Approved Property Manager to the extent such fees exceed 3% of Operating Income;
(iv) for so long as to the Junior Mezzanine Loan remains outstandingTI/LC Reserve Account, any amount required to be deposited therein pursuant to Section 3.5;
(v) during the continuance of a Trigger Period, all remaining amounts to the Junior Mezzanine Excess Cash Management Flow Reserve Account; and
(vvi) if the Junior Mezzanine Loan no Trigger Period is no longer outstandingcontinuing, all remaining amounts to such account accounts as shall be designated by Borrower from time to time, unless a Mortgage Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management Accountmay direct.
(c) If on any Payment Date the amount in the Cash Management Account shall be insufficient to make all of the transfer transfers described in Section 3.2(b)(i) through (iv), Borrower shall deposit into the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail to make such deposit, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c3.9).
(d) Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectively.
Appears in 1 contract
Distributions from Cash Management Account. (a) The Cash Management Agreement shall provide that the Cash Management Bank shall remit to the Junior Mezzanine Cash Management Qualified Operating Expense Account, at the end of each Business Day (or, at Borrower’s election, on a less frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), Lender on the next Payment Date pursuant to Section 3.2(b) hereto (the “Minimum Balance”); provided, however, that Lender shall have the right to terminate such remittances during the continuance of an Event of Default or Trigger Period upon notice to the Cash Management Bank. Lender may notify the Cash Management Bank at any time of any change in the Minimum Balance. Lender shall deliver a copy of any notice of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan Documents.
(b) On each Payment Date, provided no Event of Default has occurred and is continuing, Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) during the continuance of a Trigger Period, to the Basic Carrying Costs Escrow Account, the amounts then required to be deposited therein pursuant to Section 3.4;
(ii) to Lender, the amount of all scheduled or delinquent payments of interest and principal on the Loan and all other amounts then due and payable under the Loan Documents;
Documents (ii) to Lender, with any Restricted Cash required to be used to prepay the Loan pursuant to Section 2.1(c)(iamounts in respect of principal paid last);
(iii) during the continuance of a Trigger Period, to Lenderthe Qualified Operating Expense Account, any Xxxx Excess Cash Flow required an amount equal to the Budgeted Operating Expenses for the month in which such Payment Date occurs, provided that the amounts disbursed to such account pursuant to this clause (iii) shall be used by Borrower solely to prepay pay Budgeted Operating Expenses for such month (Borrower agreeing that, in the Loan event that Budgeted Operating Expenses disbursed to Borrower in respect of such month exceed the actual operating expenses for such month, such excess amounts shall be remitted by Borrower to the Cash Management Account prior to the next succeeding Payment Date if a Trigger Period is continuing on such Payment Date) and provided further that amounts will be disbursed to Borrower pursuant to Section 2.1(c)(ii)this clause (iii) in respect of the fees of the Approved Property Manager solely to the extent such fees do not exceed 4% of gross Revenues;
(iv) for so long as to the Junior Mezzanine Loan remains outstandingCapital Expenditure Reserve Account, the amounts required to be deposited therein pursuant to Section 3.6;
(v) to the TI/LC Reserve Account, any amount required to be deposited therein pursuant to Section 3.5;
(vi) during the continuance of a Trigger Period, all remaining amounts to the Junior Mezzanine Excess Cash Management Flow Reserve Account; and
(vvii) if the Junior Mezzanine Loan no Trigger Period is no longer outstandingcontinuing, all remaining amounts to such account as shall be designated by Borrower from time to time, unless a Mortgage Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management Qualified Operating Expense Account.
(c) If on any Payment Date the amount in the Cash Management Account shall be insufficient to make all of the transfer transfers described in Section 3.2(b)(i) through (v), Borrower shall deposit into the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail to make such deposit, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c3.10(c).
(d) Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause Agreement or provision contained in this Agreement, the other Loan Documents, and/or and provided that no Event of Default has occurred and is continuing, Borrower’s obligations with respect to the Junior Mezzanine payment of scheduled or delinquent payments of interest and principal on the Loan and all other amounts then due and payable under the Loan Documents to the effect that payments, distributions, or other similar effect are and amounts required to be made by Borrower to Junior Mezzanine Lender or applied to deposited into the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision Collateral Accounts shall be deemed satisfied to mean, and shall be construed as meaning, that Lender shall pay the extent sufficient amounts are deposited in the Cash Management Account to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, satisfy such obligations pursuant to this Agreement and the Cash Management Agreement on the dates that each such payment is required, regardless of whether any of such amounts are so applied by Lender, provided that Lender’s access to such amounts is not obstructed or interfered with in accordance with any way by the organizational documents activities of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and or its affiliates or by any such clause action or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate proceeding affecting any of them or the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectivelyCollateral.
Appears in 1 contract
Distributions from Cash Management Account. (a) The Cash Management Agreement Lender shall provide that transfer from the Cash Management Bank shall remit Account to the Junior Mezzanine Cash Management Operating Account, at the end of each Business Day (or, at Borrower’s election, on a less frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), Lender on the next Payment Date pursuant to Section 3.2(b) (the “Minimum Balance”)hereto; provided, however, that Lender shall terminate such remittances during the continuance of an Event of Default upon notice to the Cash Management Bankor Trigger Period. Lender may notify the Cash Management Bank at any time of any change in the Minimum Balance. Lender shall deliver a copy of any notice of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan Documents.
(b) On each Payment Date, provided no Event of Default is continuing (and, if and to the extent Lender so elects in its sole discretion, during the continuance of an Event of Default until the Loan has occurred and is continuingbeen accelerated), Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) to the Basic Carrying Costs Escrow Account, the amounts then required to be deposited therein pursuant to Section 3.4;
(ii) to Lender, the amount of all scheduled or delinquent interest and principal on the Loan and all other amounts then due and payable under the Loan Documents;
Documents (ii) to Lender, with any Restricted Cash required to be used to prepay the Loan pursuant to Section 2.1(c)(iamounts in respect of principal paid last);
(iii) during the continuance of a Trigger Period, to Lenderthe Operating Account, any Xxxx Excess Cash Flow required an amount equal to the Budgeted Operating Expenses for the month following the month in which such Payment Date occurs, provided that the amounts disbursed to such account pursuant to this clause (iii) shall be used by Borrower solely to prepay pay Budgeted Operating Expenses for such month (Borrower agreeing that, in the Loan pursuant event that such Budgeted Operating Expenses exceed the actual operating expenses for such month, such excess amounts shall be remitted by Borrower to Section 2.1(c)(ii)the Cash Management Account prior to the next succeeding Payment Date) and provided further that no amounts will be disbursed to Borrower in respect of the fees of the Approved Property Manager to the extent such fees exceed the Maximum Management Fee;
(iv) for so long as during the Junior Mezzanine Loan remains outstandingcontinuance of a Low NOI Period or Trigger Period, to the Capital Expenditure Reserve Account, the amount, if any, required to be deposited therein pursuant to Section 3.6;
(v) during the continuance of a Low NOI Period or Trigger Period, to the TI/LC Reserve Account, the amount, if any, required to be deposited therein pursuant to Section 3.5;
(vi) during the continuance of a Trigger Period or Event of Default, all remaining amounts to the Junior Mezzanine Excess Cash Management Flow Reserve Account; and
(vvii) if the Junior Mezzanine Loan no Trigger Period or Event of Default is no longer outstandingcontinuing, all remaining amounts to such account as shall be designated by Borrower from time to time, unless a Mortgage Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management Operating Account.
(cb) If on any Payment Date the amount in the Cash Management Account shall be is insufficient to make all of the transfer transfers described in Section 3.2(b)(iabove (other than remittance of excess cash to the Excess Cash Flow Reserve Account or the Operating Account), then Borrower shall deposit into remit to the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail fails to make remit such depositamount to the Cash Management Account, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c3.10(c).
(d) Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectively.
Appears in 1 contract
Samples: Loan Agreement (Parkway, Inc.)
Distributions from Cash Management Account. (a) The Cash Management Agreement shall provide that the Cash Management Bank shall remit to the Junior Mezzanine Cash Management Accountan account specified by Borrower, at the end of each Business Day (or, at Borrower’s election, on a less frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), on the next Payment Date pursuant to Section 3.2(b) (the “Minimum Balance”); provided, however, that Lender shall terminate such remittances during the continuance of an Event of Default upon notice to the Cash Management Bank. Lender may notify the Cash Management Bank at any time of any change in the Minimum Balance. Lender shall deliver a copy of any notice of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan Documents.
(b) On each Payment Date, provided no Event of Default has occurred and is continuing, Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) to Lender, the amount of all scheduled or delinquent interest on the Loan and all other amounts then due and payable under the Loan Documents;
(ii) to Lender, any Restricted Cash required to be used to prepay the Loan pursuant to Section 2.1(c)(i2.1(c)(iii);; and
(iii) to Lender, any all Xxxx Excess Cash Flow required to be used to prepay the Loan pursuant to Section 2.1(c)(ii);
(iv) for so long as the Junior Mezzanine Loan remains outstanding, all any remaining amounts to the Junior Mezzanine Cash Management Account; and
(v) if the Junior Mezzanine Loan is no longer outstanding, all remaining amounts to such an account as shall be designated by Borrower from time to time, unless a Mortgage Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management Accounttime by Borrower.
(c) If on any Payment Date the amount in the Cash Management Account shall be insufficient to make the transfer described in Section 3.2(b)(i), Borrower shall deposit into the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail to make such deposit, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c).
(d) Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectively.
Appears in 1 contract
Distributions from Cash Management Account. (a) The Cash Management Agreement Lender shall provide that transfer (or shall cause to be transferred) from the Cash Management Bank shall remit Account to the Junior Mezzanine Cash Management Operating Account, at the end of each Business Day (or, at Borrower’s election, on a less frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to to, or reserved with Lenderwith, or prepaid pursuant to Section 2.1(c)(i), Lender on the next Payment Date pursuant hereto to make the payments set forth in Section 3.2(b) (the “Minimum Balance”); provided, however, that Lender shall immediately terminate such remittances upon the occurrence and during the continuance of an Event of Default upon notice to the or Cash Management Bank. Lender may notify the Cash Management Bank at any time of any change in the Minimum Balance. Lender shall deliver a copy of any notice of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan DocumentsFlow Sweep Period.
(b) On each Payment Date, provided no Event of Default is continuing (and, if and to the extent Lender so elects in its sole discretion, during the continuance of an Event of Default until the Loan has occurred and is continuingbeen accelerated), Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) to the Basic Carrying Costs Escrow Account, the amounts then required to be deposited therein pursuant to Section 3.4;
(ii) to Lender, the amount of all scheduled or delinquent interest and principal on the Loan and all other amounts then due and payable under the Loan Documents;
Documents (ii) to Lender, with any Restricted Cash required to be used to prepay the Loan pursuant to Section 2.1(c)(iamounts in respect of principal paid last);
(iii) to Lender, any Xxxx Excess during the continuance of a Cash Flow required Sweep Period, to the Operating Account, an amount equal to the Budgeted Operating Expenses for the month in which such Payment Date occurs (excluding any amounts deposited into the Basic Carrying Costs Escrow Account in respect of Property Taxes and Insurance Premiums pursuant to clause (i) above); provided that the amounts disbursed to such account pursuant to this clause (iii) shall be used by Borrower solely to prepay pay Budgeted Operating Expenses for such month or prior months (without duplication) (Borrower agreeing that, in the Loan pursuant event that such Budgeted Operating Expenses exceed the actual operating expenses for such month, such excess amounts shall be remitted by Borrower to Section 2.1(c)(iithe Cash Management Account prior to the next succeeding Payment Date); and provided, further, that no amounts will be disbursed to Borrower in respect of the base management fees of Approved Property Manager to the extent such base management fees exceed the Maximum Management Fee;
(iv) for so long as during the Junior Mezzanine Loan remains outstandingcontinuance of a Cash Flow Sweep Period or, if Lender makes the election described in Section 3.2(b) above, Event of Default, all remaining amounts to the Junior Mezzanine Cash Management Flow Sweep Reserve Account; and
(v) if the Junior Mezzanine Loan no Cash Flow Sweep Period or Event of Default is no longer outstandingcontinuing, all remaining amounts to such account as shall be designated by Borrower from time to time, unless a Mortgage Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management Operating Account.
(c) If If, on any Payment Date Date, the amount in the Cash Management Account shall be is insufficient to make all of the transfer transfers described in Section 3.2(b)(iabove (other than remittance of excess cash to the Cash Flow Sweep Reserve Account or the Operating Account), then Borrower shall deposit into remit to the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail fails to make remit such depositamount to the Cash Management Account on such Payment Date, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c3.9(c).
(d) Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectively.
Appears in 1 contract
Samples: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Distributions from Cash Management Account. (a) The Cash Management Agreement shall provide that the Cash Management Bank shall remit to the Junior Mezzanine Cash Management Account, at At the end of each Business Day (or, at Borrower’s election, on a less frequent basis)Day, the amount, if any, by which amounts then contained Collection Account Bank shall remit all available funds in the Cash Management Collection Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), on the next Payment Date pursuant to Section 3.2(b) (the “Minimum Balance”); provided, however, that Lender shall terminate such remittances during the continuance of an Event of Default upon notice to the Cash Management Bank. Lender may notify the Cash Management Bank at any time of any change in the Minimum Balance. Lender shall deliver a copy of any notice of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan DocumentsAccount.
(b) On each Business Day, provided no Event of Default has occurred and no Cash Management Period or Mezzanine Cash Management Period exists, the Cash Management Bank shall withdraw all available funds in the Cash Management Account and shall disburse such funds in the following order of priority until such time as the maximum amount required to be deposited in each Collateral Account has been so deposited:
(i) intentionally deleted;
(ii) to the Tax and Insurance Escrow Account, the amount required to be deposited therein pursuant to Section 6.3;
(iii) to the Debt Service Account, the amount required to be deposited therein pursuant to Section 6.4;
(iv) to the Capital Expenditure Reserve Account, the amount required to be deposited therein pursuant to Section 6.6; and
(v) any remaining amounts to the Mezzanine Cash Management Account; provided, however, if the Mezzanine Loan shall have been paid in full, any remaining amounts shall be disbursed to such account as the applicable Borrower may direct.
(c) If a Cash Management Period or Mezzanine Cash Management Period exists but no Event of Default has occurred and is continuing, the Cash Management Bank shall withdraw on each Business Day all available funds in the Cash Management Account and shall disburse such funds in the following order of priority until such time as the maximum amount required to be deposited in each Collateral Account has been so deposited:
(i) intentionally deleted;
(ii) to the Tax and Insurance Escrow Account, the amount required to be deposited therein pursuant to Section 6.3;
(iii) to the Debt Service Account, the amount required to be deposited therein pursuant to Section 6.4;
(iv) to the Operating Expense Reserve Account, the amount required to be deposited therein pursuant to Section 6.5;
(v) to the Capital Expenditure Reserve Account, the amount required to be deposited therein pursuant to Section 6.6; and
(vi) any remaining amounts to be disbursed as follows:
(1) if no Cash Management Period exists and the Mezzanine Loan is outstanding, to the Mezzanine Cash Management Account;
(2) if a Cash Management Period exists and the Mezzanine Loan is outstanding, to the Mezzanine Cash Management Account in an amount equal to the Mezzanine Debt Service due on the next Mezzanine Payment Date, provided no with any amounts in excess thereof, to the Excess Cash Reserve Account; or
(3) if a Cash Management Period exists and the Mezzanine Loan is not outstanding, all remaining amounts to the Excess Cash Reserve Account.
(d) If an Event of Default has occurred and is continuing, Lender shall transfer amounts from the promptly notify Cash Management AccountBank of such Event of Default and Lender may, in addition to the extent available therein, to make the following payments in the following order of priority:
(i) to Lender, the amount of all scheduled or delinquent interest on the Loan and all other amounts then due rights and payable remedies provided for under the Loan Documents;
(ii) to Lender, any Restricted Cash required to be used to prepay disburse and apply the Loan pursuant to Section 2.1(c)(i);
(iii) to Lender, any Xxxx Excess Cash Flow required to be used to prepay amounts in the Loan pursuant to Section 2.1(c)(ii);
(iv) for so long as the Junior Mezzanine Loan remains outstanding, all remaining amounts to the Junior Mezzanine Cash Management Account; and
(v) if Account toward the Junior Mezzanine Loan is no longer outstandingpayment of the Debt and/or toward the payment of Basic Carrying Costs, all remaining amounts to such account as shall be designated by Borrower from time to time, unless a Mortgage Loan Event of Default shall be continuingOperating Expenses or Capital Expenditures, in which case, all remaining amounts such sequence as Lender shall be remitted to the Mortgage Loan Cash Management Accountelect in its sole discretion.
(ce) If on any Payment Date the amount Date, any Collateral Account has not been fully funded in the Cash Management Account shall be insufficient to make the transfer applicable amount described in Section 3.2(b)(i6.2(b) or Section 6.2(c), Borrower as applicable, Borrowers shall deposit into the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower Borrowers shall fail to make such deposit, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts Cash Management Account toward the payment of the Debt and/or toward the payment of Basic Carrying Costs, Operating Expenses or Capital Expenditures, in accordance with Section 3.5(c).
(d) Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, such sequence as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and elect in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectivelysole discretion.
Appears in 1 contract
Samples: Loan Agreement (Ventas Inc)
Distributions from Cash Management Account. (a) The Cash Management Agreement Lender shall provide that transfer from the Cash Management Bank shall remit Account to the Junior Mezzanine Cash Management Owner Account, at the end of each Business Day (or, at Borrower’s election, on a less frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), Lender and Mezzanine Lender on the next Payment Date pursuant to Section 3.2(b) hereto (the “Minimum Balance”); provided, however, that Lender shall terminate such remittances during the continuance of an Event of Default upon notice to the Cash Management Bank. Lender may notify the Cash Management Bank at any time of any change in the Minimum Balance. Lender shall deliver a copy of any notice of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan DocumentsTrigger Period.
(b) On each Payment Date, provided no Event of Default is continuing (and, if and to the extent Lender so elects in its sole discretion, during the continuance of an Event of Default until the Loan has occurred and is continuingbeen accelerated), Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) to the Basic Carrying Costs Escrow Account, the amount, if any, required to be deposited therein pursuant to Section 3.4;
(ii) to Lender, the amount of all scheduled or delinquent interest and principal on the Loan Loan, the Administrative Fee and all other amounts then due and payable under the Loan Documents;
Documents (ii) to Lender, with any Restricted Cash required to be used to prepay the Loan pursuant to Section 2.1(c)(iamounts in respect of principal paid last);
(iii) to Lenderthe FF&E Reserve Account, any Xxxx Excess Cash Flow the amount, if any, required to be used to prepay the Loan deposited therein pursuant to Section 2.1(c)(ii)3.5;
(iv) for so long as if there is a Mezzanine Loan, and provided that no Event of Default is then continuing, to Mezzanine Lender, all scheduled interest then due and payable in respect of the Junior Mezzanine Loan remains outstandingLoan;
(v) during the continuance of a Trigger Period or Event of Default, all remaining amounts to the Junior Mezzanine Excess Cash Management Flow Reserve Account; and
(vvi) if the Junior Mezzanine Loan no Trigger Period or Event of Default is no longer outstandingcontinuing, all remaining amounts to such account as shall be designated by Borrower from time to time, unless a Mortgage Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management Owner Account.
(c) If on any Payment Date the amount in the Cash Management Account shall be is insufficient to make all of the transfer transfers described above (other than the remittance of excess cash to the Excess Cash Flow Reserve Account or the Owner Account and any payment in Section 3.2(b)(irespect of the Mezzanine Loan), then Borrower shall deposit into remit to the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail fails to make remit such depositamount to the Cash Management Account, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c3.9(c).
(d) Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectively.
Appears in 1 contract
Samples: Loan Agreement (Aspen REIT, Inc.)
Distributions from Cash Management Account. (a) The Cash Management Agreement shall provide that the Cash Management Bank shall remit to the Junior Mezzanine Cash Management Accountan account specified by Borrower, at the end of each Business Day (or, at Borrower’s election, on a less frequent basis)Day, the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with LenderPeg Balance; PROVIDED, or prepaid pursuant to Section 2.1(c)(i), on the next Payment Date pursuant to Section 3.2(b) (the “Minimum Balance”); provided, howeverHOWEVER, that Lender shall may terminate such remittances during the continuance of an Event of Default or Cash Trap Period upon notice to the Cash Management Bank. Lender may notify the Cash Management Bank at any time of any change in the Minimum Peg Balance. Lender shall deliver a copy of any notice of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan Documents.
(b) On each Payment Date, provided no Event of Default has occurred and is continuing, Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) to the Tax and Insurance Reserve Account, the amounts then required to be deposited therein pursuant to SECTION 3.4;
(ii) to Lender, the amount of all scheduled or delinquent interest on the Loan and all other amounts then due and payable under the Loan Documents;
(iiiii) during the continuance of a Cash Trap Period, to LenderBorrower, any Restricted Cash required the amount payable by Borrower during the following 30-day period in respect of Operating Expenses included in the Approved Annual Budget, to be used the extent amounts previously distributed to prepay the Loan pursuant to Section 2.1(c)(i);
Borrower under this clause (iii) and not previously applied toward Operating Expenses are insufficient to Lendermake such payments (as notified by Borrower to Lender in writing at least five Business Days prior to such Payment Date), PROVIDED that the aggregate amount remitted to Borrower under this clause (iii) in any Xxxx Excess Cash Flow required Fiscal Year shall not exceed the Budgeted Annual Operating Expense Amount, and PROVIDED FURTHER that the amounts disbursed to Borrower pursuant to this clause (iii) shall be used by Borrower solely to prepay pay Operating Expenses included in the Loan pursuant to Section 2.1(c)(ii)Approved Annual Budget;
(iv) for so long during the continuance of a Cash Trap Period, to the Capital Reserve Account, the amounts required to be deposited therein pursuant to SECTION 3.6(b), plus any additional amount payable by Borrower during the following 30-day period in respect of Capital Expenditures included in the Approved Annual Budget, to the extent amounts available in the Capital Reserve Account are insufficient to make such payments (as notified by Borrower to Lender in writing at least five Business Days prior to such Payment Date), PROVIDED that the Junior Mezzanine Loan remains outstandingaggregate amount remitted to the Capital Reserve Account under this clause (iv) in any Fiscal Year shall not exceed the Budgeted Annual Capital Expenditure Amount, and PROVIDED FURTHER that the amounts disbursed to the Capital Reserve Account pursuant to this clause (iv) shall be used by Borrower solely to pay Capital Expenditures included in the Approved Annual Budget;
(v) during the continuance of a Cash Trap Period, to the TI/LC Reserve Account, any amount required to be deposited therein pursuant to SECTION 3.5;
(vi) during the continuance of a Cash Trap Period, all remaining amounts to the Junior Mezzanine Cash Management Trap Account; and
(vvii) if the Junior Mezzanine Loan no Cash Trap Period is no longer outstandingcontinuing, all remaining amounts ("EXCESS CASH FLOW") to such account accounts as shall be designated by Borrower from time to time, unless a Mortgage Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management Accountmay direct.
(c) If on any Payment Date the amount in the Cash Management Account shall be insufficient to make the transfer described in Section 3.2(b)(i), Borrower shall deposit into the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail to make such deposit, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c).
(d) Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectively.
Appears in 1 contract
Samples: Loan Agreement (Las Vegas Sands Inc)
Distributions from Cash Management Account. (a) The Cash Management Agreement shall provide that the Cash Management Bank shall remit to the Junior Mezzanine Cash Management Accountan account specified by Borrower, at the end of each Business Day (or, at Borrower’s election, on a less frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), Lender and the Mezzanine Lenders on the next Payment Date pursuant to Section 3.2(bthis Agreement and the Mezzanine Loan Agreements (plus any additional amounts retained in such account by the Cash Management Bank in accordance with the second following proviso) (the “Minimum Peg Balance”); provided, however, that Lender shall terminate such remittances during the continuance of an Event of Default upon notice to or Mezzanine Loan Event of Default (and once again continue such remittances when no Event of Default or Mezzanine Loan Event of Default exists, provided that the Loan has not theretofore been accelerated); and provided further, that the Cash Management BankBank may retain in the Cash Management Account a nominal amount of funds (not to exceed $5,000) for the purpose of covering miscellaneous fees and charges associated with the administration of the Cash Management Account to the extent provided in the Cash Management Agreement. Lender may notify the Cash Management Bank at any time of any change in the Minimum Peg Balance. Lender Any amounts so remitted to Borrower during the continuance of the Sponsor Guaranty Effectiveness Period shall deliver a copy of any notice of a change be applied by Borrower, ACEP and/or Operating Lessee solely in the Minimum Balance to Borrowermanner permitted under Section 3.2(b)(xv), for information only (but and any failure by Lender to do amount not so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 applied shall be received free remitted by Borrower or Operating Lessee into the Dividend Reserve Account on or prior to such next succeeding Payment Date. On the Closing Date, Borrower shall remit into the Cash Management Account an amount equal to the Peg Balance (estimated based on LIBOR as of the Lien of Closing Date) applicable to the Loan DocumentsApril 2008 Payment Date, which the parties agree is $7,702,751.91.
(b) On each Payment Date, provided no Event of Default has occurred and is continuing, Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) to the Tax and Insurance Reserve Account, the amount then required to be deposited therein pursuant to Section 3.4;
(ii) to Lender, the amount of all scheduled or delinquent interest on the Loan and all other amounts then due and payable under the Loan Documents;
(iiiii) to Lenderthe FF&E Reserve Account, any Restricted Cash the amount required to be used to prepay the Loan deposited therein pursuant to Section 2.1(c)(i);
(iii) to Lender, any Xxxx Excess Cash Flow required to be used to prepay the Loan pursuant to Section 2.1(c)(ii)3.6;
(iv) for so long as during the Junior continuance of a Mezzanine Loan remains outstandingEvent of Default, or at the request of Borrower by written notice delivered no later than five Business Days prior to the relevant Payment Date, or otherwise as required by Lender in its sole discretion, to the Borrower, an amount equal to the Budgeted Operating Expenses for the month in which such Payment Date occurs, provided that the amounts disbursed to Borrower pursuant to this clause (iv) shall be used by Borrower and/or Operating Lessee solely to pay Budgeted Operating Expenses for such month (Borrower agreeing that, in the event that such Budgeted Operating Expenses exceed the actual operating expenses for such month, such excess amounts shall be remitted by Borrower to the Cash Management Account prior to the next succeeding Payment Date); and provided further that no amounts will be disbursed to Borrower in respect of the fees of the Approved Property Manager to the extent such fees exceed those expressly set forth in the Approved Management Agreement;
(v) during the continuance of the Sponsor Guaranty Effectiveness Period or a Mezzanine Loan Event of Default, or at the request of Borrower upon written notice delivered no later than five Business Days prior to the relevant Payment Date, to Borrower, an amount equal to the Extraordinary Expenses incurred and outstanding for the month in which such Payment Date occurs;
(vi) until Lender shall have received notice from Mezzanine A Lender that the Mezzanine A Loan has been repaid in full, to Mezzanine A Lender, all scheduled or delinquent interest payments then due and payable or past due and payable to Mezzanine A Lender under the Mezzanine A Loan Agreement, as specified by Mezzanine A Lender pursuant to Mezzanine A Lender’s written instructions to Lender;
(vii) until Lender shall have received notice from Mezzanine B Lender that the Mezzanine B Loan has been repaid in full and provided that no Mezzanine A Loan Event of Default is then continuing, to Mezzanine B Lender, all scheduled or delinquent interest payments then due and payable or past due and payable to Mezzanine B Lender under the Mezzanine B Loan Agreement, as specified by Mezzanine B Lender pursuant to Mezzanine B Lender’s written instructions to Lender;
(viii) until Lender shall have received notice from Mezzanine C Lender that the Mezzanine C Loan has been repaid in full and provided that no Mezzanine A Loan Event of Default or Mezzanine B Loan Event of Default is then continuing, to Mezzanine C Lender, all scheduled or delinquent interest payments then due and payable or past due and payable to Mezzanine C Lender under the Mezzanine C Loan Agreement, as specified by Mezzanine C Lender pursuant to Mezzanine C Lender’s written instructions to Lender;
(ix) until Lender shall have received notice from Mezzanine D Lender that the Mezzanine D Loan has been repaid in full and provided that no Mezzanine A Loan Event of Default, Mezzanine B Loan Event of Default or Mezzanine C Loan Event of Default is then continuing, to Mezzanine D Lender, all scheduled or delinquent interest payments then due and payable or past due and payable to Mezzanine D Lender under the Mezzanine D Loan Agreement, as specified by Mezzanine D Lender pursuant to Mezzanine D Lender’s written instructions to Lender;
(x) until Lender shall have received notice from Mezzanine E Lender that the Mezzanine E Loan has been repaid in full and provided that no Mezzanine A Loan Event of Default, Mezzanine B Loan Event of Default, Mezzanine C Loan Event of Default or Mezzanine D Loan Event of Default is then continuing, to Mezzanine E Lender, all scheduled or delinquent interest payments then due and payable or past due and payable to Mezzanine E Lender under the Mezzanine E Loan Agreement, as specified by Mezzanine E Lender pursuant to Mezzanine E Lender’s written instructions to Lender;
(xi) until Lender shall have received notice from Mezzanine F Lender that the Mezzanine F Loan has been repaid in full and provided that no Mezzanine A Loan Event of Default, Mezzanine B Loan Event of Default, Mezzanine C Loan Event of Default, Mezzanine D Loan Event of Default or Mezzanine E Loan Event of Default is then continuing, to Mezzanine F Lender, all scheduled or delinquent interest payments then due and payable or past due and payable to Mezzanine F Lender under the Mezzanine F Loan Agreement, as specified by Mezzanine F Lender pursuant to Mezzanine F Lender’s written instructions to Lender;
(xii) until Lender shall have received notice from Mezzanine G Lender that the Mezzanine G Loan has been repaid in full and provided that no Mezzanine A Loan Event of Default, Mezzanine B Loan Event of Default, Mezzanine C Loan Event of Default, Mezzanine D Loan Event of Default, Mezzanine E Loan Event of Default or Mezzanine F Loan Event of Default is then continuing, to Mezzanine G Lender, all scheduled or delinquent interest payments then due and payable or past due and payable to Mezzanine G Lender under the Mezzanine G Loan Agreement, as specified by Mezzanine G Lender pursuant to Mezzanine G Lender’s written instructions to Lender;
(xiii) until Lender shall have received notice from Mezzanine H Lender that the Mezzanine H Loan has been repaid in full and provided that no Mezzanine A Loan Event of Default, Mezzanine B Loan Event of Default, Mezzanine C Loan Event of Default, Mezzanine D Loan Event of Default, Mezzanine E Loan Event of Default, Mezzanine F Loan Event of Default or Mezzanine G Loan Event of Default is then continuing, to Mezzanine H Lender, all scheduled or delinquent interest payments then due and payable or past due and payable to Mezzanine H Lender under the Mezzanine H Loan Agreement, as specified by Mezzanine H Lender pursuant to Mezzanine H Lender’s written instructions to Lender;
(xiv) until Lender shall have received notice from Mezzanine I Lender that the Mezzanine I Loan has been repaid in full and provided that no Mezzanine A Loan Event of Default, Mezzanine B Loan Event of Default, Mezzanine C Loan Event of Default, Mezzanine D Loan Event of Default, Mezzanine E Loan Event of Default, Mezzanine F Loan Event of Default, Mezzanine G Loan Event of Default or Mezzanine H Loan Event of Default is then continuing, to Mezzanine I Lender, all scheduled or delinquent interest payments then due and payable or past due and payable to Mezzanine I Lender under the Mezzanine I Loan Agreement, as specified by Mezzanine I Lender pursuant to Mezzanine I Lender’s written instructions to Lender;
(xv) during the continuance of the Sponsor Guaranty Effectiveness Period, (x) if a Mezzanine Loan Event of Default is then continuing, all remaining amounts to the Junior Dividend Reserve Account, and (y) if no Mezzanine Cash Management AccountLoan Event of Default is then continuing, to Borrower for application toward Operating Expenses and Capital Expenditures at the Properties in accordance with this Agreement, ACEP Operating Expenses and or prepayment of the Loan and the Mezzanine Loans; andprovided that the amounts disbursed to Borrower pursuant to this clause (xv) shall be applied by Borrower, Operating Lessee and/or ACEP solely to pay such Operating Expenses and Capital Expenditures, ACEP Operating Expenses and/or prepayment of the Loan and the Mezzanine Loans, and Borrower hereby covenants and agrees that any amount remitted to Borrower pursuant to this clause (xv) on any Payment Date that has not been applied toward Operating Expenses and/or Capital Expenditures at the Properties, ACEP Operating Expenses and/or prepayment of the Loan and the Mezzanine Loans prior to the next succeeding Payment Date shall be remitted by Borrower or Operating Lessee into the Dividend Reserve Account on or prior to such next succeeding Payment Date;
(vxvi) if the Junior a Mezzanine A Loan Event of Default is no longer outstandingthen continuing, all remaining amounts to such account as shall be designated by Borrower from time Mezzanine A Lender (until the Mezzanine A Loan is repaid in full) pursuant to time, unless Mezzanine A Lender’s instructions to Lender;
(xvii) if a Mortgage Mezzanine B Loan Event of Default shall be is then continuing (and no Mezzanine A Loan Event of Default is then continuing, in which case), all remaining amounts shall be remitted to Mezzanine B Lender (until the Mortgage Mezzanine B Loan Cash Management Account.is repaid in full) pursuant to Mezzanine B Lender’s instructions to Lender;
(cxviii) If on any Payment Date the amount in the Cash Management Account shall be insufficient to make the transfer described in Section 3.2(b)(i), Borrower shall deposit into the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail to make such deposit, the same shall constitute an if a Mezzanine C Loan Event of Default andis then continuing (and no Mezzanine A Loan Event of Default or Mezzanine B Loan Event of Default is then continuing), all remaining amounts to Mezzanine C Lender (until the Mezzanine C Loan is repaid in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c).
(dfull) Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable Mezzanine C Lender’s instructions to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectively.;
Appears in 1 contract
Samples: Loan Agreement (American Casino & Entertainment Properties LLC)
Distributions from Cash Management Account. (a) The Cash Management Agreement shall provide that the Cash Management Bank shall remit to the Junior Mezzanine Cash Management Accountan account specified by Borrower, at the end of each Business Day (or, at Borrower’s election, on a less frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), Lender on the next Payment Date pursuant to Section 3.2(b) hereto (the “Minimum Balance”); provided, however, that Lender shall terminate such remittances upon the occurrence and during the continuance of an Event of Default or Trigger Period upon notice to the Cash Management Bank. Lender may notify the Cash Management Bank at any time of any change in the Minimum Balance. Lender shall deliver a copy Balance in accordance with the provisions of any notice of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan DocumentsAgreement.
(b) On each Payment Date, provided no Event of Default has occurred and is continuing, Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) provided no Event of Default has occurred and is continuing, to the Basic Carrying Costs Escrow Account, the amounts then required to be deposited therein pursuant to Section 3.4;
(ii) provided no Event of Default has occurred and is continuing, to Lender, the amount of all scheduled or delinquent interest and principal on the Loan and all other amounts then due and payable under the Loan Documents;
Documents (ii) to Lender, with any Restricted Cash required to be used to prepay the amounts in respect of principal paid last); | NY\1631294.13 mle xx xxxx Loan pursuant to Section 2.1(c)(i);Agreement||
(iii) to Lender, any Xxxx Excess Cash Flow required to be used to prepay upon the Loan pursuant to Section 2.1(c)(ii);
(iv) for so long as occurrence and during the Junior Mezzanine Loan remains outstandingcontinuance of an Event of Default or a Trigger Period, all remaining amounts to the Junior Mezzanine Excess Cash Management Flow Reserve Account; and;
(viv) if the Junior Mezzanine Loan no Event of Default or Trigger Period has occurred and is no longer outstandingcontinuing, all remaining amounts to such account accounts as shall be designated by Borrower from time to time, unless a Mortgage Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management Accountmay direct.
(c) If on any Payment Date the amount in the Cash Management Account shall be insufficient to make all of the transfer transfers described in Section 3.2(b)(i) and (ii), Borrower shall deposit into the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail to make such deposit, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c3.8(c).
(d) Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause Agreement or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents and provided no Event of Default has occurred and is continuing, Borrower’s obligations with respect to the effect that payments, distributions, or other similar effect are payment of the amounts required to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision paid under clauses (i) and (ii) of Section 3.2(b) shall be deemed satisfied to mean, and shall be construed as meaning, that Lender shall pay the extent sufficient amounts are deposited in the Cash Management Account to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, satisfy such obligations pursuant to and in accordance with this Agreement on the organizational documents dates each such payment is required, regardless of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate whether any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectivelysuch amounts are so applied by Lender.
Appears in 1 contract
Samples: Loan Agreement (Cole Credit Property Trust III, Inc.)
Distributions from Cash Management Account. (a) The Cash Management Agreement shall provide that the Cash Management Bank shall remit to the Junior an account specified by Mezzanine Cash Management AccountLender, at the end of each Business Day (or, at Borrower’s election, on a less frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i2.1(b), on the next Payment Date pursuant to Section 3.2(b) (the “Minimum Balance”); provided, however, that Lender shall terminate such remittances during the continuance of an Event of Default upon notice to the Cash Management Bank. Lender may notify the Cash Management Bank at any time of any change in the Minimum Balance. Lender shall deliver a copy of any notice of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan Documents.
(b) On each Payment Date, provided no Event of Default has occurred and is continuing, Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) to Lender, the amount of all scheduled or delinquent interest on the Loan and all other amounts then due and payable under the Loan Documents;; and
(ii) to Lender, any Restricted Cash required to be used to prepay the Loan pursuant to Section 2.1(c)(i);
(iii) to Lender, any Xxxx Excess Cash Flow required to be used to prepay the Loan pursuant to Section 2.1(c)(ii);
(iv) for so long as the Junior Mezzanine Loan remains outstanding, all remaining amounts to the Junior Mezzanine Cash Management Account; and
(v) if the Junior Mezzanine Loan is no longer outstanding, all remaining amounts to such account as shall be designated by Borrower Mezzanine Lender from time to time, unless a Mortgage Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management Account.
(c) If on any Payment Date the amount in the Cash Management Account shall be insufficient to make the transfer described in Section 3.2(b)(i), Borrower shall deposit into the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail to make such deposit, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c).
(d) Lender may conclusively rely upon any notice received from Mezzanine Lender with respect to the occurrence, continuance or termination of any Mezzanine Loan Event of Default. Lender shall be under no duty to inquire into or investigate the validity, accuracy or content of any such notice.
(e) Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectively.
Appears in 1 contract
Distributions from Cash Management Account. (a) The Cash Management Agreement Lender shall provide that transfer from the Cash Management Bank shall remit Account to the Junior Mezzanine Cash Management Operating Account, at the end of each Business Day (or, at Borrower’s 's election, on a less frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), Lender on the next Payment Date pursuant to Section 3.2(b) hereto (the “Minimum "Peg Balance”"); provided, however, that Lender shall terminate such remittances during the continuance of an Event of Default upon notice to the Cash Management Bank. Lender may notify the Cash Management Bank at any time of any change in the Minimum Balance. Lender shall deliver a copy of any notice of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan DocumentsTrigger Period.
(b) On each Payment Date, provided no Event of Default is continuing (and, if and to the extent Lender so elects in its sole discretion, during the continuance of an Event of Default until the Loan has occurred and is continuingbeen accelerated), Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) to the Basic Carrying Costs Escrow Account, the amounts then required to be deposited therein pursuant to Section 3.4;
(ii) to Lender, the amount of all scheduled or delinquent interest and principal on the Loan and all other amounts then due and payable under the Loan Documents;
Loan-Documents (ii) to Lender, with any Restricted Cash required to be used to prepay the Loan pursuant to Section 2.1(c)(iamounts in respect of principal paid last);
(iii) during the continuance of a Trigger Period, to Lenderthe Operating Account, any Xxxx Excess Cash Flow required an amount equal to the Budgeted Operating Expenses for the month in which such Payment Date occurs, provided that the amounts disbursed to such account pursuant to this clause (iii) shall be used by Borrower solely to prepay pay Budgeted Operating Expenses for such month (Borrower agreeing that, in the Loan pursuant event that such Budgeted Operating Expenses exceed the actual operating expenses for such month, such excess amounts shall be remitted by Borrower to Section 2.1(c)(ii)the Cash Management Account prior to the next succeeding Payment Date) and provided further that no amounts will be disbursed to Borrower• in respect of the fees of the Approved Property Manager to the extent such fees exceed the Maximum Management Fee;
(iv) for so long to the Capital Expenditure Reserve Account, the amount, if any, required to be deposited therein pursuant to Section 3.6;
(v) to the TI/LC Reserve Account, the amount, if any, required to be deposited therein pursuant to Section 3.5;
(vi) during the continuance of a Trigger Period (which does not exist solely as the Junior Mezzanine Loan remains outstandinga result of a TI/LC Rollover Deposit Period) or Event of Default, all remaining amounts to the Junior Mezzanine Excess Cash Management Flow Reserve Account;
(vii) during the continuance of a Trigger Period which exists solely as a result of a TI/LC Rollover Deposit Period (and not as a result of any other circumstance which commences a Trigger Period, and provided no Event of Default Exists), all remaining amounts to the TI/LC Reserve Account up to the greater of (Y) the TI/LC Rollover Threshold Amount and (Z) the TI/LC Monthly Threshold Amount, and thereafter to the Excess Cash Flow Reserve Account; and
(vviii) if the Junior Mezzanine Loan no Trigger Period or Event of Default is no longer outstandingcontinuing, all remaining amounts to such account as shall be designated by Borrower from time to time, unless a Mortgage Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management Operating Account.
(c) If on any Payment Date the amount in the Cash Management Account shall be is insufficient to make all of the transfer transfers described in Section 3.2(b)(iabove (other than remittance of excess cash to the Excess Cash Flow Reserve Account or the Operating Account), then Borrower shall deposit into remit to the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail fails to make remit such depositamount to the Cash Management Account, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c3.10(c).
(d) Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectively.
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital - Retail Centers of America, Inc.)
Distributions from Cash Management Account. (a) The Cash Management Agreement shall provide that the Cash Management Bank shall remit to the Junior Mezzanine Cash Management Accounta Pledged Operating Account specified by Borrower, at the end of each Business Day (or, at Borrower’s election, on a less frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), Lender and the Agents on the next Payment Date pursuant to Section 3.2(bthis Agreement (plus any additional amounts retained in such account by the Cash Management Bank in accordance with the second following proviso) (the “Minimum Peg Balance”); provided, however, that Lender the Administrative Agent shall terminate such remittances during the continuance of an Event of Default upon notice to (and once again continue such remittances when no Event of Default exists, provided that the Loan has not theretofore been accelerated); and provided further, that the Cash Management BankBank may retain in the Cash Management Account a nominal amount of funds (not to exceed $5,000) for the purpose of covering miscellaneous fees and charges associated with the administration of the Cash Management Account to the extent provided in the Cash Management Agreement. Lender The initial Peg Balance is $7,981,361.11. The Administrative Agent (at the direction of the Required Lenders) may notify the Cash Management Bank at any time of any change in the Minimum Peg Balance. Lender Any amounts so remitted to Borrower shall deliver a copy of any notice of a change be applied by Borrower solely in the Minimum Balance to Borrowermanner permitted under Section 3.2(d), for information only (but and any failure by Lender to do amount not so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 applied shall be received free of remitted by Borrower to the Lien of Excess Cash Flow Reserve Account and the Loan DocumentsSurplus Cash Amortization Reserve Account in accordance with Section 3.2(d).
(b) On each Payment Date, provided no Event of Default has occurred and is continuing, Lender shall Administrative Agent shall, at the direction of the Required Lenders given at least two Business Days prior to each Payment Date in the form of Exhibit L, transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) to Agents and the Servicer (if any), all amounts due and payable to Agents and Servicer (if any) pursuant to the Agent Fee Agreements and the Loan Documents;
(ii) to the Tax and Insurance Reserve Account, the amount then required to be deposited therein pursuant to Section 3.4;
(iii) to Lender, the amount of all scheduled or delinquent interest on the Loan and all other amounts then due and payable under the Loan Documents;
(iiiv) to Lenderthe FF&E Reserve Account, any Restricted Cash the amount required to be used to prepay the Loan deposited therein pursuant to Section 2.1(c)(i)3.6;
(iii) to Lender, any Xxxx Excess Cash Flow required to be used to prepay the Loan pursuant to Section 2.1(c)(ii);
(iv) for so long as the Junior Mezzanine Loan remains outstanding, all remaining amounts to the Junior Mezzanine Cash Management Account; and
(v) if to the Junior Mezzanine Loan is no longer outstandingPledged Operating Account specified by Borrower, all remaining amounts to such account as shall be designated by Borrower from time to time, unless a Mortgage Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management Accountamounts.
(c) If on any Payment Date the amount in the Cash Management Account shall be insufficient to make all of the transfer transfers described in Section 3.2(b)(i) through (iv), Borrower shall deposit into the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail to make such deposit, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender Administrative Agent may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c3.10(c).
(d) Notwithstanding anything All amounts deposited into the Pledged Operating Accounts pursuant to Section 3.2(a) and Section 3.2(b)(v) shall be used by Borrower solely to (i) pay Property Operating Expenses, (ii) make prepayments of the Loan pursuant to Section 2.1(a), (iii) transfer amounts to the contrary contained in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and Gaming Operating Reserve in accordance with the organizational documents terms hereof or (iv) make deposits into the Cash Management Account pursuant to Section 3.2(c). Borrower shall not use the amounts on deposit in the Pledged Operating Accounts to (i) pay the fees of the Approved Property Manager, except to the extent that such fees do not exceed those expressly set forth in the Approved Management Agreement, (ii) pay for FF&E or Capital Expenditures, (iii) pay a dividend to any Person (other than to a Co-Borrower) or (iv) make any payment or distribution to an Affiliate of Borrower, unless agreed to in writing by Administrative Agent (except that Borrower and applicable law, which distribution shall be permitted to pay to Highgate Hotels L.P. (x) a consulting fee out of the Pledged Operating Accounts, to the extent such asset management fee does not to exceed $1,500,000 in the aggregate per annum (provided that, to the extent the amount paid in respect of such consulting fee is less than $1,500,000 in any year, the difference between the amount paid in such year and $1,500,000 may be paid in a subsequent year) and (y) expense reimbursements out of the Pledged Operating Accounts not to exceed $100,000 in any calendar year). On each Payment Date, Borrower shall remit to each of the Excess Cash Flow Reserve Account and the Surplus Cash Amortization Reserve Account an amount equal to 50% times the Working Capital Excess as of the end of the second calendar month immediately payable preceding the calendar month in which such Payment Date occurs (or, at Borrower’s election, such greater amount as Borrower may determine, provided that after giving effect to Junior Mezzanine Lendersuch election, and the Pledged Operating Accounts shall contain amounts sufficient to operate the Properties; the portion of any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or greater amount in any other manner that would violate any excess of the single purpose entity covenants contained in amount required to be remitted to the Surplus Cash Amortization Reserve Account pursuant to this Agreement sentence shall be referred to herein as the “Borrower Election Amount”).
(e) Any Gaming Operating Reserve Excess shall be reasonably promptly remitted into a Pledged Operating Account, to the extent actually withdrawn, disbursed or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectivelyotherwise removed from the Gaming Operating Reserve.
Appears in 1 contract
Samples: Loan Agreement (American Casino & Entertainment Properties LLC)
Distributions from Cash Management Account. (a) The Cash Management Agreement So long as there is no continuing Event of Default or Trigger Period, Lender shall provide that transfer from the Cash Management Bank shall remit Account to the Junior Mezzanine Cash Management Operating Account, at the end of each Business Day month (or, at Borrower’s 's election, on a less or more frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), Lender on the next Payment Date pursuant to Section 3.2(b) (the “Minimum Balance”)hereto; provided, however, that Lender shall terminate such remittances during the continuance of an Event of Default upon notice to the Cash Management Bank. Lender may notify the Cash Management Bank at any time of any change in the Minimum Balance. Lender shall deliver a copy of any notice of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan DocumentsTrigger Period.
(b) On each Payment Date, provided no Event of Default is continuing (and, if and to the extent Lender so elects in its sole discretion, during the continuance of an Event of Default until the Loan has occurred and is continuingbeen accelerated), Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) to the Basic Carrying Costs Escrow Account, the amounts then required to be deposited therein pursuant to Section 3.4;
(ii) to Lender, the amount of all scheduled or delinquent interest and principal on the Loan and all other amounts then due and payable under the Loan Documents;
Documents (ii) to Lender, with any Restricted Cash required to be used to prepay the Loan pursuant to Section 2.1(c)(iamounts in respect of principal paid last);
(iii) during the continuance of a Trigger Period, to Lenderthe Operating Account, any Xxxx Excess Cash Flow required an amount equal to the Budgeted Operating Expenses for the month in which such Payment Date occurs, provided that the amounts disbursed to such account pursuant to this clause (iii) shall be used by Borrower solely to prepay pay Budgeted Operating Expenses for such month (Borrower agreeing that, in the Loan pursuant event that such Budgeted Operating Expenses exceed the actual operating expenses for such month, such excess amounts shall be remitted by Borrower to Section 2.1(c)(ii)the Cash Management Account prior to the next succeeding Payment Date) and provided further that no amounts will be disbursed to Borrower in respect of (A) the fees of the Approved Property Manager to the extent such fees exceed the Maximum Management Fee, and (B) the fees of the Approved Hotel Operator to the extent such fees exceed the base management fee set forth in the Approved Hotel Operating Agreement;
(iv) for so long as to the Junior Mezzanine Loan remains outstandingFF&E Expenditure Reserve Account, the amount, if any, required to be deposited therein pursuant to Section 3.8;
(v) to the Capital Expenditure (ACL Music Venue Property) Reserve Account, the amount, if any, required to be deposited therein pursuant to Section 3.9;
(vi) to the Capital Expenditure (Commercial Property) Reserve Account, the amount, if any, required to be deposited therein pursuant to Section 3.7;
(vii) to the ACL Music Venue Reserve Account, the amount, if any, required to be deposited therein pursuant to Section 3.6;
(viii) to the TI/LC Reserve Account, the amount, if any, required to be deposited therein pursuant to Section 3.5;
(ix) during the continuance of a Trigger Period or Event of Default, all remaining amounts to the Junior Mezzanine Excess Cash Management Flow Reserve Account; and
(vx) if the Junior Mezzanine Loan no Trigger Period or Event of Default is no longer outstandingcontinuing, all remaining amounts to such account as shall be designated by Borrower from time to time, unless a Mortgage Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management Operating Account.
(c) If on any Payment Date the amount in the Cash Management Account shall be is insufficient to make all of the transfer transfers described in Section 3.2(b)(iabove (other than remittance of excess cash to the Excess Cash Flow Reserve Account or the Operating Account), then Borrower shall deposit into remit to the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail fails to make remit such depositamount to the Cash Management Account, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c3.10(c).
(d) Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectively.
Appears in 1 contract
Distributions from Cash Management Account. (a) The Cash Management Agreement shall provide that the Cash Management Bank shall remit to the Junior Mezzanine Cash Management Accountan account specified by Borrower, at the end of each Business Day (or, at Borrower’s election, on a less frequent basis)Day, the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), on the next Payment Date pursuant to Section 3.2(b) (the “Minimum Peg Balance”); provided, however, that Lender shall Servicer may terminate such remittances during the continuance of an Event of Default upon notice to the Cash Management Bank. Lender Servicer may notify the Cash Management Bank at any time of any change in the Minimum Peg Balance. Lender shall deliver a copy of any notice of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan Documents.
(b) On each Payment Date, provided no Event of Default has occurred and is continuing, Lender the Servicer shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) to the Tax and Insurance Reserve Account, the amounts then required to be deposited therein pursuant to Section 3.4;
(ii) to Lender, the amount of all scheduled or delinquent interest on the Loan and all other amounts then due and payable under the Loan Documents;
Documents (ii) to Lender, with any Restricted Cash required to be used to prepay the Loan pursuant to Section 2.1(c)(iamounts in respect of principal paid last);
(iii) to Lenderthe Replacement Reserve Account, any Xxxx Excess Cash Flow the amounts required to be used to prepay the Loan deposited therein pursuant to Section 2.1(c)(ii)3.6;
(iv) for so long as the Junior Mezzanine Loan remains outstanding, all remaining amounts to the Junior Mezzanine Cash Management TI/LC Reserve Account, any amount required to be deposited therein pursuant to Section 3.5; and
(v) if the Junior Mezzanine Loan is no longer outstanding, all remaining amounts to such account accounts as shall be designated by Borrower from time to time, unless a Mortgage Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management Accountmay direct.
(c) If by 11:00 a.m., New York City time, on any Payment Date during the amount in the Cash Management Account shall be sufficient to make all of the payments and deposits described in Section 3.2(b)(i) through (iv), Borrower shall be deemed to have made such payments and deposits on such Payment Date unless Lender is legally constrained from transferring such amount in accordance with such Section by reason of any insolvency related to Borrower or any other event.
(d) If on any Payment Date the amount in the Cash Management Account shall be insufficient to make all of the transfer transfers described in Section 3.2(b)(i) through (iv), Borrower shall deposit into the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail to make such deposit, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(cCash Management Account toward the components of the Indebtedness (e.g., interest, principal and other amounts payable hereunder).
(d) Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or and the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, Notes in such sequence as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and elect in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectivelysole discretion.
Appears in 1 contract
Samples: Loan Agreement (KBS Real Estate Investment Trust II, Inc.)
Distributions from Cash Management Account. (a) The Cash Management Agreement shall provide that, as long as no Low DSCR Period is continuing, the Cash Management Bank shall remit to an account or accounts specified by Obligors, at the end of each Business Day during the term of the Loan all amounts then contained in the Cash Management Account. Additionally, the Cash Management Agreement shall provide that the Cash Management Bank shall remit to an account specified by the Junior Mezzanine Cash Management AccountObligors, at the end of each Business Day (or, at Borrower’s election, on falling during the continuance of a less frequent basis)Low DSCR Period, the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), on the next Payment Date pursuant to Section 3.2(b) (the “Minimum Balance”); provided, however, that Lender shall Servicer may terminate such remittances during the continuance of an Event of Default upon written notice to the Cash Management Bank. Lender may Servicer shall notify the Cash Management Bank at any time and the Obligors of any change in the Minimum Balance. Lender shall deliver a copy of Balance at any notice time during the continuance of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan DocumentsLow DSCR Period.
(b) On each Payment DateDate falling during the continuance of a Low DSCR Period, provided no Event of Default has occurred and is continuing, Lender the Servicer shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) to the Tax, Insurance and Ground Rents Escrow Account, the amounts then required to be deposited therein pursuant to Section 3.3;
(ii) to Lender, the amount of all scheduled or delinquent interest on the Loan Loans and all other amounts then due and payable under the Loan Documents;
Documents (ii) to Lender, with any Restricted Cash required to be used to prepay the Loan pursuant to Section 2.1(c)(iamounts in respect of principal paid last);
(iii) to Lenderthe TI/LC Reserve Account, any Xxxx Excess Cash Flow amount required to be used to prepay the Loan deposited therein pursuant to Section 2.1(c)(ii)3.4;
(iv) for so long as the Junior Mezzanine Loan remains outstanding, all remaining amounts to the Junior Mezzanine Cash Management Capital Expenditure Reserve Account, the amounts required to be deposited therein pursuant to Section 3.5; and
(v) if the Junior Mezzanine Loan is no longer outstanding, all remaining amounts amounts, to such account accounts as shall be designated by Borrower from time to time, unless a Mortgage Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management AccountObligors may direct.
(c) If on any Payment Date during the continuance of a Low DSCR Period the amount in the Cash Management Account shall be insufficient to make all of the transfer transfers described in Section 3.2(b)(i) through (iv), Borrower the Borrowers shall deposit into the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail to make such deposit, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c).
(d) Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectively.
Appears in 1 contract
Distributions from Cash Management Account. (a) The Cash Management Agreement shall provide that the Cash Management Bank shall remit On each Payment Date during a Trigger Period, provided no Event of Default is continuing (and, if and to the Junior Mezzanine Cash Management Accountextent Lender so elects in its sole discretion, at the end of each Business Day (or, at Borrower’s election, on a less frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), on the next Payment Date pursuant to Section 3.2(b) (the “Minimum Balance”); provided, however, that Lender shall terminate such remittances during the continuance of an Event of Default upon notice to the Cash Management Bank. Lender may notify the Cash Management Bank at any time of any change in the Minimum Balance. Lender shall deliver a copy of any notice of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of until the Loan Documents.
(b) On each Payment Date, provided no Event of Default has occurred and is continuingbeen accelerated), Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
: (i) to the Basic Carrying Costs Escrow Account, the amounts then required to be deposited therein pursuant to Section 3.4; (ii) to Lender, the amount of all scheduled or delinquent interest and principal on the Loan and all other amounts then due and payable under the Loan Documents;
Documents (ii) to Lender, with any Restricted Cash required to be used to prepay the Loan pursuant to Section 2.1(c)(iamounts in respect of principal paid last);
; (iii) to Lenderthe Operating Account, any Xxxx Excess an amount equal to the Budgeted Operating Expenses for the month in which such Payment Date occurs, plus the minimum amount necessary to be distributed in order to comply with REIT regulations, provided, that (x) in no event shall such disbursements for the purpose of complying with REIT regulations exceed $125,000 per annum, (y) the amounts disbursed to the Operating Account in respect of Budgeted Operating Expenses pursuant to this clause (iii) shall be used by Borrower solely to pay Budgeted Operating Expenses for such month (Borrower agreeing that, in the event that such Budgeted Operating Expenses exceed the actual operating expenses for such month, such excess amounts shall be remitted by Borrower to the Cash Flow Management Account prior to the next succeeding Payment Date) and (z) no amounts will be disbursed to Borrower in respect of the fees of the Approved Property Manager to the extent such fees exceed the Maximum Management Fee; (iv) to the Capital Expenditure Reserve Account, the amount, if any, required to be used to prepay the Loan deposited therein pursuant to Section 2.1(c)(ii);
3.6; (ivv) for so long as to the Junior Mezzanine Loan remains outstandingTI/LC Reserve Account, the amount, if any, required to be deposited therein pursuant to Section 3.5; and (vi) all remaining amounts to the Junior Mezzanine Excess Cash Management Flow Reserve Account; and. 50 [AM_ACTIVE 400655008_12]
(v) if the Junior Mezzanine Loan is no longer outstanding, all remaining amounts to such account as shall be designated by Borrower from time to time, unless a Mortgage Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management Account.
(cb) If on any Payment Date during a Trigger Period the amount in the Cash Management Account shall be is insufficient to make all of the transfer transfers described in Section 3.2(b)(iabove (other than remittance of excess cash to the Excess Cash Flow Reserve Account), then Borrower shall deposit into remit to the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail fails to make remit such depositamount to the Cash Management Account, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c3.11(c).
. If on any Payment Date, the amount in the Cash Management Account is sufficient to make the transfers described in Section 3.2(b)(i) through (dv) Notwithstanding anything to the contrary above (without taking into account any amounts contained in this Agreement, subaccounts of the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine LenderCash Management Account), such clause or provision amount shall be deemed paid to mean, and shall be construed as meaning, that Lender shall pay whether or not Lender instructs the Cash Management Bank to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any make such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectivelytransfers.
Appears in 1 contract
Samples: Loan Agreement (Hartman Short Term Income Properties XX, Inc.)
Distributions from Cash Management Account. (a) The Cash Management Agreement shall provide that the Cash Management Bank shall remit to the Junior Mezzanine Cash Management Accountan account specified by Borrower, at the end of each Business Day (or, at Borrower’s election, on a less frequent basis)Day, the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), on Peg Balance (and Borrower shall receive the next Payment Date pursuant to Section 3.2(b) (same free of the “Minimum Balance”Lien of the Loan Documents); provided, however, that Lender shall Servicer may terminate such remittances during the continuance of an Event of Default upon notice to the Cash Management Bank. Lender may Servicer will reasonably promptly notify the Cash Management Bank at any time of any change in the Minimum Peg Balance. Lender shall deliver a copy of any notice of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan Documents.
(b) On each Payment DateDate falling during the continuance of an Escrow Period, provided no Event of Default has occurred and is continuing, Lender the Servicer shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) to the Tax, Insurance and Ground Rents Escrow Account, the amounts then required to be deposited therein pursuant to Section 3.4;
(ii) to Lender, the amount of all scheduled or delinquent interest and principal on the Loan and all other amounts then due and payable under the Loan Documents;
Documents (ii) to Lender, with any Restricted Cash required to be used to prepay the Loan pursuant to Section 2.1(c)(iamounts in respect of principal paid last);
(iii) to Lenderthe Replacement Reserve Account, any Xxxx Excess Cash Flow the amounts required to be used to prepay the Loan deposited therein pursuant to Section 2.1(c)(ii)3.6;
(iv) to the TI/LC Reserve Account, any amount required to be deposited therein pursuant to Section 3.5;
(v) during the continuance of a Cash Trap Period, to Borrower, an amount equal to the Budgeted Operating Expenditures for so long the month in which such Payment Date occurs (ignoring for such purposes the preceding Business Day convention), provided that the amounts disbursed to Borrower pursuant to this clause (v) shall be used by Borrower solely to pay operating expenses for such month (or, in the event such Budgeted Operating Expenditures exceed the actual operating expenses for such month, such excess amounts will be applied by Borrower to the immediately succeeding month's operating expenses), and provided further that no amounts will be disbursed to Borrower in respect of the fees of the Approved Property Manager to the extent such fees exceed 1.5% of gross revenues; as well as any additional amount reasonably requested by Borrower in writing in respect of emergency and non-discretionary operating expenses (other than management fees), which written request shall be accompanied by a reasonably detailed description of the emergency or non-discretionary operating expenses, as the Junior Mezzanine Loan remains outstandingcase may be (any such request in respect of non-discretionary operating expenses shall be delivered at least 10 Business Days prior to such Payment Date, and Lender shall reasonably cooperate with any request to remit funds from the Cash Management Account on a date that is not a Payment Date if required due to an emergency);
(vi) during the continuance of a Cash Trap Period, any additional amount required to cause the amount in the Replacement Reserve Account to equal the Budgeted Capital Expenditures for the month in which such Payment Date occurs, as well as any additional amount reasonably requested by Borrower in writing in respect of emergency Capital Expenditures, which written request shall be accompanied by a reasonably detailed description of the emergency;
(vii) during the continuance of a Cash Trap Period, all remaining amounts to the Junior Mezzanine Cash Management Low DSCR Reserve Account (other than amounts, if any, that remain solely as a result of Borrower's delivery of a Qualified Letter of Credit with respect to the Tax, Insurance and Ground Rents Escrow Account, the Replacement Reserve Account and/or the TI/LC Reserve Account); and
(vviii) if the Junior Mezzanine Loan is no longer outstanding, all remaining amounts amounts, if any, to such account accounts as shall be designated by Borrower from time to timemay direct, unless a Mortgage free of the Lien of the Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management AccountDocuments.
(c) If by 1:00 p.m., New York City time, on any Payment Date during the continuance of an Escrow Period the amount in the Cash Management Account shall be sufficient to make all of the payments and deposits described in Section 3.2(b)(i) through (iv), Borrower shall be deemed to have made such payments and deposits on such Payment Date unless Lender is legally constrained from transferring such amount in accordance with such Section by reason of any insolvency related to Borrower or any other event.
(d) If on any Payment Date during the continuance of an Escrow Period the amount in the Cash Management Account shall be insufficient to make all of the transfer transfers described in Section 3.2(b)(i) through (iv), Borrower shall deposit into the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail to make such deposit, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(cCash Management Account toward the components of the Indebtedness (e.g., interest, principal and other amounts payable hereunder).
(d) Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or and the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, Notes in such sequence as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and elect in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectivelysole discretion.
Appears in 1 contract
Distributions from Cash Management Account. (a) The Cash Management Agreement shall provide that the Cash Management Bank shall remit to the Junior Mezzanine Cash Management Qualified Operating Expense Account, at the end of each Business Day (or, at Borrower’s 's election, on a less frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), Lender on the next Payment Date pursuant to Section 3.2(b) hereto (the “"Minimum Balance”"); provided, however, that Lender shall terminate such remittances during the continuance of an Event of Default or Trigger Period upon notice to the Cash Management Bank. Lender may notify the Cash Management Bank at any time of any change in the Minimum Balance. Lender shall deliver , with a copy of any such notice of a change in the Minimum Balance provided to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan Documents.
(b) On each Payment Date, provided no Event of Default has occurred and is continuing, Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) to the Basic Carrying Costs Escrow Account, the amounts then required to be deposited therein pursuant to Section 3.4;
(ii) to Lender, the amount of all scheduled or delinquent interest and principal on the Loan and all other amounts then due and payable under the Loan Documents;
Documents (ii) to Lender, with any Restricted Cash required to be used to prepay the Loan pursuant to Section 2.1(c)(iamounts in respect of principal paid last);
(iii) during the continuance of a Trigger Period, to Lenderthe Qualified Operating Expense Account, any Xxxx Excess Cash Flow required an amount equal to the Budgeted Operating Expenses for the month in which such Payment Date occurs, provided that the amounts disbursed to Borrower pursuant to this clause (iii) shall be used by Borrower solely to prepay pay Budgeted Operating Expenses for such month reduced by the Loan pursuant amount, if any, by which Budgeted Operating Expenses disbursed in the previous month exceeded actual operating expenses for such month and provided further that no amounts will be disbursed to Section 2.1(c)(ii)Borrower in respect of the fees of the Approved Property Manager to the extent such fees exceed three percent (3.0%) of Operating Income;
(iv) for so long as to the Junior Mezzanine Loan remains outstandingCapital Expenditure Reserve Account, the amounts required to be deposited therein pursuant to Section 3.6;
(v) to the TI/LC Reserve Account, any amount required to be deposited therein pursuant to Section 3.5;
(vi) if required by Section 3.9 below, during the continuance of a Trigger Period caused solely by a Belks Trigger Event, an amount equal to $62,500.00 to the Belks Reserve Account until the balance contained therein is equal to $750,000.00;
(vii) during the continuance of a Trigger Period caused by any event other than a Belks Trigger Event, all remaining amounts to the Junior Mezzanine Excess Cash Management Flow Reserve Account; and
(vviii) if the Junior Mezzanine Loan no Trigger Period is no longer outstandingcontinuing, all remaining amounts amounts, if any, to such account accounts as shall be designated by Borrower from time to time, unless a Mortgage Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management Accountmay direct.
(c) If on any Payment Date the amount in the Cash Management Account shall be insufficient to make all of the transfer transfers described in Section 3.2(b)(i) through (vi), Borrower shall deposit into the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail to make such deposit, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c3.11(c).
(d) Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectively.
Appears in 1 contract
Distributions from Cash Management Account. (a) The Cash Management Agreement Lender shall provide that transfer from the Cash Management Bank shall remit Account to the Junior Mezzanine Cash Management Operating Account, at the end of each Business Day (or, at Borrower’s election, on a less frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), Lender on the next Payment Date pursuant to Section 3.2(b) hereto (the “Minimum Balance”); provided, however, that Lender shall terminate such remittances during the continuance of an Event of Default upon notice to the Cash Management Bank. Lender may notify the Cash Management Bank at any time of any change in the Minimum Balance. Lender shall deliver a copy of any notice of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan DocumentsTrigger Period.
(b) On each Payment Date, provided no Event of Default is continuing (and, if and to the extent Lender so elects in its sole discretion, during the continuance of an Event of Default until the Loan has occurred and is continuingbeen accelerated), Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) to the Basic Carrying Costs Escrow Account, the amounts then required to be deposited therein pursuant to Section 3.4;
(ii) to Lender, the amount of all scheduled or delinquent interest and principal on the Loan and all other amounts then due and payable under the Loan Documents;
Documents (ii) to Lender, with any Restricted Cash required to be used to prepay the Loan pursuant to Section 2.1(c)(iamounts in respect of principal paid last);
(iii) during the continuance of a Trigger Period, to Lenderthe Operating Account, any Xxxx Excess Cash Flow required an amount equal to the Budgeted Operating Expenses for the month in which such Payment Date occurs, provided that the amounts disbursed to such account pursuant to this clause (iii) shall be used by Borrower solely to prepay pay Budgeted Operating Expenses for such month (Borrower agreeing that, in the Loan pursuant event that such Budgeted Operating Expenses exceed the actual operating expenses for such month, such excess amounts shall be remitted by Borrower to Section 2.1(c)(ii)the Cash Management Account prior to the next succeeding Payment Date) and provided further that no amounts will be disbursed to Borrower in respect of the fees of the Approved Property Manager to the extent such fees exceed the Maximum Management Fee;
(iv) for so long as to the Junior Mezzanine Loan remains outstandingCapital Expenditure Reserve Account, the amount, if any, required to be deposited therein pursuant to Section 3.6;
(v) to the Lease Termination Payment Reserve Account, the amount, if any, required to be deposited therein pursuant to Section 3.5;
(vi) during the continuance of a Trigger Period or Event of Default, all remaining amounts to the Junior Mezzanine Excess Cash Management Flow Reserve Account; and
(vvii) if the Junior Mezzanine Loan no Trigger Period or Event of Default is no longer outstandingcontinuing, all remaining amounts to such account as shall be designated by Borrower from time to time, unless a Mortgage Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management Operating Account.
(c) If on any Payment Date the amount in the Cash Management Account shall be is insufficient to make all of the transfer transfers described in Section 3.2(b)(iabove (other than remittance of excess cash to the Excess Cash Flow Reserve Account or the Operating Account), then Borrower shall deposit into remit to the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail fails to make remit such depositamount to the Cash Management Account, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c3.10(c).
(d) Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectively.
Appears in 1 contract
Samples: Loan Agreement (Carter Validus Mission Critical REIT, Inc.)
Distributions from Cash Management Account. (a) The Cash Management Agreement Lender shall provide that transfer from the Cash Management Bank shall remit Account to the Junior Mezzanine Cash Management Distribution Account, at the end of each Business Day (or, at Borrower’s election, on a less frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), Lender on the next Payment Date pursuant to Section 3.2(b) hereto (the “Minimum Balance”); provided, however, that Lender shall terminate such remittances during the continuance of an Event of Default upon notice to the Cash Management Bank. Lender may notify the Cash Management Bank at any time of any change in the Minimum Balance. Lender shall deliver a copy of any notice of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan DocumentsTrigger Period.
(b) On each Payment Date, provided no Event of Default is continuing (and, if and to the extent Lender so elects in its sole discretion, during the continuance of an Event of Default until the Loan has occurred and is continuingbeen accelerated), Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) to the Tax and Insurance Escrow Account, the amounts then required to be deposited therein pursuant to Section 3.4;
(ii) to Lender, the amount of all scheduled or delinquent interest and principal on the Loan and all other amounts then due and payable under the Loan Documents;
Documents (ii) to Lender, with any Restricted Cash required to be used to prepay the Loan pursuant to Section 2.1(c)(iamounts in respect of principal paid last);
(iii) if a an FF&E Reserve Period shall be in effect, to Lenderthe FF&E Reserve Account, any Xxxx Excess Cash Flow the amount required to be used to prepay the Loan deposited therein pursuant to Section 2.1(c)(ii)3.5;
(iv) for so long as during the Junior Mezzanine Loan remains outstandingcontinuance of a Capital Plan Trigger Period, all remaining amounts to the Junior Mezzanine Capital Plan Reserve Account, until the amount contained therein equals the Capital Plan Reserve Amount;
(v) during the continuance of a Trigger Period or Event of Default, all remaining amounts to the Excess Cash Management Flow Reserve Account; and
(vvi) if the Junior Mezzanine Loan no Trigger Period or Event of Default is no longer outstandingcontinuing, all remaining amounts to such account as shall be designated by Borrower from time to time, unless a Mortgage Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management Distribution Account.
(c) If on any Payment Date the amount in the Cash Management Account shall be is insufficient to make all of the transfer transfers described in Section 3.2(b)(iabove (other than remittance of excess cash to the Excess Cash Flow Reserve Account or the Distribution Account), then Borrower shall deposit into remit to the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail fails to make remit such depositamount to the Cash Management Account, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c3.9(c).
(d) Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectively.
Appears in 1 contract
Distributions from Cash Management Account. (a) The Cash Management Agreement Lender shall provide that transfer from the Cash Management Bank shall remit Account to the Junior Mezzanine Cash Management Distribution Account, at the end of each Business Day (or, at Borrower’s election, on a less frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), Lender on the next Payment Date pursuant to Section 3.2(b) hereto (the “Minimum Balance”); provided, however, that Lender shall terminate such remittances during the continuance of an Event of Default upon notice to the Cash Management Bank. Lender may notify the Cash Management Bank at any time of any change in the Minimum Balance. Lender shall deliver a copy of any notice of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan DocumentsTrigger Period.
(b) On each Payment Date, provided no Event of Default is continuing (and, if and to the extent Lender so elects in its sole discretion, during the continuance of an Event of Default until the Loan has occurred and is continuingbeen accelerated), Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) if a Manager Tax Reserve Failure shall have occurred, to the Tax and Insurance Escrow Account, the amounts then required to be deposited therein pursuant to Section 3.4;
(ii) to Lender, the amount of all scheduled or delinquent interest and principal on the Loan and all other amounts then due and payable under the Loan Documents;
Documents (ii) to Lender, with any Restricted Cash required to be used to prepay the Loan pursuant to Section 2.1(c)(iamounts in respect of principal paid last);
(iii) if a Manager FF&E Reserve Failure shall have occurred, to Lenderthe FF&E Reserve Account, any Xxxx Excess Cash Flow the amount required to be used to prepay the Loan deposited therein pursuant to Section 2.1(c)(ii)3.5;
(iv) for so long as if a Hyatt Capital Plan Failure shall have occurred, to the Junior Mezzanine Loan remains outstandingHyatt Capital Plan Reserve Account, the amount required to be deposited therein pursuant to Section 3.9;
(v) during the continuance of a Trigger Period or Event of Default, all remaining amounts to the Junior Mezzanine Excess Cash Management Flow Reserve Account; and
(vvi) if the Junior Mezzanine Loan no Trigger Period or Event of Default is no longer outstandingcontinuing, all remaining amounts to such account as shall be designated by Borrower from time to time, unless a Mortgage Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management Distribution Account.
(c) If on any Payment Date the amount in the Cash Management Account shall be is insufficient to make all of the transfer transfers described in Section 3.2(b)(iabove (other than remittance of excess cash to the Excess Cash Flow Reserve Account or the Distribution Account), then Borrower shall deposit into remit to the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail fails to make remit such depositamount to the Cash Management Account, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c3.11(c).
(d) Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectively.
Appears in 1 contract
Distributions from Cash Management Account. (a) The Cash Management Agreement Lender shall provide that transfer from the Cash Management Bank shall remit Account to the Junior Mezzanine Cash Management Operating Account, at the end of each Business Day (or, at Borrower’s election, on a less frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), Lender on the next Payment Date pursuant to Section 3.2(b) (the “Minimum Balance”)hereto; provided, however, that Lender shall terminate such remittances during the continuance of an Event of Default upon notice to the Cash Management Bankor Trigger Period. Lender may notify the Cash Management Bank at any time of any change in the Minimum Balance. Lender shall deliver a copy of any notice of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan Documents.
(b) On each Payment Date, provided no Event of Default is continuing (and, if and to the extent Lender so elects in its sole discretion, during the continuance of an Event of Default until the Loan has occurred and is continuingbeen accelerated), Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
: (i) to the Basic Carrying Costs Escrow Account, the amounts then required to be deposited therein pursuant to Section 3.4; (ii) to Lender, the amount of all scheduled or delinquent interest and principal on the Loan and all other amounts then due and payable under the Loan Documents;
Documents (ii) to Lender, with any Restricted Cash required to be used to prepay the Loan pursuant to Section 2.1(c)(iamounts in respect of principal paid last);
; (iii) to Lenderduring the continuance of a Trigger Period, any Xxxx Excess Cash Flow required to be used to prepay the Loan pursuant to Section 2.1(c)(ii);
(iv) for so long as the Junior Mezzanine Loan remains outstanding, all remaining amounts to the Junior Mezzanine Cash Management Operating Account; and
(v) if , an amount equal to the Junior Mezzanine Loan is no longer outstandingBudgeted Operating Expenses for the month following the month in which such Payment Date occurs, all remaining provided that the amounts disbursed to such account as pursuant to this clause (iii) shall be designated used by Borrower from time solely to time, unless a Mortgage Loan Event of Default shall be continuingpay Budgeted Operating Expenses for such month (Borrower agreeing that, in which casethe event that such Budgeted Operating Expenses exceed the actual operating expenses for such month, all remaining such excess amounts shall be remitted by Borrower to the Mortgage Loan Cash Management Account.
(c) If on any Payment Date the amount in the Cash Management Account shall be insufficient to make the transfer described in Section 3.2(b)(i), Borrower shall deposit into the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail to make such deposit, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c).
(d) Notwithstanding anything prior to the contrary contained next succeeding Payment Date) and provided further that no amounts will be disbursed to Borrower in this Agreement, respect of the Loan Documents, and/or fees of the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents Approved Property Manager to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to extent such fees exceed the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectively.Maximum Management Fee; 45
Appears in 1 contract
Samples: Loan Agreement (Parkway, Inc.)
Distributions from Cash Management Account. (a) The Cash Management Agreement Lender shall provide that transfer from the Cash Management Bank shall remit Account to the Junior Mezzanine Cash Management AccountBorrower, at the end of each Business Day (or, at Borrower’s election, on a less frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), Lender and Mezzanine Lender on the next Payment Date pursuant to Section 3.2(b) (the “Minimum Balance”)hereto; provided, however, that that, except as expressly set forth herein, including, without limitation, pursuant to Section 3.2(b)(iv) and Section 3.2(b)(v) below, Lender shall terminate suspend such remittances during the continuance of an Event of Default upon notice to the Cash Management Bank. Lender may notify the Cash Management Bank at any time of any change in the Minimum Balance. Lender shall deliver a copy of any notice of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan DocumentsTrigger Period.
(b) On each Payment Date, provided no Event of Default is continuing (and, if and to the extent Lender so elects in its sole discretion, during the continuance of an Event of Default until the Loan has occurred and is continuingbeen accelerated), Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) to the Basic Carrying Costs Escrow Account, the amounts then required to be deposited therein pursuant to Section 3.4;
(ii) to Lender, the amount of all scheduled or delinquent interest and principal on the Loan and (in the order as provided under Section 1.2(a)) and, then, all other amounts then due and payable under the Loan Documents;
Documents (ii) to Lender, with any Restricted Cash required to be used to prepay the Loan pursuant to Section 2.1(c)(iamounts in respect of principal paid last);
(iii) during the continuance of a Trigger Period, to Lenderthe Operating Account, any Xxxx Excess Cash Flow required an amount equal to the Budgeted Operating Expenses for the month in which such Payment Date occurs, provided that the amounts disbursed to such account pursuant to this clause (iii) shall be used by Borrower solely to prepay pay Budgeted Operating Expenses for such month (Borrower agreeing that, in the Loan pursuant event that such Budgeted Operating Expenses exceed the actual operating expenses for such month, such excess amounts shall be remitted by Borrower to Section 2.1(c)(iithe Cash Management Account prior to the next succeeding Payment Date);
(iv) for so long as until Lender shall have received notice from Mezzanine Lender that the Junior Mezzanine Loan remains outstandinghas been repaid in full, to Mezzanine Lender, all scheduled interest then due and payable or past due and payable to Mezzanine Lender under the Mezzanine Loan Agreement, as specified by Mezzanine Lender pursuant to Mezzanine Lender’s written instructions to Lender;
(v) during the continuance of (x) a Partial Trigger Period (provided that no Full Trigger Period is occurring), fifty percent (50%) of all remaining amounts to the Excess Cash Flow Reserve Account and (y) a Full Trigger Period or Event of Default, all remaining amounts to the Junior Mezzanine Excess Cash Management Flow Reserve Account; and
(vvi) if the Junior Mezzanine Loan no Full Trigger Period or Event of Default is no longer outstandingcontinuing, all remaining amounts to such account as shall be designated by or upon the direction of Borrower from time to time, unless a Mortgage Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted pursuant to the Mortgage Loan Cash Management AccountIrrevocable Redirection Letter.
(c) If on any Payment Date the amount in the Cash Management Account shall be is insufficient to make all of the transfer transfers described in Section 3.2(b)(iabove (other than the payment to Mezzanine Lender and the remittance of excess cash to the Excess Cash Flow Reserve Account or the Operating Account), then Borrower shall deposit into remit to the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail fails to make remit such depositamount to the Cash Management Account, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c3.10(c).
(d) Notwithstanding anything All transfers of Borrower’s funds from the Cash Management Account or other sources to or for the contrary contained in benefit of Mezzanine Lender or Mezzanine Borrower pursuant to this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to Cash Management Agreement or any clause or provision contained in this Agreement, of the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made intended by Borrower and the Mezzanine Borrower to Junior constitute, and shall constitute, distributions from Borrower to such Mezzanine Lender or applied to Borrower in accordance with the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision Delaware Limited Liability Company Act shall be deemed to meanrecorded on the books and records of Borrower and Mezzanine Borrower as distributions or contributions, as applicable, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and conducted in accordance with and compliance with the organizational documents provisions of Borrower Section 4.17 and applicable lawthe definition of “Single-Purpose Entity” hereof, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar separateness covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectivelyor any other similar separateness covenants contained in the Mezzanine Loan Documents.
(e) Lender may conclusively rely upon any notice received from the Mezzanine Lender with respect to the amount then payable under the Mezzanine Loan Agreement and with respect to the occurrence, continuance or termination of any Mezzanine Loan Event of Default. Lender shall be under no duty to inquire into or investigate the validity, accuracy or content of any such notice.
Appears in 1 contract
Samples: Loan Agreement (Toys R Us Inc)
Distributions from Cash Management Account. (a) The Cash Management Agreement shall provide that the Cash Management Bank shall remit to the Junior Mezzanine Cash Management Qualified Operating Expense Account, at the end of each Business Day (or, at Borrower’s election, on a less frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), Lender on the next Payment Date pursuant to Section 3.2(b) hereto (the “Minimum Balance”); provided, however, that Lender shall terminate such remittances during the continuance of an Event of Default or Trigger Period upon notice to the Cash Management Bank. Lender may notify the Cash Management Bank at any time of any change in the Minimum Balance. Lender shall deliver a copy of any notice of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan Documents.
(b) On each Payment Date, provided no Event of Default has occurred and is continuing, Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) to the Basic Carrying Costs Escrow Account, the amounts then required to be deposited therein pursuant to Section 3.4;
(ii) to Lender, the amount of all scheduled or delinquent interest and principal on the Loan and all other amounts then due and payable under the Loan Documents;
Documents (ii) to Lender, with any Restricted Cash required to be used to prepay the Loan pursuant to Section 2.1(c)(iamounts in respect of principal paid last);
(iii) during the continuance of a Trigger Period, to Lenderthe Qualified Operating Expense Account, any Xxxx Excess Cash Flow required an amount equal to the Budgeted Operating Expenses for the month in which such Payment Date occurs, to the extent such Budgeted Operating Expenses have not previously been paid by Approved Property Manager in accordance with the Approved Management Agreement, as certified by Borrower in an Officer’s Certificate delivered to Lender at least five Business Days prior to such payment date, provided that the amounts disbursed to such account pursuant to this clause (iii) shall be used solely to prepay pay Budgeted Operating Expenses for such month (Borrower agreeing that, in the Loan pursuant event that such Budgeted Operating Expenses exceed the actual operating expenses for such month, such excess amounts shall be remitted to Section 2.1(c)(iithe Cash Management Account prior to the next succeeding Payment Date);
(iv) for so long as to the Junior Mezzanine Loan remains outstandingFF&E Reserve Account, the amounts, if any, required to be deposited therein pursuant to Section 3.6;
(v) during the continuance of a Trigger Period, all remaining amounts to the Junior Mezzanine Excess Cash Management Flow Reserve Account; and
(vvi) if the Junior Mezzanine Loan no Trigger Period is no longer outstandingcontinuing, all remaining amounts to such account as shall be designated by Borrower from time to time, unless a Mortgage Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management Qualified Operating Expense Account.
(c) If on any Payment Date the amount in the Cash Management Account shall be insufficient to make all of the transfer transfers described in Section 3.2(b)(i) through (iv), Borrower shall deposit into the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail to make such deposit, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c3.10(c).
(d) Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectively.
Appears in 1 contract
Distributions from Cash Management Account. (a) The Cash Management Agreement So long as there is no continuing Event of Default or Trigger Period, Lender shall provide that transfer from the Cash Management Bank shall remit Account to the Junior Mezzanine Cash Management Operating Account, at the end of each Business Day month (or, at Borrower’s 's election, on a less or more frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), Lender on the next Payment Date pursuant to Section 3.2(b) (the “Minimum Balance”)hereto; provided, however, that Lender shall terminate such remittances during the continuance of an Event of Default upon notice to the Cash Management Bank. Lender may notify the Cash Management Bank at any time of any change in the Minimum Balance. Lender shall deliver a copy of any notice of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan DocumentsTrigger Period.
(b) On each Payment Date, provided no Event of Default is continuing (and, if and to the extent Lender so elects in its sole discretion, during the continuance of an Event of Default until the Loan has occurred and is continuingbeen accelerated), Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) to the Basic Carrying Costs Escrow Account, the amounts then required to be deposited therein pursuant to Section 3.4;
(ii) to Lender, the amount of all scheduled or delinquent interest and principal on the Loan and all other amounts then due and payable under the Loan Documents;
Documents (ii) to Lender, with any Restricted Cash required to be used to prepay the Loan pursuant to Section 2.1(c)(iamounts in respect of principal paid last);
(iii) during the continuance of a Trigger Period, to Lenderthe Operating Account, any Xxxx Excess Cash Flow required an amount equal to the Budgeted Operating Expenses for the month in which such Payment Date occurs, provided that the amounts disbursed to such account pursuant to this clause (iii) shall be used by Borrower solely to prepay pay Budgeted Operating Expenses for such month (Borrower agreeing that, in the Loan pursuant event that such Budgeted Operating Expenses exceed the actual operating expenses for such month, such excess amounts shall be remitted by Borrower to Section 2.1(c)(ii)the Cash Management Account prior to the next succeeding Payment Date) and provided further that no amounts will be disbursed to Borrower in respect of (A) the fees of the Approved Property Manager to the extent such fees exceed the Maximum Management Fee, and (B) the fees of the Approved Hotel Operator to the extent such fees exceed the base management fee set forth in the Approved Hotel Operating Agreement;
(iv) for so long as to the Junior Mezzanine Loan remains outstandingFF&E Expenditure Reserve Account, the amount, if any, required to be deposited therein pursuant to Section 3.8;
(v) to the Capital Expenditure (ACL Music Venue Property) Reserve Account, the amount, if any, required to be deposited therein pursuant to Section 3.9; 49125-481/Block 21 (TX)
(vi) to the Capital Expenditure (Commercial Property) Reserve Account, the amount, if any, required to be deposited therein pursuant to Section 3.7;
(vii) to the ACL Music Venue Reserve Account, the amount, if any, required to be deposited therein pursuant to Section 3.6;
(viii) to the TI/LC Reserve Account, the amount, if any, required to be deposited therein pursuant to Section 3.5;
(ix) during the continuance of a Trigger Period or Event of Default, all remaining amounts to the Junior Mezzanine Excess Cash Management Flow Reserve Account; and
(vx) if the Junior Mezzanine Loan no Trigger Period or Event of Default is no longer outstandingcontinuing, all remaining amounts to such account as shall be designated by Borrower from time to time, unless a Mortgage Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management Operating Account.
(c) If on any Payment Date the amount in the Cash Management Account shall be is insufficient to make all of the transfer transfers described in Section 3.2(b)(iabove (other than remittance of excess cash to the Excess Cash Flow Reserve Account or the Operating Account), then Borrower shall deposit into remit to the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail fails to make remit such depositamount to the Cash Management Account, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c3.10(c).
(d) Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectively.
Appears in 1 contract
Distributions from Cash Management Account. (a) The Cash Management Agreement shall provide that the Cash Management Bank shall remit to the Junior Mezzanine Cash Management Qualified Operating Expense Account, at the end of each Business Day (or, at Borrower’s election, on a less frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required (or estimated by Lender to be required) to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), Lender on the next Payment Date pursuant to Section 3.2(b) hereto (the “Minimum Balance”); provided, however, that Lender shall have the right to terminate such remittances during the continuance of an Event of Default or Trigger Period upon notice to the Cash Management Bank. Lender may notify the Cash Management Bank at any time of any change in the Minimum Balance. Lender Upon notice to Borrower following an Event of Default or Trigger Period, Borrower shall deliver a copy of any notice of a change in remit to the Minimum Balance Cash Management Account all sums previously remitted to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of Qualified Operating Expense Account during the Loan Documentsthen current Interest Accrual Period.
(b) On each Payment Date, provided no Event of Default has occurred and is continuing, Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) to the Basic Carrying Costs Escrow Account, the amounts then required to be deposited therein pursuant to Section 3.4;
(ii) to Lender, the amount of all scheduled or delinquent interest and principal on the Loan and all other amounts then due and payable under the Loan Documents;
Documents (ii) to Lender, with any Restricted Cash required to be used to prepay the Loan pursuant to Section 2.1(c)(iamounts in respect of principal paid last);
(iii) during the continuance of a Trigger Period, to Lenderthe Qualified Operating Expense Account, any Xxxx Excess Cash Flow required an amount equal to be used the Budgeted Operating Expenses for the month in which such Payment Date occurs, to prepay the Loan extent such Budgeted Operating Expenses have not previously been paid or retained by Approved Property Manager in accordance with the Approved Management Agreement as certified by Borrower in an Officer’s Certificate delivered to Lender at least five Business Days prior to such payment date, or otherwise disbursed to Borrower pursuant to Section 2.1(c)(ii3.2(a), provided that the amounts disbursed to such account pursuant to this clause (iii) shall be used solely to pay Budgeted Operating Expenses for such month (Borrower agreeing that, in the event that such Budgeted Operating Expenses exceed the actual operating expenses for such month, such excess amounts shall be remitted to the Cash Management Account prior to the next succeeding Payment Date);
(iv) for so long as to the Junior Mezzanine Loan remains outstandingFF&E Reserve Account, the amounts, if any, required to be deposited therein pursuant to Section 3.6;
(v) if no Trigger Period is continuing, on each Payment Date commencing in August of each year, and continuing until the balance in the Seasonality Reserve Account equals or exceeds the Seasonality Reserve Required Balance, all remaining amounts to the Junior Mezzanine Seasonality Reserve Account;
(vi) during the continuance of a Trigger Period, all remaining amounts to the Excess Cash Management Flow Reserve Account; and
(vvii) if the Junior Mezzanine Loan no Trigger Period is no longer outstandingcontinuing, all remaining amounts to such account as shall be designated by Borrower from time to time, unless a Mortgage Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management Qualified Operating Expense Account.
(c) If on any Payment Date the amount in the Cash Management Account shall be insufficient to make all of the transfer transfers described in Section 3.2(b)(i) through (iv), Borrower shall deposit into the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail to make such deposit, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c3.10(c).
(d) Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectively.
Appears in 1 contract
Distributions from Cash Management Account. (a) The Cash Management Agreement shall provide that from and after the termination of the Initial Cash Flow Reserve Period, the Cash Management Bank shall remit to the Junior Mezzanine Cash Management Accountan account specified by Borrower, at the end of each Business Day (or, at Borrower’s election, on a less frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), Lender and the Mezzanine Lenders on the next Payment Date pursuant to Section 3.2(b) this Agreement and the Mezzanine Loan Agreements (plus any additional amounts retained in such account by the Cash Management Bank in accordance with the second following proviso, the “Minimum Peg Balance”); provided, however, that Lender shall terminate such remittances during the continuance of an Event of Default, Mezzanine Loan Event of Default upon notice to or Trigger Period (and once again continue such remittances when no Event of Default, Mezzanine Event of Default or Trigger Period exists); and provided further, that the Cash Management BankBank may retain in the Cash Management Account a nominal amount of funds (not to exceed $5,000) for the purpose of covering miscellaneous fees and charges associated with the administration of the Cash Management Account to the extent provided in the Cash Management Agreement. Lender may notify the Cash Management Bank at any time of any change in the Minimum Peg Balance. Lender shall deliver a copy of any notice of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan Documents.
(b) On each Payment Date, provided no Event of Default has occurred and is continuing, Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) to the Tax, Ground Rents and Insurance Reserve Account, the amount then required to be deposited therein pursuant to Section 3.4;
(ii) to Lender, the amount of all scheduled or delinquent interest payments then due and payable or past due and payable on the Loan Loan, and all other amounts then due and payable under the Loan Documents;
(iiiii) to Lenderthe FF&E Reserve Account, any Restricted Cash the amount required to be used to prepay the Loan deposited therein pursuant to Section 2.1(c)(i);
(iii) to Lender, any Xxxx Excess Cash Flow required to be used to prepay the Loan pursuant to Section 2.1(c)(ii)3.6;
(iv) during the continuance of the Initial Cash Flow Reserve Period, a Mezzanine Loan Event of Default or a Trigger Period, or at the request of Borrower by written notice delivered no later than five Business Days prior to the relevant Payment Date, or otherwise at Lender’s sole discretion, to Borrower, an amount equal to the Budgeted Operating Expenses for the calendar month in which such Payment Date occurs, provided that the amounts disbursed to Borrower pursuant to this clause (iv) shall be used by Borrower and/or TRS Lessee solely to pay Budgeted Operating Expenses for such month (Borrower agreeing that, in the event that such Budgeted Operating Expenses exceed the actual operating expenses for such month, and so long as the Junior an Initial Cash Flow Reserve Period, Trigger Period, Mezzanine Loan remains outstandingEvent of Default or Event of Default is then continuing, such excess amounts shall be remitted by Borrower to the Cash Management Account prior to the next succeeding Payment Date);
(v) during the continuance of the Initial Cash Flow Reserve Period, a Mezzanine Loan Event of Default or a Trigger Period, or at the request of Borrower upon written notice delivered no later than five Business Days prior to the relevant Payment Date, to Borrower, an amount equal to the Extraordinary Expenses incurred and outstanding for the month in which such Payment Date occurs;
(vi) until Lender shall have received notice from Mezzanine A Lender that the Mezzanine A Loan has been repaid in full, to Mezzanine A Lender, all scheduled or delinquent interest payments then due and payable or past due and payable to Mezzanine A Lender under the Mezzanine A Loan Agreement, as specified by Mezzanine A Lender pursuant to Mezzanine A Lender’s written instructions to Lender;
(vii) until Lender shall have received notice from Mezzanine B Lender that the Mezzanine B Loan has been repaid in full and provided that no Mezzanine A Loan Event of Default is then continuing, to Mezzanine B Lender, all scheduled or delinquent interest payments then due and payable or past due and payable to Mezzanine B Lender under the Mezzanine B Loan Agreement, as specified by Mezzanine B Lender pursuant to Mezzanine B Lender’s written instructions to Lender;
(viii) until Lender shall have received notice from Mezzanine C Lender that the Mezzanine C Loan has been repaid in full and provided that no Mezzanine A Loan Event of Default or Mezzanine B Loan Event of Default is then continuing, to Mezzanine C Lender, all scheduled or delinquent interest payments then due and payable or past due and payable to Mezzanine C Lender under the Mezzanine C Loan Agreement, as specified by Mezzanine C Lender pursuant to Mezzanine C Lender’s written instructions to Lender;
(ix) until Lender shall have received notice from Mezzanine D Lender that the Mezzanine D Loan has been repaid in full and provided that no Mezzanine A Loan Event of Default, Mezzanine B Loan Event of Default or Mezzanine C Loan Event of Default is then continuing, to Mezzanine D Lender, all scheduled or delinquent interest payments then due and payable or past due and payable to Mezzanine D Lender under the Mezzanine D Loan Agreement, as specified by Mezzanine D Lender pursuant to Mezzanine D Lender’s written instructions to Lender;
(x) until Lender shall have received notice from Mezzanine E Lender that the Mezzanine E Loan has been repaid in full and provided that no Mezzanine A Loan Event of Default, Mezzanine B Loan Event of Default, Mezzanine C Loan Event of Default or Mezzanine D Loan Event of Default is then continuing, to Mezzanine E Lender, all scheduled or delinquent interest payments then due and payable or past due and payable to Mezzanine E Lender under the Mezzanine E Loan Agreement, as specified by Mezzanine E Lender pursuant to Mezzanine E Lender’s written instructions to Lender;
(xi) until Lender shall have received notice from Mezzanine F Lender that the Mezzanine F Loan has been repaid in full and provided that no Mezzanine A Loan Event of Default, Mezzanine B Loan Event of Default, Mezzanine C Loan Event of Default, Mezzanine D Loan Event of Default or Mezzanine E Loan Event of Default is then continuing, to Mezzanine F Lender, all scheduled or delinquent interest payments then due and payable or past due and payable to Mezzanine F Lender under the Mezzanine F Loan Agreement, as specified by Mezzanine F Lender pursuant to Mezzanine F Lender’s written instructions to Lender;
(xii) until Lender shall have received notice from Mezzanine G Lender that the Mezzanine G Loan has been repaid in full and provided that no Mezzanine A Loan Event of Default, Mezzanine B Loan Event of Default, Mezzanine C Loan Event of Default, Mezzanine D Loan Event of Default, Mezzanine E Loan Event of Default or Mezzanine F Loan Event of Default is then continuing, to Mezzanine G Lender, all scheduled or delinquent interest payments then due and payable or past due and payable to Mezzanine G Lender under the Mezzanine G Loan Agreement, as specified by Mezzanine G Lender pursuant to Mezzanine G Lender’s written instructions to Lender;
(xiii) during the continuance of the Initial Cash Flow Reserve Period or any Trigger Period, all remaining amounts to the Junior Mezzanine Cash Management Low Debt Yield Reserve Account; and;
(vxiv) if the Junior a Mezzanine A Loan Event of Default is no longer outstandingthen continuing, all remaining amounts to such account as shall be designated by Borrower from time Mezzanine A Lender (until the Mezzanine A Loan is repaid in full) pursuant to time, unless Mezzanine A Lender’s instructions to Lender;
(xv) if a Mortgage Mezzanine B Loan Event of Default shall be is then continuing (and no Mezzanine A Loan Event of Default is then continuing, in which case), all remaining amounts shall be remitted to Mezzanine B Lender (until the Mortgage Mezzanine B Loan Cash Management Account.is repaid in full) pursuant to Mezzanine B Lender’s instructions to Lender;
(cxvi) If on any Payment Date the amount in the Cash Management Account shall be insufficient to make the transfer described in Section 3.2(b)(i), Borrower shall deposit into the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail to make such deposit, the same shall constitute an if a Mezzanine C Loan Event of Default andis then continuing (and no Mezzanine A Loan Event of Default or Mezzanine B Loan Event of Default is then continuing), all remaining amounts to Mezzanine C Lender (until the Mezzanine C Loan is repaid in addition full) pursuant to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c).Mezzanine C Lender’s instructions to Lender;
(dxvii) Notwithstanding anything if a Mezzanine D Loan Event of Default is then continuing (and no Mezzanine A Loan Event of Default, Mezzanine B Loan Event of Default or Mezzanine C Loan Event of Default is then continuing), all remaining amounts to Mezzanine D Lender (until the contrary contained Mezzanine D Loan is repaid in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, full) pursuant to Mezzanine D Lender’s instructions to Lender;
(xviii) if a Mezzanine E Loan Event of Default is then continuing (and no Mezzanine A Loan Event of Default, Mezzanine B Loan Event of Default, Mezzanine C Loan Event of Default or Mezzanine D Loan Event of Default is then continuing), all remaining amounts to Mezzanine E Lender (until the Mezzanine E Loan is repaid in accordance with full) pursuant to Mezzanine E Lender’s instructions to Lender;
(xix) if a Mezzanine F Loan Event of Default is then continuing (and no Mezzanine A Loan Event of Default, Mezzanine B Loan Event of Default, Mezzanine C Loan Event of Default, Mezzanine D Loan Event of Default or Mezzanine E Loan Event of Default is then continuing), all remaining amounts to Mezzanine F Lender (until the organizational documents of Borrower and applicable law, which distribution shall be immediately payable Mezzanine F Loan is repaid in full) pursuant to Junior Mezzanine F Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectively.instructions to Lender;
Appears in 1 contract
Distributions from Cash Management Account. (a) The Cash Management Agreement shall provide that the Cash Management Bank shall remit to the Junior Mezzanine Cash Management Accountan account specified by Borrower, at the end of each Business Day (or, at Borrower’s 's election, on a less frequent basis), the amount, if any, by which all amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), on the next Payment Date pursuant to Section 3.2(b) (the “Minimum Balance”)Account; provided, however, that Lender shall terminate such remittances during the continuance of an Event of Default or Cash Trap Period upon notice to the Cash Management Bank. Lender may notify the Cash Management Bank at any time of any change in the Minimum Balance. Lender shall deliver a copy of any notice of a change in the Minimum Balance to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan Documents.
(b) On During a Cash Trap Period, on each Payment Date, provided no Event of Default has occurred and is continuing, Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) to the Tax and Insurance Reserve Account, the amounts then required to be deposited therein pursuant to Section 3.4;
(ii) to Lender, the amount of all scheduled or delinquent interest and principal on the Loan and all other amounts then due and payable under the Loan Documents;
Documents (ii) to Lender, with any Restricted Cash required to be used to prepay the Loan pursuant to Section 2.1(c)(iamounts in respect of principal paid last);
(iii) to LenderBorrower, any Xxxx Excess Cash Flow required an amount equal to the Budgeted Operating Expenses for the month in which such Payment Date occurs, provided that the amounts disbursed to Borrower pursuant to this clause (iii) shall be used by Borrower solely to prepay pay Budgeted Operating Expenses for such month (Borrower agreeing that, in the Loan pursuant event that such Budgeted Operating Expenses exceed the actual operating expenses for such month, such excess amounts shall be remitted by Borrower to Section 2.1(c)(ii)the Cash Management Account prior to the next succeeding Payment Date) and provided further that no amounts will be disbursed to Borrower in respect of the fees of the Approved Property Manager to the extent such fees exceed 2.5% of Operating Income;
(iv) for so long as the Junior Mezzanine Loan remains outstanding, all remaining amounts to the Junior Mezzanine Cash Management Capital Expenditure Reserve Account, the amounts required to be deposited therein pursuant to Section 3.6, any additional amount required to cause the amount in the Capital Expenditure Reserve Account to equal the Budgeted Capital Expenditures for the month in which such Payment Date occurs, as well as any additional amount reasonably requested by Borrower in writing at least 3 Business Days prior to such Payment Date in respect of emergency Capital Expenditures, which written request shall be accompanied by a reasonably detailed description of the emergency;
(v) to the TI/LC Reserve Account, any amount required to be deposited therein pursuant to Section 3.5; and
(vvi) if the Junior Mezzanine Loan is no longer outstanding, all remaining amounts to such account accounts as shall be designated by Borrower from time to time, unless a Mortgage Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management Accountmay direct.
(c) If During a Cash Trap Period, if on any Payment Date the amount in the Cash Management Account shall be insufficient to make all of the transfer transfers described in Section Sections 3.2(b)(i) through (v), Borrower shall deposit into the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail to make such deposit, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c3.10(c).
(d) Notwithstanding anything . During a Cash Trap Period, if sufficient funds are on deposit in the Cash Management Account to make all required payments hereunder, then no Event of Default shall occur hereunder due to the contrary contained in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as failure to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that actually make all such required payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectively.
Appears in 1 contract
Samples: Loan Agreement (Alexanders Inc)
Distributions from Cash Management Account. (a) The Cash Management Agreement shall provide that the Cash Management Bank shall remit to the Junior Mezzanine Cash Management Accountan account specified by Borrower, at the end of each Business Day (or, at Borrower’s 's election, on a less frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account (other than Xxxx Excess Cash Flow and Restricted Cash) exceed the aggregate amount required to be paid to or reserved with Lender, or prepaid pursuant to Section 2.1(c)(i), Lender on the next Payment Date pursuant to Section 3.2(b) hereto (the “"Minimum Balance”"); provided, however, that Lender shall terminate such remittances during the continuance of an Event of Default or Trigger Period upon notice to the Cash Management Bank. Lender may notify the Cash Management Bank at any time of any change in the Minimum Balance. Lender shall deliver , with a copy of any such notice of a change in the Minimum Balance provided to Borrower, for information only (but any failure by Lender to do so shall not in any way limit Borrower’s obligations or liabilities hereunder). Any payment received by any Borrower pursuant to this Section 3.2 shall be received free of the Lien of the Loan Documents.
(b) On each Payment Date, provided no Event of Default has occurred and is continuing, Lender shall transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:
(i) to the Basic Carrying Costs Escrow Account, the amounts then required to be deposited therein pursuant to Section 3.4;
(ii) to Lender, the amount of all scheduled or delinquent interest and principal on the Loan and all other amounts then due and payable under the Loan Documents;
Documents (ii) to Lender, with any Restricted Cash required to be used to prepay the Loan pursuant to Section 2.1(c)(iamounts in respect of principal paid last);
(iii) during the continuance of a Trigger Period, to LenderBorrower, any Xxxx Excess Cash Flow required an amount equal to the Budgeted Operating Expenses for the month in which such Payment Date occurs, provided that the amounts disbursed to Borrower pursuant to this clause (iii) shall be used by Borrower solely to prepay pay Budgeted Operating Expenses for such month reduced by the Loan pursuant amount, if any, by which Budgeted Operating Expenses disbursed in the previous month exceeded actual operating expenses for such month and provided further that no amounts will be disbursed to Section 2.1(c)(ii)Borrower in respect of the fees of the Approved Property Manager to the extent such fees exceed three percent (3%) of Operating Income;
(iv) for so long as to the Junior Mezzanine Loan remains outstandingCapital Expenditure Reserve Account, the amounts required to be deposited therein pursuant to Section 3.6;
(v) to the TI/LC Reserve Account, any amount required to be deposited therein pursuant to Section 3.5;
(vi) if required by Section 3.9 below, during the continuance of a Trigger Period caused solely by a Belks Trigger Event, an amount equal to $166,666.67 to the Belks Reserve Account until the balance contained therein is equal to $2,000,000.00; and
(vii) during the continuance of a Trigger Period caused by any event other than a Belks Trigger Event, all remaining amounts to the Junior Mezzanine Excess Cash Management Flow Reserve Account; and
(vviii) if the Junior Mezzanine Loan is no longer outstanding, all remaining amounts amounts, if any, to such account accounts as shall be designated by Borrower from time to time, unless a Mortgage Loan Event of Default shall be continuing, in which case, all remaining amounts shall be remitted to the Mortgage Loan Cash Management Accountmay direct.
(c) If on any Payment Date the amount in the Cash Management Account shall be insufficient to make all of the transfer transfers described in Section 3.2(b)(i) through (v), Borrower shall deposit into the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail to make such deposit, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Lender may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.5(c3.11(c).
(d) Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or the Junior Mezzanine Loan Documents, the parties hereto acknowledge and agree that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Junior Mezzanine Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Borrower to Junior Mezzanine Lender or applied to the Junior Mezzanine Loan or to any account specified by Junior Mezzanine Lender, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender shall pay to Borrower, and Borrower shall then immediately distribute to Junior Mezzanine Borrower, pursuant to and in accordance with the organizational documents of Borrower and applicable law, which distribution shall be immediately payable to Junior Mezzanine Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Junior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectively.
Appears in 1 contract
