Monthly Funding. (a) Mezzanine Borrower hereby instructs Mezzanine Lender to transfer (and pursuant to the Account Agreement (Mezzanine) shall irrevocably authorize Cash Management Bank (Mezzanine) to execute any corresponding instructions of Mezzanine Lender), and Mezzanine Lender shall transfer (or cause Cash Management Bank to transfer pursuant to disbursement instructions from Mezzanine Lender) to the Mezzanine Debt Service Reserve Account, from the Mezzanine Account by 11:00 am New York time on the first (1st) calendar day of each calendar month (and if such day is not a Business Day then on the immediately preceding Business Day) or as soon thereafter as there shall be sufficient collected funds on deposit in the Mezzanine Account, and from time to time (but no less frequently than weekly thereafter) funds in an amount equal to the sum of any Protective Advances which may have been advanced by (and not previously reimbursed to) the Mezzanine Lender pursuant to the terms of the Loan Documents (Mezzanine) to cure any Default or Event of Default, any Mortgage Default or Mortgage Event of Default, or to protect the Collateral together with any interest payable on such amounts pursuant to the Loan Documents (Mezzanine), plus (x) the unpaid Debt Service (Mezzanine) for the next occurring Payment Date, plus (y) an amount equal to such payments for any prior month(s), to the extent not previously paid, plus (z) an amount equal to the amount, if any, deducted from the Mezzanine Account in any preceding month to pay any other amounts then due under the Loan Documents (Mezzanine) (other than any Debt Service (Mezzanine)). Mezzanine Borrower acknowledges that Mezzanine Lender shall not be required to make such withdrawal and deposit until such time as Mezzanine Lender is able to calculate the amount of the Debt Service (Mezzanine) for the next occurring Payment Date. As used herein, the term “Net Excess Cash Flow” means the amount available in the Mezzanine Account after the transfers to the Mezzanine Debt Service Reserve Account required under this Section 3.1.6 have been made and the term “Net Excess Cash Flow Commencement Date” shall mean the date such amounts have been fully funded or reserved within the Mezzanine Account in any given calendar month.
Appears in 2 contracts
Samples: Mezzanine Loan and Security Agreement (Strategic Hotels & Resorts, Inc), Mezzanine Loan and Security Agreement (Strategic Hotels & Resorts, Inc)
Monthly Funding. (a) Mezzanine Borrower hereby instructs irrevocably authorizes Mezzanine Lender to transfer (and pursuant to the Mezzanine Account Agreement (Mezzanine) shall irrevocably authorize Cash Management Bank (Second Mezzanine) to execute any corresponding instructions of Mezzanine Lender), and Mezzanine Lender shall transfer (or cause Cash Management Bank to transfer pursuant to disbursement instructions from Mezzanine Lender) to the Mezzanine Debt Service Reserve Account, from the Mezzanine Account by 11:00 am a.m. New York time on the first (1st) calendar day date on which each payment of each calendar month (and if such day Master Lease Rent under the Master Lease is not a Business Day then on made to the immediately preceding Business Day) Holding Account, or as soon thereafter as there shall be sufficient collected funds on deposit in the Mezzanine Account, and from time to time (but no less frequently than weekly thereafter) funds in an amount equal to the sum of any Protective Advances which may have been advanced by (and not previously reimbursed to) the Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents (Mezzanine) to cure any Default or Event of Default, any Mortgage Default or Mortgage Event of Default, or to protect the Collateral together with any interest payable on such amounts pursuant to the Mezzanine Loan Documents (Mezzanine)Documents, plus (x) the unpaid Debt Service (Second Mezzanine) for the next occurring Payment Date, plus (y) an amount equal to such payments for any prior month(s), to the extent not previously paid, plus (z) an amount equal to the amount, if any, deducted from the Mezzanine Account in any preceding month to pay any other amounts then due under the Mezzanine Loan Documents (Mezzanine) (other than any Debt Service (Second Mezzanine)). Mezzanine Borrower acknowledges that Mezzanine Lender shall not be required to make such withdrawal and deposit until such time as Mezzanine Lender is able to calculate the amount of the Debt Service (Second Mezzanine) for the next occurring Payment Date. As used herein, the term “Net Excess Cash Flow” means the amount available .
(b) If for any reason there will be insufficient amounts in the Mezzanine Account after the transfers to the Mezzanine Debt Service Reserve Account on any Payment Date to pay the Debt Service (Second Mezzanine) due on such Payment Date, Mezzanine Borrower shall immediately deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Debt Service Reserve Account. Any failure by Mezzanine Borrower to deposit the full amount required under this by the preceding sentence shall constitute an Event of Default hereunder. If Mezzanine Lender shall reasonably determine that there will be insufficient amounts in the Mezzanine Account to pay any Protective Advances as and when the same are due and payable, Mezzanine Lender shall provide written notice of same to Mezzanine Borrower setting forth the basis for such determination. Within five (5) Business Days of receipt of said notice, Mezzanine Borrower shall deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Account. Any failure by Mezzanine Borrower to deposit the full amount required by the preceding sentence within said five (5) Business Day period shall constitute an Event of Default hereunder.
(c) Mezzanine Lender agrees to deliver to Mortgage Lender a monthly notice letter (the Mezzanine Lender Monthly Debt Service Notice) at least five (5) Business Days prior to each Payment Date setting forth the Debt Service (Second Mezzanine) payable by Mezzanine Borrower on the first Payment Date occurring after the date such notice is delivered.
(d) Mezzanine Borrower hereby acknowledges that, pursuant to Section 3.1.6 have been made of the Loan Agreement (Mortgage), (i) to the extent Mortgage Lender has received a Senior Mezzanine Loan Default Notice and until such time as Mortgage Lender receives a Senior Mezzanine Loan Default Revocation Notice, the term “Net Mortgage Borrower and each Senior Mezzanine Borrower has irrevocably directed that Excess Cash Flow Commencement Date” shall mean and any other payments to be made to Mezzanine Borrower, any Junior Mezzanine Borrower, Mezzanine Lender, or any Junior Mezzanine Lender are to be deposited directly into the date such amounts have been fully funded or reserved within Senior Mezzanine Account for application as provided in such Senior Mezzanine Loan Agreement (in lieu of transferring such funds to such accounts of the Mezzanine Account in Lender, any given calendar monthJunior Mezzanine Lender, or Mortgage Borrower as the Mortgage Borrower may have so directed if the Mortgage Lender had not received such notice from Senior Mezzanine Lender). Notwithstanding any provision herein to the contrary, provided no Event of Default has occurred or is continuing, there shall be disbursed to Mezzanine Borrower the Proceeds of a Condemnation or Casualty remaining after payment of all amounts to which Mortgage Lender and each Senior Mezzanine Lender are entitled. Mezzanine Borrower agrees that Mezzanine Lender shall not be required to deliver to Mortgage Lender a Mezzanine Loan Default Notice prior to the deposit of Proceeds into the Mezzanine Account.
Appears in 2 contracts
Samples: Mezzanine Loan and Security Agreement (Toys R Us Inc), Mezzanine Loan and Security Agreement (Toys R Us Inc)
Monthly Funding. (a) Mezzanine Borrower hereby instructs irrevocably authorizes Mezzanine Lender to transfer (and pursuant to the Mezzanine Account Agreement (Mezzanine) shall irrevocably authorize Cash Management Bank (First Mezzanine) to execute any corresponding instructions of Mezzanine Lender), and Mezzanine Lender shall transfer (or cause Cash Management Bank to transfer pursuant to disbursement instructions from Mezzanine Lender) to the Mezzanine Debt Service Reserve Account, from the Mezzanine Account by 11:00 am a.m. New York time on the first (1st) calendar day date on which each payment of each calendar month (and if such day Master Lease Rent under the Master Lease is not a Business Day then on made to the immediately preceding Business Day) Holding Account, or as soon thereafter as there shall be sufficient collected funds on deposit in the Mezzanine Account, and from time to time (but no less frequently than weekly thereafter) funds in an amount equal to the sum of any Protective Advances which may have been advanced by (and not previously reimbursed to) the Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents (Mezzanine) to cure any Default or Event of Default, any Mortgage Default or Mortgage Event of Default, or to protect the Collateral together with any interest payable on such amounts pursuant to the Mezzanine Loan Documents (Mezzanine)Documents, plus (x) the unpaid Debt Service (First Mezzanine) for the next occurring Payment Date, plus (y) an amount equal to such payments for any prior month(s), to the extent not previously paid, plus (z) an amount equal to the amount, if any, deducted from the Mezzanine Account in any preceding month to pay any other amounts then due under the Mezzanine Loan Documents (Mezzanine) (other than any Debt Service (First Mezzanine)). Mezzanine Borrower acknowledges that Mezzanine Lender shall not be required to make such withdrawal and deposit until such time as Mezzanine Lender is able to calculate the amount of the Debt Service (First Mezzanine) for the next occurring Payment Date. As used herein, the term “Net Excess Cash Flow” means the amount available .
(b) If for any reason there will be insufficient amounts in the Mezzanine Account after the transfers to the Mezzanine Debt Service Reserve Account on any Payment Date to pay the Debt Service (First Mezzanine) due on such Payment Date, Mezzanine Borrower shall immediately deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Debt Service Reserve Account. Any failure by Mezzanine Borrower to deposit the full amount required under this by the preceding sentence shall constitute an Event of Default hereunder. If Mezzanine Lender shall reasonably determine that there will be insufficient amounts in the Mezzanine Account to pay any Protective Advances as and when the same are due and payable, Mezzanine Lender shall provide written notice of same to Mezzanine Borrower setting forth the basis for such determination. Within five (5) Business Days of receipt of said notice, Mezzanine Borrower shall deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Account. Any failure by Mezzanine Borrower to deposit the full amount required by the preceding sentence within said five (5) Business Day period shall constitute an Event of Default hereunder.
(c) Mezzanine Lender agrees to deliver to Mortgage Lender a monthly notice letter (the Mezzanine Lender Monthly Debt Service Notice) at least five (5) Business Days prior to each Payment Date setting forth the Debt Service (First Mezzanine) payable by Mezzanine Borrower on the first Payment Date occurring after the date such notice is delivered.
(d) Mezzanine Borrower hereby acknowledges that, pursuant to Section 3.1.6 have been made of the Loan Agreement (Mortgage), (i) to the extent Mortgage Lender has received a Mezzanine Loan Default Notice and until such time as Mortgage Lender receives a Mezzanine Loan Default Revocation Notice, the term “Net Mortgage Borrower has irrevocably directed that Excess Cash Flow Commencement Date” shall mean the date such amounts have been fully funded and any other payments to be made to Mezzanine Borrower, any Junior Mezzanine Borrower, Mezzanine Lender, or reserved within any Junior Mezzanine Lender are to be deposited directly into the Mezzanine Account for application as provided in this Agreement (in lieu of transferring such funds to such accounts of the Mezzanine Lender, any given calendar monthJunior Mezzanine Lender or Mortgage Borrower as the Mortgage Borrower may have so directed if the Mortgage Lender had not received such notice from Mezzanine Lender). Notwithstanding any provision herein to the contrary, provided no Event of Default has occurred or is continuing, there shall be disbursed to Mezzanine Borrower the Proceeds of a Condemnation or Casualty remaining after payment of all amounts to which Mortgage Lender is entitled. Mezzanine Borrower agrees that Mezzanine Lender shall not be required to deliver to Mortgage Lender a Mezzanine Loan Default Notice prior to the deposit of Proceeds into the Mezzanine Account.
Appears in 2 contracts
Samples: Mezzanine Loan and Security Agreement (Toys R Us Inc), Mezzanine Loan and Security Agreement (Toys R Us Inc)
Monthly Funding. (a) Mezzanine Borrower hereby instructs Mezzanine Lender to transfer (and pursuant to the Account Agreement (Junior Mezzanine) shall irrevocably authorize Cash Management Bank (Junior Mezzanine) to execute any corresponding instructions of Mezzanine Lender), and Mezzanine Lender shall transfer (or cause Cash Management Bank to transfer pursuant to disbursement instructions from Mezzanine Lender) to the Mezzanine Debt Service Reserve Account, from the Junior Mezzanine Account by 11:00 am New York time on the first (1st) calendar day of each calendar month (and if such day is not a Business Day then on the immediately preceding Business Day) or as soon thereafter as there shall be sufficient collected funds on deposit in the Junior Mezzanine Account, and from time to time (but no less frequently than weekly thereafter) funds in an amount equal to the sum of any Protective Advances which may have been advanced by (and not previously reimbursed to) the Mezzanine Lender pursuant to the terms of the Loan Documents (Junior Mezzanine) to cure any Default or Event of Default, any Mortgage Default or Mortgage Event of Default, or to protect the Collateral together with any interest payable on such amounts pursuant to the Loan Documents (Junior Mezzanine), plus (x) the unpaid Debt Service (Junior Mezzanine) for the next occurring Payment Date, plus (y) an amount equal to such payments for any prior month(s), to the extent not previously paid, plus (z) an amount equal to the amount, if any, deducted from the Junior Mezzanine Account in any preceding month to pay any other amounts then due under the Loan Documents (Junior Mezzanine) (other than any Debt Service (Junior Mezzanine)). Mezzanine Borrower acknowledges that Mezzanine Lender shall not be required to make such withdrawal and deposit until such time as Mezzanine Lender is able to calculate the amount of the Debt Service (Junior Mezzanine) for the next occurring Payment Date. As used herein, the term “Net Excess Cash Flow” Flow means the amount available in the Junior Mezzanine Account after the transfers to the Mezzanine Debt Service Reserve Account required under this Section 3.1.6 have been made and the term “Net Excess Cash Flow Commencement Date” shall mean the date such amounts have been fully funded or reserved within the Mezzanine Account in any given calendar month.Net
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (CNL Hotels & Resorts, Inc.)
Monthly Funding. (a) Mezzanine Borrower hereby instructs Mezzanine irrevocably authorizes Lender to transfer (and pursuant to the Account Agreement (Mezzanine) shall irrevocably authorize Cash Management Bank (Mezzanine) to execute any corresponding instructions of Mezzanine Lender)transfer, and Mezzanine Lender shall transfer (or cause Cash Management Bank to transfer pursuant to disbursement instructions from Mezzanine Lender) to the Mezzanine Debt Service Reserve Accounttransfer, from the Mezzanine Collateral Account by 11:00 am a.m. New York time on the first (1st) calendar day of each calendar month (and if such day is not a Business Day then on the immediately preceding Business Day) Payment Date, or as soon thereafter as there shall be sufficient collected funds on deposit in the Mezzanine Collateral Account, and from time to time (but no less frequently than weekly thereafter) to Lender funds in an amount equal to the sum of any Protective Advances which may have been advanced by (and not previously reimbursed to) the Mezzanine Lender pursuant to the terms of the Loan Documents (Mezzanine) to cure any Default or Event of Default, any Mortgage Senior Loan Default or Mortgage Senior Loan Event of Default, or to protect the Collateral together with any interest payable on such amounts pursuant to the Loan Documents (Mezzanine)Documents, plus (x) the unpaid Mezzanine Loan Debt Service (Mezzanine) for Amount due on the next occurring Payment DateDate on which the transfer from the Collateral Account is made, plus (y) an amount equal to such payments for any prior month(s), to the extent not previously paid, plus (z) an amount equal to the amount, if any, deducted from the Mezzanine Collateral Account in any preceding month to pay any other amounts then due under the Loan Documents (Mezzanine) (other than any Mezzanine Loan Debt Service Amounts).
(Mezzanineb) If for any reason there will be insufficient amounts in the Collateral Account on any Payment Date to pay the Mezzanine Loan Debt Service Amount due on such Payment Date, Borrower shall immediately deposit into the Collateral Account an amount equal to the shortfall of available funds. Any failure by Borrower to deposit the full amount required by the preceding sentence shall constitute an Event of Default hereunder. If Lender shall reasonably determine that there will be insufficient amounts in the Collateral Account to pay any Protective Advances as and when the same are due and payable, Lender shall provide written notice of same to Borrower setting forth the basis for such determination. Within five (5) Business Days of receipt of said notice, Borrower shall deposit into the Collateral Account an amount equal to the shortfall of available funds in the Collateral Account. Any failure by Borrower to deposit the full amount required by the preceding sentence within said five (5) Business Day period shall constitute an Event of Default hereunder.
(c) Lender agrees to deliver to Mortgage Lender at least five (5) Business Days prior to each Payment Date a written notice setting forth the Mezzanine Loan Debt Service Amount payable by Borrower on the first Payment Date occurring after the date such notice is delivered (the “Mezzanine Lender Monthly Debt Service Notice”)); provided, however, that any Mezzanine Lender Monthly Debt Service Notice sent to Mortgage Lender shall be applicable with respect to all future Payment Dates until Lender sends a new Mezzanine Lender Monthly Debt Service Notice to Mortgage Lender, it being understood that Lender will not be required to send a new Mezzanine Lender Monthly Debt Service Notice to Mortgage Lender unless and until the Mezzanine Loan Debt Service Amount due on the ensuing Payment Date is different from the Mezzanine Loan Debt Service Amount due on the immediately preceding Payment Date, and Mortgage Lender shall be permitted to rely on the most recently received Mezzanine Lender Monthly Debt Service Notice until Mortgage Lender receives a new Mezzanine Lender Monthly Debt Service Notice from Lender. Mezzanine Borrower acknowledges agrees that Mezzanine Lender shall not be required to make deliver to Mortgage Lender any additional notice with respect to distribution of Proceeds prior to the deposit of Proceeds into the Collateral Account.
(d) Borrower hereby acknowledges that, (i) pursuant to Section 3.1.6 of the Mortgage Loan Agreement, (A) to the extent that a Mortgage Event of Default has occurred and is continuing, all Excess Cash Flow and any other payments that would otherwise be distributed to Borrower, First Mezzanine Borrower, Lender or First Mezzanine Lender are to be held in the Holding Account and applied in accordance with the Mortgage Loan Agreement (unless otherwise agreed to by Mortgage Lender) and (B) to the extent that a First Mezzanine Event of Default has occurred and is continuing but no Mortgage Event of Default has occurred and is continuing, all Excess Cash Flow and any other payments that would otherwise be distributed to Borrower or Lender are to be deposited into the First Mezzanine Collateral Account and applied in accordance with the First Mezzanine Loan Agreement (unless otherwise agreed to by First Mezzanine Lender) and (ii) to the extent required by, and in accordance with Section 6.2.3(b) of the Mortgage Loan Agreement, any Proceeds will be disbursed to Lender to prepay the Loan in the amount of the Release Price for such withdrawal Individual Property to which the Proceeds relate. Any Proceeds received by Mortgage Lender in excess of the release price specified in Section 6.2.3(b) of the Mortgage Loan Agreement for such affected Individual Property shall be paid in accordance with the payment priorities set forth in Section 6.2.3(b) of the Mortgage Loan Agreement.
(e) Borrower hereby also acknowledges that (i) Lender has the right to deliver notice to Mortgage Lender that an Event of Default has occurred and deposit is continuing under the Loan Documents (a “Mezzanine Loan Default Notice”), and (ii) pursuant to the Mortgage Loan Agreement, provided there is no Senior Loan Event of Default and to the extent Mortgage Lender has received a Mezzanine Loan Default Notice, Mortgage Borrower has irrevocably directed that all Excess Cash Flow is to be deposited directly into the Collateral Account for application as provided in this Agreement (in lieu of transferring such funds to the Mortgage Borrower’s Account if Mortgage Lender had not received a Mezzanine Loan Default Notice) until such time as Mezzanine Mortgage Lender receives a notice from Lender that such Event of Default is able no longer continuing.
(f) Notwithstanding anything to calculate the amount contrary in this Agreement or the other Loan Documents, payments or distributions made directly to or on behalf of any Senior Borrower or any Senior Lender, including the distribution or payment of any Asset Management Fee, pursuant to any of the Debt Service (Mezzanine) for Senior Loan Documents, and any funds distributed or paid to the next occurring Payment Date. As used hereinBorrower’s Account pursuant to this Agreement, shall be free and clear of any lien of the Senior Loan Documents and the Loan Documents and may be paid, used, or distributed without the same being transferred to the Mortgage Collateral Account, the term “Net Excess Cash Flow” means Collateral Account, or the amount available in the First Mezzanine Account after the transfers to the Mezzanine Debt Service Reserve Account required under this Section 3.1.6 have been made and the term “Net Excess Cash Flow Commencement Date” shall mean the date such amounts have been fully funded or reserved within the Mezzanine Account in any given calendar monthCollateral Account.
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Bloomin' Brands, Inc.)
Monthly Funding. (a) Mezzanine Borrower hereby instructs irrevocably authorizes Mezzanine Lender to transfer (and pursuant to the Mezzanine Account Agreement (Mezzanine) shall irrevocably authorize Cash Management Bank (Third Mezzanine) to execute any corresponding instructions of Mezzanine Lender), and Mezzanine Lender shall transfer (or cause Cash Management Bank to transfer pursuant to disbursement instructions from Mezzanine Lender) to the Mezzanine Debt Service Reserve Account, from the Mezzanine Account by 11:00 am a.m. New York time on the first (1st) calendar day date on which each payment of each calendar month (and if such day Master Lease Rent under the Master Lease is not a Business Day then on made to the immediately preceding Business Day) Holding Account, or as soon thereafter as there shall be sufficient collected funds on deposit in the Mezzanine Account, and from time to time (but no less frequently than weekly thereafter) funds in an amount equal to the sum of any Protective Advances which may have been advanced by (and not previously reimbursed to) the Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents (Mezzanine) to cure any Default or Event of Default, any Mortgage Default or Mortgage Event of Default, or to protect the Collateral together with any interest payable on such amounts pursuant to the Mezzanine Loan Documents (Mezzanine)Documents, plus (x) the unpaid Debt Service (Third Mezzanine) for the next occurring Payment Date, plus (y) an amount equal to such payments for any prior month(s), to the extent not previously paid, plus (z) an amount equal to the amount, if any, deducted from the Mezzanine Account in any preceding month to pay any other amounts then due under the Mezzanine Loan Documents (Mezzanine) (other than any Debt Service (Third Mezzanine)). Mezzanine Borrower acknowledges that Mezzanine Lender shall not be required to make such withdrawal and deposit until such time as Mezzanine Lender is able to calculate the amount of the Debt Service (Third Mezzanine) for the next occurring Payment Date. As used herein, the term “Net Excess Cash Flow” means the amount available .
(b) If for any reason there will be insufficient amounts in the Mezzanine Account after the transfers to the Mezzanine Debt Service Reserve Account on any Payment Date to pay the Debt Service (Third Mezzanine) due on such Payment Date, Mezzanine Borrower shall immediately deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Debt Service Reserve Account. Any failure by Mezzanine Borrower to deposit the full amount required under this by the preceding sentence shall constitute an Event of Default hereunder. If Mezzanine Lender shall reasonably determine that there will be insufficient amounts in the Mezzanine Account to pay any Protective Advances as and when the same are due and payable, Mezzanine Lender shall provide written notice of same to Mezzanine Borrower setting forth the basis for such determination. Within five (5) Business Days of receipt of said notice, Mezzanine Borrower shall deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Account. Any failure by Mezzanine Borrower to deposit the full amount required by the preceding sentence within said five (5) Business Day period shall constitute an Event of Default hereunder.
(c) Mezzanine Lender agrees to deliver to Mortgage Lender a monthly notice letter (the Mezzanine Lender Monthly Debt Service Notice) at least five (5) Business Days prior to each Payment Date setting forth the Debt Service (Third Mezzanine) payable by Mezzanine Borrower on the first Payment Date occurring after the date such notice is delivered.
(d) Mezzanine Borrower hereby acknowledges that, pursuant to Section 3.1.6 have been made of the Loan Agreement (Mortgage), (i) to the extent Mortgage Lender has received a Senior Mezzanine Loan Default Notice and until such time as Mortgage Lender receives a Senior Mezzanine Loan Default Revocation Notice, the term “Net Mortgage Borrower and each Senior Mezzanine Borrower has irrevocably directed that Excess Cash Flow Commencement Date” shall mean and any other payments to be made to Mezzanine Borrower, any Junior Mezzanine Borrower, Mezzanine Lender, or any Junior Mezzanine Lender are to be deposited directly into the date such amounts have been fully funded or reserved within Senior Mezzanine Account for application as provided in such Senior Mezzanine Loan Agreement (in lieu of transferring such funds to such accounts of the Mezzanine Account in Lender, any given calendar monthJunior Mezzanine Lender, or Mortgage Borrower as the Mortgage Borrower may have so directed if the Mortgage Lender had not received such notice from Senior Mezzanine Lender). Notwithstanding any provision herein to the contrary, provided no Event of Default has occurred or is continuing, there shall be disbursed to Mezzanine Borrower the Proceeds of a Condemnation or Casualty remaining after payment of all amounts to which Mortgage Lender and each Senior Mezzanine Lender are entitled. Mezzanine Borrower agrees that Mezzanine Lender shall not be required to deliver to Mortgage Lender a Mezzanine Loan Default Notice prior to the deposit of Proceeds into the Mezzanine Account.
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Toys R Us Inc)
Monthly Funding. (a) Mezzanine Borrower hereby instructs irrevocably authorizes Mezzanine Lender to transfer (and and, pursuant to the Mezzanine Account Agreement (Mezzanine) shall irrevocably authorize Cash Management Bank (Third Mezzanine) to execute any corresponding instructions of Mezzanine Lender), and Mezzanine Lender shall transfer (or cause Cash Management Bank to transfer pursuant to disbursement instructions from Mezzanine Lender) to the Mezzanine Debt Service Reserve Accounttransfer, from the Mezzanine Account by 11:00 am a.m. New York time on the first date on which each payment of funds on deposit in the Third Mezzanine Debt Service Reserve Account under the Loan Agreement (1stMortgage) calendar day of each calendar month (and if such day is not a Business Day then on made to the immediately preceding Business Day) Mezzanine Account, or as soon thereafter as there shall be sufficient collected funds are in the Mezzanine Account to make the applicable transfers, commencing on deposit in the date of the first transfer of funds from the Third Mezzanine Debt Service Reserve Account under the Loan Agreement (Mortgage) to the Mezzanine Account, and from time to time (but no less frequently than weekly thereafter) funds in an amount equal to the sum of any Protective Advances which may have been advanced by (and not previously reimbursed to) the Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents (Mezzanine) to cure any Default or Event of Default, any Mortgage Default or Mortgage Event of Default, or to protect the Collateral together with any interest payable on such amounts pursuant to the Mezzanine Loan Documents (Mezzanine)Documents, plus (x) the unpaid Debt Service (Third Mezzanine) for the next occurring Payment Date, plus (y) an amount equal to such payments for any prior month(s), to the extent not previously paid, plus (z) an amount equal to the amount, if any, deducted from the Mezzanine Account in any preceding month to pay any other amounts then due under the Mezzanine Loan Documents (Mezzanine) (other than any Debt Service (Third Mezzanine)). Mezzanine Borrower acknowledges that Mezzanine Lender shall not be required to make such withdrawal and deposit until such time as Mezzanine Lender is able to calculate the amount of the Debt Service (Third Mezzanine) for the next occurring Payment Date. As used herein, the term “Net Excess Cash Flow” means the amount available .
(b) If for any reason there will be insufficient amounts in the Mezzanine Account after the transfers to the Mezzanine Debt Service Reserve Account on any Payment Date to pay the Debt Service (Third Mezzanine) due on such Payment Date, Mezzanine Borrower shall immediately deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Debt Service Reserve Account. Any failure by Mezzanine Borrower to deposit the full amount required under this by the preceding sentence shall constitute an Event of Default hereunder. If Mezzanine Lender shall reasonably determine that there will be insufficient amounts in the Mezzanine Account to pay any Protective Advances as and when the same are due and payable, Mezzanine Lender shall provide written notice of same to Mezzanine Borrower setting forth the basis for such determination. Within ten (10) Business Days of receipt of said notice, Mezzanine Borrower shall deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Account. Any failure by Mezzanine Borrower to deposit the full amount required by the preceding sentence within said ten (10) Business Day period shall constitute an Event of Default hereunder.
(c) Mezzanine Lender (so long as Mezzanine Lender is not the same entity as Mortgage Lender) agrees to deliver to Mortgage Lender a monthly notice letter (the Third Mezzanine Lender Monthly Debt Service Notice as described in the Loan Agreement (Mortgage)) at least five (5) Business Days prior to each Payment Date setting forth the Debt Service (Third Mezzanine) payable by Mezzanine Borrower on the first Payment Date occurring after the date such notice is delivered.
(d) Mezzanine Borrower hereby acknowledges that, pursuant to Section 3.1.6 have been made of the Loan Agreement (Mortgage), to the extent Mortgage Lender has received a Mezzanine Loan Default Notice and until such time as Mortgage Lender receives a Mezzanine Loan Default Revocation Notice, the term “Net Mortgage Borrower has irrevocably directed that Excess Cash Flow Commencement Date” shall mean the date such amounts have been fully funded and any other payments to be made to Mezzanine Borrower, any Junior Mezzanine Borrower, Mezzanine Lender, or reserved within any Junior Mezzanine Lender are to be deposited directly into the Mezzanine Account for application as provided in this Agreement (in lieu of transferring such funds to such accounts of the Mezzanine Lender, any given calendar monthJunior Mezzanine Lender or Mortgage Borrower as the Mortgage Borrower may have so directed if the Mortgage Lender had not received such notice from Mezzanine Lender). Mezzanine Lender shall promptly provide Mortgage Lender with a Mezzanine Loan Default Revocation Notice if an Event of Default which has occurred under the Mezzanine Loan Documents is no longer continuing.
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Station Casinos Inc)
Monthly Funding. (a) Mezzanine Borrower hereby instructs irrevocably authorizes Mezzanine Lender to transfer (and and, pursuant to the Mezzanine Account Agreement (Mezzanine) shall irrevocably authorize Cash Management Bank (Second Mezzanine) to execute any corresponding instructions of Mezzanine Lender), and Mezzanine Lender shall transfer (or cause Cash Management Bank to transfer pursuant to disbursement instructions from Mezzanine Lender) to the Mezzanine Debt Service Reserve Accounttransfer, from the Mezzanine Account by 11:00 am a.m. New York time on the first date on which each payment of funds on deposit in the Second Mezzanine Debt Service Reserve Account under the Loan Agreement (1stMortgage) calendar day of each calendar month (and if such day is not a Business Day then on made to the immediately preceding Business Day) Mezzanine Account, or as soon thereafter as there shall be sufficient collected funds are in the Mezzanine Account to make the applicable transfers, commencing on deposit in the date of the first transfer of funds from the Second Mezzanine Debt Service Reserve Account under the Loan Agreement (Mortgage) to the Mezzanine Account, and from time to time (but no less frequently than weekly thereafter) funds in an amount equal to the sum of any Protective Advances which may have been advanced by (and not previously reimbursed to) the Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents (Mezzanine) to cure any Default or Event of Default, any Mortgage Default or Mortgage Event of Default, or any Senior Mezzanine Default or Senior Mezzanine Event of Default or to protect the Collateral or the Senior Mezzanine Collateral together with any interest payable on such amounts pursuant to the Mezzanine Loan Documents (Mezzanine)Documents, plus (x) the unpaid Debt Service (Second Mezzanine) for the next occurring Payment Date, plus (y) an amount equal to such payments for any prior month(s), to the extent not previously paid, plus (z) an amount equal to the amount, if any, deducted from the Mezzanine Account in any preceding month to pay any other amounts then due under the Mezzanine Loan Documents (Mezzanine) (other than any Debt Service (Second Mezzanine)). Funds representing the sum of Protective Advances, payments for prior months to the extent not previously paid, and sums deducted from the Mezzanine Account in any preceding month to pay any other amounts then due under the Mezzanine Loan Documents (other than Debt Service (Second Mezzanine)) shall be transferred by Mezzanine Lender from the Mezzanine Account to Mezzanine Lender. Funds representing unpaid Debt Service (Second Mezzanine) for the next occurring Payment Date shall be transferred by Mezzanine Lender from the Mezzanine Account to the Mezzanine Debt Service Reserve Account, and on the next occurring Payment Date, Mezzanine Lender shall apply or direct Cash Management Bank (Second Mezzanine) to apply, the funds on deposit in the Mezzanine Debt Service Reserve Account for the payment of Debt Service (Second Mezzanine). Mezzanine Borrower acknowledges that Mezzanine Lender shall not be required to make such withdrawal and deposit until such time as Mezzanine Lender is able to calculate the amount of the Debt Service (Second Mezzanine) for the next occurring Payment Date. As used herein, the term “Net Excess Cash Flow” means the amount available Funds representing any balance in the Mezzanine Account after the foregoing transfers have been completed shall be transferred by Mezzanine Lender from the Mezzanine Account to the “Mezzanine Account” under the Third Mezzanine Loan Agreement within one (1) Business Day after the foregoing transfers have been completed.
(b) If for any reason there will be insufficient amounts in the Mezzanine Debt Service Reserve Account on any Payment Date to pay the Debt Service (Second Mezzanine) due on such Payment Date, Mezzanine Borrower shall immediately deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Debt Service Reserve Account. Any failure by Mezzanine Borrower to deposit the full amount required under this by the preceding sentence shall constitute an Event of Default hereunder. If Mezzanine Lender shall reasonably determine that there will be insufficient amounts in the Mezzanine Account to pay any Protective Advances as and when the same are due and payable, Mezzanine Lender shall provide written notice of same to Mezzanine Borrower setting forth the basis for such determination. Within ten (10) Business Days of receipt of said notice, Mezzanine Borrower shall deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Account. Any failure by Mezzanine Borrower to deposit the full amount required by the preceding sentence within said ten (10) Business Day period shall constitute an Event of Default hereunder.
(c) Mezzanine Lender (so long as Mezzanine Lender is not the same entity as Mortgage Lender) agrees to deliver to Mortgage Lender a monthly notice letter (the Second Mezzanine Lender Monthly Debt Service Notice as described in the Loan Agreement (Mortgage)) at least five (5) Business Days prior to each Payment Date setting forth the Debt Service (Second Mezzanine) payable by Mezzanine Borrower on the first Payment Date occurring after the date such notice is delivered.
(d) Mezzanine Borrower hereby acknowledges that, pursuant to Section 3.1.6 have been made 3.1.7 of the Loan Agreement (Mortgage), to the extent Mortgage Lender has received a Mezzanine Loan Default Notice and until such time as Mortgage Lender receives a Mezzanine Loan Default Revocation Notice, the term “Net Mortgage Borrower has irrevocably directed that Excess Cash Flow Commencement Date” shall mean the date such amounts have been fully funded and any other payments to be made to Mezzanine Borrower, any Junior Mezzanine Borrower, Mezzanine Lender, or reserved within any Junior Mezzanine Lender are to be deposited directly into the Mezzanine Account for application as provided in this Agreement (in lieu of transferring such funds to such accounts of the Mezzanine Lender, any given calendar monthJunior Mezzanine Lender or Mortgage Borrower as the Mortgage Borrower may have so directed if the Mortgage Lender had not received such notice from Mezzanine Lender). Mezzanine Lender shall promptly provide Mortgage Lender with a Mezzanine Loan Default Revocation Notice if an Event of Default which has occurred under the Mezzanine Loan Documents is no longer continuing and on the date that Mezzanine Lender provides such Mezzanine Loan Default Revocation Notice to Mortgage Lender, any balance in the Mezzanine Account which would have been transferable to the “Mezzanine Account” under the Third Mezzanine Loan Agreement had the subject Mezzanine Loan Default Notice not been in effect shall be promptly transferred by Mezzanine Lender from the Mezzanine Account to the “Mezzanine Account” under the Third Mezzanine Loan Agreement.
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Station Casinos Inc)
Monthly Funding. (a) Mezzanine Borrower hereby instructs irrevocably authorizes Mezzanine Lender to transfer (and and, pursuant to the Mezzanine Account Agreement (Mezzanine) shall irrevocably authorize Cash Management Bank (Fourth Mezzanine) to execute any corresponding instructions of Mezzanine Lender), and Mezzanine Lender shall transfer (or cause Cash Management Bank to transfer pursuant to disbursement instructions from Mezzanine Lender) to the Mezzanine Debt Service Reserve Accounttransfer, from the Mezzanine Account by 11:00 am a.m. New York time on the first date on which each payment of funds on deposit in the Fourth Mezzanine Debt Service Reserve Account under the Loan Agreement (1stMortgage) calendar day of each calendar month (and if such day is not a Business Day then on made to the immediately preceding Business Day) Mezzanine Account, or as soon thereafter as there shall be sufficient collected funds are in the Mezzanine Account to make the applicable transfers, commencing on deposit in the date of the first transfer of funds from the Fourth Mezzanine Debt Service Reserve Account under the Loan Agreement (Mortgage) to the Mezzanine Account, and from time to time (but no less frequently than weekly thereafter) funds in an amount equal to the sum of any Protective Advances which may have been advanced by (and not previously reimbursed to) the Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents (Mezzanine) to cure any Default or Event of Default, any Mortgage Default or Mortgage Event of Default or any Senior Mezzanine Default or Senior Mezzanine Event of Default, or to protect the Collateral or the Senior Mezzanine Collateral together with any interest payable on such amounts pursuant to the Mezzanine Loan Documents (Mezzanine)Documents, plus (x) the unpaid Debt Service (Fourth Mezzanine) for the next occurring Payment Date, plus (y) an amount equal to such payments for any prior month(s), to the extent not previously paid, plus (z) an amount equal to the amount, if any, deducted from the Mezzanine Account in any preceding month to pay any other amounts then due under the Mezzanine Loan Documents (Mezzanine) (other than any Debt Service (Fourth Mezzanine)). Funds representing the sum of Protective Advances, payments for prior months to the extent not previously paid, and sums deducted from the Mezzanine Account in any preceding month to pay any other amounts then due under the Mezzanine Loan Documents (other than Debt Service (Fourth Mezzanine)) shall be transferred by Mezzanine Lender from the Mezzanine Account to Mezzanine Lender. Funds representing unpaid Debt Service (Fourth Mezzanine) for the next occurring Payment Date shall be transferred by Mezzanine Lender from the Mezzanine Account to the Mezzanine Debt Service Reserve Account, and on the next occurring Payment Date, Mezzanine Lender shall apply or direct Cash Management Bank (Fourth Mezzanine) to apply, the funds on deposit in the Mezzanine Debt Service Reserve Account for the payment of Debt Service (Fourth Mezzanine). Mezzanine Borrower acknowledges that Mezzanine Lender shall not be required to make such withdrawal and deposit until such time as Mezzanine Lender is able to calculate the amount of the Debt Service (Fourth Mezzanine) for the next occurring Payment Date. As used herein, the term “Net Excess Cash Flow” means the amount available Funds representing any balance in the Mezzanine Account after the foregoing transfers have been completed shall be transferred by Mezzanine Lender from the Mezzanine Account to an account designated by Mezzanine Borrower (the “Designated Account”) within one (1) Business Day after the foregoing transfers have been completed.
(b) If for any reason there will be insufficient amounts in the Mezzanine Debt Service Reserve Account on any Payment Date to pay the Debt Service (Fourth Mezzanine) due on such Payment Date, Mezzanine Borrower shall immediately deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Debt Service Reserve Account. Any failure by Mezzanine Borrower to deposit the full amount required under this by the preceding sentence shall constitute an Event of Default hereunder. If Mezzanine Lender shall reasonably determine that there will be insufficient amounts in the Mezzanine Account to pay any Protective Advances as and when the same are due and payable, Mezzanine Lender shall provide written notice of same to Mezzanine Borrower setting forth the basis for such determination. Within ten (10) Business Days of receipt of said notice, Mezzanine Borrower shall deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Account. Any failure by Mezzanine Borrower to deposit the full amount required by the preceding sentence within said ten (10) Business Day period shall constitute an Event of Default hereunder.
(c) Mezzanine Lender (so long as Mezzanine Lender is not the same entity as Mortgage Lender) agrees to deliver to Mortgage Lender a monthly notice letter (the Fourth Mezzanine Lender Monthly Debt Service Notice as described in the Loan Agreement (Mortgage)) at least five (5) Business Days prior to each Payment Date setting forth the Debt Service (Fourth Mezzanine) payable by Mezzanine Borrower on the first Payment Date occurring after the date such notice is delivered.
(d) Mezzanine Borrower hereby acknowledges that, pursuant to Section 3.1.6 have been made 3.1.7 of the Loan Agreement (Mortgage), to the extent Mortgage Lender has received a Mezzanine Loan Default Notice and until such time as Mortgage Lender receives a Mezzanine Loan Default Revocation Notice, the term “Net Mortgage Borrower has irrevocably directed that Excess Cash Flow Commencement Date” shall mean the date such amounts have been fully funded and any other payments to be made to Mezzanine Borrower, any Junior Mezzanine Borrower, Mezzanine Lender, or reserved within any Junior Mezzanine Lender are to be deposited directly into the Mezzanine Account for application as provided in this Agreement (in lieu of transferring such funds to such accounts of the Mezzanine Lender, any given calendar monthJunior Mezzanine Lender or Mortgage Borrower as the Mortgage Borrower may have so directed if the Mortgage Lender had not received such notice from Mezzanine Lender). Mezzanine Lender shall promptly provide Mortgage Lender with a Mezzanine Loan Default Revocation Notice if an Event of Default which has occurred under the Mezzanine Loan Documents is no longer continuing; and on the date that Mezzanine Lender provides such Mezzanine Loan Default Revocation Notice to Mortgage Lender, any balance in the Mezzanine Account which would have been transferable to the Designated Account pursuant to Section 3.1.6(a) had the subject Mezzanine Loan Default Notice not been in effect shall be promptly transferred by Mezzanine Lender from the Mezzanine Account to the Designated Account.
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Station Casinos Inc)
Monthly Funding. (a) Mezzanine Borrower hereby instructs irrevocably authorizes Mezzanine Lender to transfer (and pursuant to the Account Agreement (Second Mezzanine) shall irrevocably authorize Cash Management Bank (Second Mezzanine) to execute any corresponding instructions of Mezzanine Lender), and Mezzanine Lender shall transfer (or cause Cash Management Bank to transfer pursuant to disbursement instructions from Mezzanine Lender) to the Mezzanine Debt Service Reserve Account, from the Second Mezzanine Account by 11:00 am New York time on the first (1st) calendar day of each calendar month (and if such day is not a Business Day then on the immediately preceding Business Day) or as soon thereafter as there shall be sufficient collected funds on deposit in the Second Mezzanine Account, and from time to time (but no less frequently than weekly thereafter) funds in an amount equal to the sum of any Protective Advances which may have been advanced by (and not previously reimbursed to) the Mezzanine Lender pursuant to the terms of the Loan Documents (Second Mezzanine) to cure any Default or Event of Default, any Default or Event of Default under any Senior Mezzanine Loan, any Mortgage Default or Mortgage Event of Default, or to protect the Collateral together with any interest payable on such amounts pursuant to the Loan Documents (Second Mezzanine), plus (x) the unpaid Debt Service (Second Mezzanine) for the next occurring Payment Date, plus (y) an amount equal to such payments for any prior month(s), to the extent not previously paid, plus (z) an amount equal to the amount, if any, deducted from the Second Mezzanine Account in any preceding month to pay any other amounts then due under the Loan Documents (Second Mezzanine) (other than any Debt Service (Second Mezzanine)). Mezzanine Borrower acknowledges that Mezzanine Lender shall not be required to make such withdrawal and deposit until such time as Mezzanine Lender is able to calculate the amount of the Debt Service (Second Mezzanine) for the next occurring Payment Date. As used herein, the term “Net Excess Cash Flow” NET EXCESS CASH FLOW means the amount available in the Second Mezzanine Account after the transfers to the Mezzanine Debt Service Reserve Account required under this Section 3.1.6 3.1.5 have been made and the term “Net Excess Cash Flow Commencement Date” NET EXCESS CASH FLOW COMMENCEMENT DATE shall mean the date such amounts have been fully funded or reserved within the Second Mezzanine Account in any given calendar month.
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (CNL Hotels & Resorts, Inc.)
Monthly Funding. (a) Mezzanine Borrower hereby instructs Mezzanine Lender to transfer (and pursuant to the Account Agreement (Mezzanine) shall irrevocably authorize Cash Management Bank (Mezzanine) to execute any corresponding instructions of Mezzanine Lender), and Mezzanine Lender shall transfer (or cause Cash Management Bank to transfer pursuant to disbursement instructions from Mezzanine Lender) transfer, to the Mezzanine Loan Debt Service Reserve Account, Account from the Mezzanine Account by 11:00 am a.m. New York time on the first (1st) calendar day of each calendar month (and and, if such day is not a Business Day Day, then on the immediately preceding Business Day) ), or as soon thereafter as there shall be sufficient collected funds on deposit in the Mezzanine Account, and from time to time (but no less frequently than weekly thereafteri) funds in an amount equal to the sum of any Protective Advances which may have been advanced by (and not previously reimbursed to) the Mezzanine Lender pursuant to the terms of the Loan Documents (Mezzanine) to cure any Default or Event of Default, any Mortgage Default or Mortgage Event of Default, Default or to protect the Collateral (provided that Mezzanine Lender shall give Mezzanine Borrower reasonable advance notice of any Protective Advance intended to be advanced during a period in which an Event of Default has not occurred and is not continuing), together with any interest payable on such amounts pursuant to the Loan Documents (Mezzanine), plus ; (xii) funds in the amount of the unpaid Debt Service (Mezzanine) for the next occurring Payment Date, plus ; (yiii) funds in an amount equal to such payments for any prior month(s), to the extent not previously paid, plus ; and (ziv) funds in an amount equal to the amount, if any, deducted from the Mezzanine Account in any preceding month to pay any other amounts then due under the Loan Documents (Mezzanine) (other than any Debt Service (Mezzanine)). Mezzanine Borrower acknowledges that Mezzanine Lender shall not be required to make such withdrawal and deposit until such time as Mezzanine Lender is able to calculate the amount of the Debt Service (Mezzanine) for the next occurring Payment Date. As used herein, the term “Net Excess Cash Flow” Flow means the amount available in the Mezzanine Account after the transfers to the Mezzanine Debt Service Reserve Account required under this Section 3.1.6 have been made and the term “Net Excess Cash Flow Commencement Date” Date shall mean the date such amounts have been fully funded or reserved within the Mezzanine Account in any given calendar month.
(b) If for any reason there will be insufficient amounts in the Mezzanine Debt Service Reserve Account on any Payment Date to pay the Debt Service (Mezzanine) due on such Payment Date, Mezzanine Borrower shall immediately deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Debt Service Reserve Account. Any failure by Mezzanine Borrower to deposit the full amount required by the preceding sentence shall constitute an Event of Default hereunder. If Mezzanine Lender shall reasonably determine that there will be insufficient amounts in the Mezzanine Account to pay any Protective Advances as and when the same are due and payable, Mezzanine Lender shall provide written notice of same to Mezzanine Borrower setting forth the basis for such determination. Within five (5) Business Days of receipt of said notice and prior to the expiration of any grace period applicable to such payment, Mezzanine Borrower shall deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Account, taking into account any funds which accumulate in the Mezzanine Account during such five (5) Business Day period. Any failure by Mezzanine Borrower to deposit the full amount required by the preceding sentence within said five (5) Business Day period shall constitute an Event of Default hereunder. Notwithstanding anything to the contrary contained in this Agreement or in the other Loan Documents (Mezzanine), Mezzanine Borrower shall not be deemed to be in default hereunder or thereunder in the event funds sufficient for a required transfer are held in an appropriate Sub-Account, and Mezzanine Lender or Cash Management Bank fails to timely make any transfer from such Sub-Account as contemplated by this Agreement unless due to the gross negligence or willful misconduct of Mezzanine Borrower.
(c) Provided that (i) no Event of Default shall have occurred and be continuing hereunder or under any of the other Loan Documents (Mezzanine), (ii) no Mortgage Event of Default shall have occurred and be continuing, and (iii) Mezzanine Borrower shall have deposited into the Mezzanine Account all funds then required to have been so deposited, then Mezzanine Lender shall transfer the Net Excess Cash Flow from the Mezzanine Account to the Mezzanine Borrower Account within two (2) Business Days following the Net Excess Cash Flow Commencement Date for each month and on a daily basis thereafter until the end of the applicable collection period. Mezzanine Borrower shall, upon request by Mezzanine Lender prior to transferring such Net Excess Cash Flow, cause Mortgage Borrower to provide Mezzanine Lender with evidence reasonably satisfactory to Mezzanine Lender that Mortgage Borrower has paid all Operating Expenses for the month immediately preceding the month in which such Net Excess Cash Flow is requested by Mezzanine Lender. From and after the transfer of such Net Excess Cash Flow to Mezzanine Borrower, Mezzanine Lender shall have no further liability or responsibility with respect to the funds so transferred or the investment thereof, such Net Excess Cash Flow shall be the property of Mezzanine Borrower and may be further distributed by Mezzanine Borrower and its Affiliates in accordance with their separate agreements.
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Digital Realty Trust, Inc.)
Monthly Funding. (a) Mezzanine Borrower hereby instructs irrevocably authorizes Mezzanine Lender to transfer (and pursuant to the Mezzanine Account Agreement (Mezzanine) shall irrevocably authorize Cash Management Bank (Fourth Mezzanine) to execute any corresponding instructions of Mezzanine Lender), and Mezzanine Lender shall transfer (or cause Cash Management Bank to transfer pursuant to disbursement instructions from Mezzanine Lender) to the Mezzanine Debt Service Reserve Account, from the Mezzanine Account by 11:00 am a.m. New York time on the first (1st) calendar day date on which each payment of each calendar month (and if such day Master Lease Rent under the Master Lease is not a Business Day then on made to the immediately preceding Business Day) Holding Account, or as soon thereafter as there shall be sufficient collected funds on deposit in the Mezzanine Account, and from time to time (but no less frequently than weekly thereafter) funds in an amount equal to the sum of any Protective Advances which may have been advanced by (and not previously reimbursed to) the Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents (Mezzanine) to cure any Default or Event of Default, any Mortgage Default or Mortgage Event of Default, or to protect the Collateral together with any interest payable on such amounts pursuant to the Mezzanine Loan Documents (Mezzanine)Documents, plus (x) the unpaid Debt Service (Fourth Mezzanine) for the next occurring Payment Date, plus (y) an amount equal to such payments for any prior month(s), to the extent not previously paid, plus (z) an amount equal to the amount, if any, deducted from the Mezzanine Account in any preceding month to pay any other amounts then due under the Mezzanine Loan Documents (Mezzanine) (other than any Debt Service (Fourth Mezzanine)). Mezzanine Borrower acknowledges that Mezzanine Lender shall not be required to make such withdrawal and deposit until such time as Mezzanine Lender is able to calculate the amount of the Debt Service (Fourth Mezzanine) for the next occurring Payment Date. As used herein, the term “Net Excess Cash Flow” means the amount available .
(b) If for any reason there will be insufficient amounts in the Mezzanine Account after the transfers to the Mezzanine Debt Service Reserve Account on any Payment Date to pay the Debt Service (Fourth Mezzanine) due on such Payment Date, Mezzanine Borrower shall immediately deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Debt Service Reserve Account. Any failure by Mezzanine Borrower to deposit the full amount required under this by the preceding sentence shall constitute an Event of Default hereunder. If Mezzanine Lender shall reasonably determine that there will be insufficient amounts in the Mezzanine Account to pay any Protective Advances as and when the same are due and payable, Mezzanine Lender shall provide written notice of same to Mezzanine Borrower setting forth the basis for such determination. Within five (5) Business Days of receipt of said notice, Mezzanine Borrower shall deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Account. Any failure by Mezzanine Borrower to deposit the full amount required by the preceding sentence within said five (5) Business Day period shall constitute an Event of Default hereunder.
(c) Mezzanine Lender agrees to deliver to Mortgage Lender a monthly notice letter (the Mezzanine Lender Monthly Debt Service Notice) at least five (5) Business Days prior to each Payment Date setting forth the Debt Service (Fourth Mezzanine) payable by Mezzanine Borrower on the first Payment Date occurring after the date such notice is delivered.
(d) Mezzanine Borrower hereby acknowledges that, pursuant to Section 3.1.6 have been made of the Loan Agreement (Mortgage), (i) to the extent Mortgage Lender has received a Senior Mezzanine Loan Default Notice and until such time as Mortgage Lender receives a Senior Mezzanine Loan Default Revocation Notice, the term “Net Mortgage Borrower and each Senior Mezzanine Borrower has irrevocably directed that Excess Cash Flow Commencement Date” shall mean and any other payments to be made to Mezzanine Borrower, or Mezzanine Lender are to be deposited directly into the date such amounts have been fully funded or reserved within Senior Mezzanine Account for application as provided in such Senior Mezzanine Loan Agreement (in lieu of transferring such funds to such accounts of the Mezzanine Account in Lender or Mortgage Borrower as the Mortgage Borrower may have so directed if the Mortgage Lender had not received such notice from Senior Mezzanine Lender). Notwithstanding any given calendar monthprovision herein to the contrary, provided no Event of Default has occurred or is continuing, there shall be disbursed to Mezzanine Borrower the Proceeds of a Condemnation or Casualty remaining after payment of all amounts to which Mortgage Lender and any Senior Mezzanine Lender are entitled. Mezzanine Borrower agrees that Mezzanine Lender shall not be required to deliver to Mortgage Lender a Mezzanine Loan Default Notice prior to the deposit of Proceeds into the Mezzanine Account.
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Toys R Us Inc)
Monthly Funding. (a) Mezzanine Borrower hereby instructs Mezzanine Lender to transfer (and pursuant to the Account Agreement (Senior Mezzanine) shall irrevocably authorize Cash Management Bank (Senior Mezzanine) to execute any corresponding instructions of Mezzanine Lender), and Mezzanine Lender shall transfer (or cause Cash Management Bank to transfer pursuant to disbursement instructions from Mezzanine Lender) to the Mezzanine Debt Service Reserve Account, from the Senior Mezzanine Account by 11:00 am New York time on the first (1st) calendar day of each calendar month (and if such day is not a Business Day then on the immediately preceding Business Day) or as soon thereafter as there shall be sufficient collected funds on deposit in the Senior Mezzanine Account, and from time to time (but no less frequently than weekly thereafter) funds in an amount equal to the sum of any Protective Advances which may have been advanced by (and not previously reimbursed to) the Mezzanine Lender pursuant to the terms of the Loan Documents (Senior Mezzanine) to cure any Default or Event of Default, any Mortgage Default or Mortgage Event of Default, or to protect the Collateral together with any interest payable on such amounts pursuant to the Loan Documents (Senior Mezzanine), plus (x) the unpaid Debt Service (Senior Mezzanine) for the next occurring Payment Date, plus (y) an amount equal to such payments for any prior month(s), to the extent not previously paid, plus (z) an amount equal to the amount, if any, deducted from the Senior Mezzanine Account in any preceding month to pay any other amounts then due under the Loan Documents (Senior Mezzanine) (other than any Debt Service (Senior Mezzanine)). Mezzanine Borrower acknowledges that Mezzanine Lender shall not be required to make such withdrawal and deposit until such time as Mezzanine Lender is able to calculate the amount of the Debt Service (Senior Mezzanine) for the next occurring Payment Date. As used herein, the term “Net Excess Cash Flow” Flow means the amount available in the Senior Mezzanine Account after the transfers to the Mezzanine Debt Service Reserve Account required under this Section 3.1.6 have been made and the term “Net Excess Cash Flow Commencement Date” Date shall mean the date such amounts have been fully funded or reserved within the Senior Mezzanine Account in any given calendar month.
(b) If for any reason there will be insufficient amounts in the Mezzanine Debt Service Reserve Account on any Payment Date to pay the Debt Service (Senior Mezzanine) due on such Payment Date, Mezzanine Borrower shall immediately deposit into the Senior Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Debt Service Reserve Account. Any failure by Mezzanine Borrower to deposit the full amount required by the preceding sentence shall constitute an Event of Default hereunder. If Mezzanine Lender shall reasonably determine that there will be insufficient amounts in the Senior Mezzanine Account to pay any Protective Advances as and when the same are due and payable, Mezzanine Lender shall provide written notice of same to Mezzanine Borrower setting forth the basis for such determination. Within five (5) Business Days of receipt of said notice, Mezzanine Borrower shall deposit into the Senior Mezzanine Account an amount equal to the shortfall of available funds in the Senior Mezzanine Account. Any failure by Mezzanine Borrower to deposit the full amount required by the preceding sentence within said five (5) Business Day period shall constitute an Event of Default hereunder.
(c) Provided that (i) no Event of Default shall have occurred and be continuing hereunder or under any of the other Loan Documents (Senior Mezzanine), (ii) no Mortgage Event of Default shall have occurred and be continuing, (iii) Mezzanine Borrower shall have delivered to Mezzanine Lender an Officer's Certificate (which Mezzanine Borrower shall not be obligated to deliver more frequently than once per calendar month) certifying that the signatories know of no Event of Default or Mortgage Event of Default (as applicable) that has occurred and is then outstanding hereunder or under any of the other Loan Documents (Senior Mezzanine) or under any of the Loan Documents (Mortgage), and (iv) Mezzanine Borrower shall have deposited into the Senior Mezzanine Account all funds then required to have been so deposited, then Mezzanine Lender shall transfer the Net Excess Cash Flow from the Senior Mezzanine Account to (A) the Intermediate Mezzanine Account, or (B) following the repayment of the Intermediate Mezzanine Loan, to the Junior Mezzanine Account, or (C) following the repayment of the Intermediate Mezzanine Loan and the Junior Mezzanine Loan, to the Mezzanine Borrower's Account.
(d) In the event that an Event of Default shall have occurred and is then continuing, then, without notice from Mezzanine Lender, all Net Excess Cash Flow shall be applied to reduce the outstanding Principal Amount of the Mezzanine Note. At such time that the Event of Default shall no longer be continuing and provided no other Event of Default shall have occurred and be continuing under the Mortgage Loan or Mezzanine Loan, then all Net Excess Cash Flow shall be distributed in accordance with the provision of subsection (c) above.
(e) Mezzanine Lender (so long as Mezzanine Lender is not the same entity as Mortgage Lender) agrees to deliver to Mortgage Lender a monthly notice letter (the Mezzanine Lender Monthly Debt Service Notice Letter) at least five (5) Business Days prior to each Payment Date setting forth the Debt Service (Senior Mezzanine) payable by Mezzanine Borrower on the first Payment Date occurring after the date such notice is delivered.
(f) Mezzanine Borrower hereby acknowledges that, pursuant to Section 3.1.5 of the Loan Agreement (Mortgage), (i) to the extent the Mortgage Lender has received notice from Mezzanine Lender that an Event of Default has occurred and is continuing under the Loan Documents (Mezzanine) (a Mezzanine Loan Default Notice) and until such time as Mortgage Lender receives a notice from Mezzanine Lender that such Event of Default is no longer continuing (a Mezzanine Loan Default Revocation Notice), the Mortgage Borrower has irrevocably directed that Excess Cash Flow is to be deposited directly into the Mezzanine Account for application as provided in this Agreement (in lieu of transferring such funds to such accounts of the Mortgage Borrower as the Mortgage Borrower may have so directed if the Mortgage Lender had not received such notice from Mezzanine Lender), (ii) to the extent Mortgage Lender has not received a Mezzanine Loan default notice but has received an Intermediate Mezzanine Loan Default Notice and until such time as Mortgage Lender receives an Intermediate Mezzanine Loan Default Revocation Notice, Mortgage Borrower irrevocably directed that all Excess Cash Flow be deposited directly into the Intermediate Mezzanine Account for application as provided in the Intermediate Mezzanine Loan Agreement (in lieu of transferring such funds to such accounts of Mortgage Borrower as Mortgage Borrower may have so directed if Mortgage Lender had not received such notice from Intermediate Mezzanine Lender), (iii) to the extent Mortgage Lender has not received a Mezzanine Loan default notice but has received an Junior Mezzanine Loan Default Notice and until such time as Mortgage Lender receives an Junior Mezzanine Loan Default Revocation
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (CNL Hotels & Resorts, Inc.)
Monthly Funding. (a) Mezzanine Borrower hereby instructs irrevocably authorizes Mezzanine Lender to transfer (and pursuant to the Account Agreement (First Mezzanine) shall irrevocably authorize Cash Management Bank (First Mezzanine) to execute any corresponding instructions of Mezzanine Lender), and Mezzanine Lender shall transfer (or cause Cash Management Bank to transfer pursuant to disbursement instructions from Mezzanine Lender) to the Mezzanine Debt Service Reserve Account, from the First Mezzanine Account by 11:00 am New York time on the first (1st) calendar day of each calendar month (and if such day is not a Business Day then on the immediately preceding Business Day) or as soon thereafter as there shall be sufficient collected funds on deposit in the First Mezzanine Account, and from time to time (but no less frequently than weekly thereafter) funds in an amount equal to the sum of any Protective Advances which may have been advanced by (and not previously reimbursed to) the Mezzanine Lender pursuant to the terms of the Loan Documents (First Mezzanine) to cure any Default or Event of Default, any Mortgage Default or Mortgage Event of Default, or to protect the Collateral together with any interest payable on such amounts pursuant to the Loan Documents (First Mezzanine), plus (x) the unpaid Debt Service (First Mezzanine) for the next occurring Payment Date, plus (y) an amount equal to such payments for any prior month(s), to the extent not previously paid, plus (z) an amount equal to the amount, if any, deducted from the First Mezzanine Account in any preceding month to pay any other amounts then due under the Loan Documents (First Mezzanine) (other than any Debt Service (First Mezzanine)). Mezzanine Borrower acknowledges that Mezzanine Lender shall not be required to make such withdrawal and deposit until such time as Mezzanine Lender is able to calculate the amount of the Debt Service (First Mezzanine) for the next occurring Payment Date. As used herein, the term “Net Excess Cash Flow” NET EXCESS CASH FLOW means the amount available in the First Mezzanine Account after the transfers to the Mezzanine Debt Service Reserve Account required under this Section 3.1.6 3.1.5 have been made and the term “Net Excess Cash Flow Commencement Date” NET EXCESS CASH FLOW COMMENCEMENT DATE shall mean the date such amounts have been fully funded or reserved within the First Mezzanine Account in any given calendar month.
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (CNL Hotels & Resorts, Inc.)
Monthly Funding. (a) Mezzanine Borrower hereby instructs irrevocably authorizes Mezzanine Lender to transfer (and and, pursuant to the Account Agreement (Mezzanine) shall irrevocably authorize Cash Management Bank (Mezzanine) to execute any corresponding instructions of Mezzanine Lender), and Mezzanine Lender shall transfer (or cause Cash Management Bank to transfer pursuant to disbursement instructions from Mezzanine Lender) to the Mezzanine Debt Service Reserve Accounttransfer, from the Mezzanine Account by 11:00 am a.m. New York time commencing on the first tenth (1st10th) calendar day of each calendar month (and if such day is not a Business Day then on the immediately preceding Business Day) and on each Business Day thereafter until the ninth (9th) calendar day of the next succeeding calendar month (or, if such day is not a Business Day, then the immediately preceding Business Day), or as soon thereafter as there shall be sufficient collected funds on deposit in the Mezzanine Account, and from time to time (but no less frequently than weekly thereafter) funds in an amount equal to the sum of any Protective Advances which may have been advanced by (and not previously reimbursed to) the Mezzanine Lender pursuant to the terms of the Loan Documents (Mezzanine) to cure any Default or Event of Default, any Mortgage Default or Mortgage Event of Default, or to protect the Collateral together with any interest payable on such amounts pursuant to the Loan Documents (Mezzanine), plus (x) the unpaid Debt Service (Mezzanine) for the next occurring Payment Date, plus (y) an amount equal to such payments for any prior month(s), to the extent not previously paid, plus (z) an amount equal to the amount, if any, deducted from the Mezzanine Account in any preceding month amount sufficient to pay any other amounts then due under the Loan Documents (Mezzanine) (other than any Debt Service (Mezzanine)). Mezzanine Borrower acknowledges that Mezzanine Lender shall not be required to make such withdrawal and deposit until such time as Mezzanine Lender is able to calculate the amount of the Debt Service (Mezzanine) for the next occurring Payment Date. As used herein, the term “Net Excess Cash Flow” NET EXCESS CASH FLOW means the amount available in the Mezzanine Account after the transfers to the Mezzanine Debt Service Reserve Account required under this Section 3.1.6 have been made and the term “Net Excess Cash Flow Commencement Date” NET EXCESS CASH FLOW COMMENCEMENT DATE shall mean the date such amounts have been fully funded or reserved within the Mezzanine Account in any given calendar month.
(b) If for any reason there will be insufficient amounts in the Mezzanine Debt Service Reserve Account on any Payment Date to pay the Debt Service (Mezzanine) due on such Payment Date, Mezzanine Borrower shall immediately deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Debt Service Reserve Account. Any failure by Mezzanine Borrower to deposit the full amount required by the preceding sentence shall constitute an Event of Default hereunder. If Mezzanine Lender shall reasonably determine that there will be insufficient amounts in the Mezzanine Account to pay any Protective Advances as and when the same are due and payable, Mezzanine Lender shall provide written notice of same to Mezzanine Borrower setting forth the basis for such determination. Within five (5) Business Days of receipt of said notice, Mezzanine Borrower shall deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Account. Any failure by Mezzanine Borrower to deposit the full amount required by the preceding sentence shall constitute an Event of Default hereunder. Notwithstanding anything to the contrary contained in this Agreement or in the other Loan Documents, Mezzanine Borrower shall not be deemed to be in default hereunder or thereunder in the event funds sufficient for a required transfer are held in the Mezzanine Account or an appropriate Sub-Account and Mezzanine Lender or Cash Management Bank fails to timely make any transfer as contemplated by this Agreement.
(c) Provided that (i) no Event of Default shall have occurred and be continuing hereunder or under any of the other Loan Documents (Mezzanine), (ii) no Mortgage Event of Default shall have occurred and be continuing, (iii) Mezzanine Borrower shall have delivered to Mezzanine Lender an Officer's Certificate (in substantially the form annexed hereto as EXHIBIT I) (which Mezzanine Borrower shall not be obligated to deliver more frequently than once per calendar month) certifying that the signatories know of no Event of Default or Mortgage Event of Default (as applicable) that has occurred and is then outstanding hereunder or under any of the other Loan Documents (Mezzanine) or under any of the Loan Documents (Mortgage), and (iv) Mezzanine Borrower shall have deposited into the Mezzanine Account all funds then required to have been so deposited, then Mezzanine Lender shall transfer the Net Excess Cash Flow from the Mezzanine Account to Mezzanine Borrower's Account within two (2) Business Days following the Net Excess Cash Flow Commencement Date for each month and on a daily basis thereafter until the end of the applicable collection period. Mezzanine Borrower shall, all funds then required to have been so deposited, then Mezzanine Lender shall transfer the Net Excess Cash Flow from the Mezzanine Account to Mezzanine Borrower's Account within two (2) Business Days following the Net Excess Cash Flow Commencement Date for each month and on a daily basis thereafter until the end of the applicable collection period. Mezzanine Borrower shall, upon request by Mezzanine Lender prior to transferring such Net Excess Cash Flow, cause the Mortgage Borrower to provide Mezzanine Lender with evidence reasonably satisfactory to Mezzanine Lender that Mortgage Borrower has paid all Operating Expenses for the month immediately preceding the month in which such request is made by Mezzanine Lender. From and after the transfer of such Net Excess Cash Flow to Mezzanine Borrower, Mezzanine Lender shall have no further liability or responsibility with respect to the funds so transferred or the investment thereof, such Net Excess Cash Flow shall be the property of Mezzanine Borrower and may be further distributed by Mezzanine Borrower and its Affiliates in accordance with their separate agreements.
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Maguire Properties Inc)
Monthly Funding. (a) Mezzanine Borrower hereby instructs irrevocably authorizes Mezzanine Lender to transfer (and pursuant to the Account Agreement (Fourth Mezzanine) shall irrevocably authorize Cash Management Bank (Fourth Mezzanine) to execute any corresponding instructions of Mezzanine Lender), and Mezzanine Lender shall transfer (or cause Cash Management Bank (Fourth Mezzanine) to transfer pursuant to disbursement instructions from Mezzanine Lender) to the Mezzanine Debt Service Reserve Account, from the Fourth Mezzanine Account by 11:00 am New York time on the first (1st) calendar day of each calendar month (and if such day is not a Business Day then on the immediately preceding Business Day) or as soon thereafter as there shall be sufficient collected funds on deposit in the Fourth Mezzanine Account, and from time to time (but no less frequently than weekly thereafter) funds in an amount equal to the sum of any Protective Advances which may have been advanced by (and not previously reimbursed to) the Mezzanine Lender pursuant to the terms of the Loan Documents (Fourth Mezzanine) to cure any Default or Event of Default, any Default or Event of Default under any Senior Mezzanine Loan, any Mortgage Default or Mortgage Event of Default, or to protect the Collateral together with any interest payable on such amounts pursuant to the Loan Documents (Fourth Mezzanine), plus (x) the unpaid Debt Service (Fourth Mezzanine) for the next occurring Payment Date, plus (y) an amount equal to such payments for any prior month(s), to the extent not previously paid, plus (z) an amount equal to the amount, if any, deducted from the Fourth Mezzanine Account in any preceding month to pay any other amounts then due under the Loan Documents (Fourth Mezzanine) (other than any Debt Service (Fourth Mezzanine)). Mezzanine Borrower acknowledges that Mezzanine Lender shall not be required to make such withdrawal and deposit until such time as Mezzanine Lender is able to calculate the amount of the Debt Service (Fourth Mezzanine) for the next occurring Payment Date. As used herein, the term “Net Excess Cash Flow” NET EXCESS CASH FLOW means the amount available in the Fourth Mezzanine Account after the transfers to the Mezzanine Debt Service Reserve Account required under this Section 3.1.6 3.1.5 have been made and the term “Net Excess Cash Flow Commencement Date” NET EXCESS CASH FLOW COMMENCEMENT DATE shall mean the date such amounts have been fully funded or reserved within the Fourth Mezzanine Account in any given calendar month.
(b) If for any reason there will be insufficient amounts in the Mezzanine Debt Service Reserve Account on any Payment Date to pay the Debt Service (Fourth Mezzanine) due on such Payment Date, Mezzanine Borrower shall immediately deposit into the Fourth Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Debt Service Reserve Account. Any failure by Mezzanine Borrower to deposit the full amount required by the preceding sentence shall constitute an Event of Default hereunder. If Mezzanine Lender shall reasonably determine that there will be insufficient amounts in the Fourth Mezzanine Account to pay any Protective Advances as and when the same are due and payable, Mezzanine Lender shall provide written notice of same to Mezzanine Borrower setting forth the basis for such determination. Within five (5) Business Days of receipt of said notice, Mezzanine Borrower shall deposit into the Fourth Mezzanine Account an amount equal to the shortfall of available funds in the Fourth Mezzanine Account. Any failure by Mezzanine Borrower to deposit the full amount required by the preceding sentence within said five (5) Business Day period shall constitute an Event of Default hereunder.
(c) Provided that (i) no Event of Default shall have occurred and be continuing hereunder or under any of the other Loan Documents (Fourth Mezzanine), (ii) no Mortgage Event of Default shall have occurred and be continuing, (iii) no Senior Mezzanine Event of Default shall have occurred and be continuing, (iv) Mezzanine Borrower shall have delivered to Mezzanine Lender an Officer's Certificate (which Mezzanine Borrower shall not be obligated to deliver more frequently than once per calendar month) certifying that the signatories know of no Event of Default, Mortgage Event of Default or Senior Mezzanine Event of Default (as applicable) that has occurred and is then outstanding hereunder or under any of the other Loan Documents (Fourth Mezzanine), Senior Mezzanine Loan Documents, or under any of the Loan Documents (Mortgage), and (v) Mezzanine Borrower shall have deposited into the Fourth Mezzanine Account all funds then required to have been so deposited, then Mezzanine Lender shall transfer the Net Excess Cash Flow from the Fourth Mezzanine Account to (A) the Fourth Mezzanine Account, or (B) following the repayment of the Fourth Mezzanine Loan, provided that Fifth Mezzanine Lender shall have funded the Fifth Mezzanine Loan on or before the Outside Date, to the Fifth Mezzanine Account, or (C) following the repayment of the Fourth Mezzanine Loan and the Fifth Mezzanine Loan, to the Mezzanine Borrower's Account.
(d) In the event that an Event of Default shall have occurred and is then continuing, then, without notice from Mezzanine Lender, all Net Excess Cash Flow shall be applied to reduce the outstanding Principal Amount of the Mezzanine Note. At such time that the Event of Default shall no longer be continuing and provided no other Event of Default shall have occurred and be continuing under the Mortgage Loan, any Senior Mezzanine Loan, or Mezzanine Loan, then all Net Excess Cash Flow shall be distributed in accordance with the provision of subsection (c) above.
(e) Mezzanine Lender (so long as Mezzanine Lender is not the same entity as Mortgage Lender) agrees to deliver to Mortgage Lender a monthly notice letter (the MEZZANINE LENDER MONTHLY DEBT SERVICE NOTICE LETTER) at least five (5) Business Days prior to each Payment Date setting forth the Debt Service (Fourth Mezzanine) payable by Mezzanine Borrower on the first Payment Date occurring after the date such notice is delivered.
(f) Mezzanine Borrower hereby acknowledges that, pursuant to Section 3.1.5 of the Third Mezzanine Loan Agreement, (i) to the extent the Third Mezzanine Lender has received notice from Mezzanine Lender that an Event of Default has occurred and is continuing under the Loan Documents (Fourth Mezzanine) (a MEZZANINE LOAN DEFAULT NOTICE) and until such time as Third Mezzanine Lender receives a notice from Mezzanine Lender that such Event of Default is no longer continuing (a MEZZANINE LOAN DEFAULT REVOCATION NOTICE), the Third Mezzanine Borrower has irrevocably directed that Excess Cash Flow is to be deposited directly into the Fourth Mezzanine Account for application as provided in this Agreement (in lieu of transferring such funds to such accounts of the Junior Mezzanine Borrowers or Third Mezzanine Borrower as the Third Mezzanine Borrower may have so directed if the Third Mezzanine Lender had not received such notice from Mezzanine Lender), (ii) provided that Fifth Mezzanine Lender shall have funded the Fifth Mezzanine Loan on or before the Outside Date, to the extent Third Mezzanine Lender has not received a Mezzanine Loan default notice but has received a Fifth Mezzanine Loan Default Notice and until such time as Third Mezzanine Lender receives a Fifth Mezzanine Loan Default Revocation Notice, Third Mezzanine Borrower irrevocably directs that all Excess Cash Flow be deposited directly into the Fifth Mezzanine Account for application as provided in the Fifth Mezzanine Loan Agreement (in lieu of transferring such funds to such accounts of Third Mezzanine Borrower as Third Mezzanine Borrower may have so directed if Third Mezzanine Lender had not received such notice from Fifth Mezzanine Lender) and (iii) the directions described in the preceding clauses (i) or (ii) shall not be changed or terminated without the written consent of the Mezzanine Lender. Notwithstanding any provision herein to the contrary, provided no Event of Default has occurred or is continuing, there shall be disbursed to Mezzanine Borrower the Proceeds of a Condemnation or Casualty remaining after payment of all amounts to which Mortgage Lender, each Senior Mezzanine Lender, Mezzanine Lender and Junior Mezzanine Lender are entitled. Mezzanine Borrower agrees that Mezzanine Lender shall not be required to deliver to Third Mezzanine Lender a Mezzanine Loan Default Notice prior to the deposit of Proceeds into the Mezzanine Account.
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (CNL Hotels & Resorts, Inc.)
Monthly Funding. (a) Mezzanine Borrower hereby instructs irrevocably authorizes Mezzanine Lender to transfer (and and, pursuant to the Mezzanine Account Agreement (Mezzanine) shall irrevocably authorize Cash Management Bank (First Mezzanine) to execute any corresponding instructions of Mezzanine Lender), and Mezzanine Lender shall transfer (or cause Cash Management Bank to transfer pursuant to disbursement instructions from Mezzanine Lender) to the Mezzanine Debt Service Reserve Accounttransfer, from the Mezzanine Account by 11:00 am a.m. New York time on the first date on which each payment of funds on deposit in the First Mezzanine Debt Service Reserve Account under the Loan Agreement (1stMortgage) calendar day of each calendar month (and if such day is not a Business Day then on made to the immediately preceding Business Day) Mezzanine Account, or as soon thereafter as there shall be sufficient collected funds are in the Mezzanine Account to make the applicable transfers, commencing on deposit in the date of the first transfer of funds from the First Mezzanine Debt Service Reserve Account under the Loan Agreement (Mortgage) to the Mezzanine Account, and from time to time (but no less frequently than weekly thereafter) funds in an amount equal to the sum of any Protective Advances which may have been advanced by (and not previously reimbursed to) the Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents (Mezzanine) to cure any Default or Event of Default, any Mortgage Default or Mortgage Event of Default, or to protect the Collateral together with any interest payable on such amounts pursuant to the Mezzanine Loan Documents (Mezzanine)Documents, plus (x) the unpaid Debt Service (First Mezzanine) for the next occurring Payment Date, plus (y) an amount equal to such payments for any prior month(s), to the extent not previously paid, plus (z) an amount equal to the amount, if any, deducted from the Mezzanine Account in any preceding month to pay any other amounts then due under the Mezzanine Loan Documents (Mezzanine) (other than any Debt Service (First Mezzanine)). Mezzanine Borrower acknowledges that Mezzanine Lender shall not be required to make such withdrawal and deposit until such time as Mezzanine Lender is able to calculate the amount of the Debt Service (First Mezzanine) for the next occurring Payment Date. As used herein, the term “Net Excess Cash Flow” means the amount available .
(b) If for any reason there will be insufficient amounts in the Mezzanine Account after the transfers to the Mezzanine Debt Service Reserve Account on any Payment Date to pay the Debt Service (First Mezzanine) due on such Payment Date, Mezzanine Borrower shall immediately deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Debt Service Reserve Account. Any failure by Mezzanine Borrower to deposit the full amount required under this by the preceding sentence shall constitute an Event of Default hereunder. If Mezzanine Lender shall reasonably determine that there will be insufficient amounts in the Mezzanine Account to pay any Protective Advances as and when the same are due and payable, Mezzanine Lender shall provide written notice of same to Mezzanine Borrower setting forth the basis for such determination. Within ten (10) Business Days of receipt of said notice, Mezzanine Borrower shall deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Account. Any failure by Mezzanine Borrower to deposit the full amount required by the preceding sentence within said ten (10) Business Day period shall constitute an Event of Default hereunder.
(c) Mezzanine Lender (so long as Mezzanine Lender is not the same entity as Mortgage Lender) agrees to deliver to Mortgage Lender a monthly notice letter (the First Mezzanine Lender Monthly Debt Service Notice as described in the Loan Agreement (Mortgage)) at least five (5) Business Days prior to each Payment Date setting forth the Debt Service (First Mezzanine) payable by Mezzanine Borrower on the first Payment Date occurring after the date such notice is delivered.
(d) Mezzanine Borrower hereby acknowledges that, pursuant to Section 3.1.6 have been made of the Loan Agreement (Mortgage), to the extent Mortgage Lender has received a Mezzanine Loan Default Notice and until such time as Mortgage Lender receives a Mezzanine Loan Default Revocation Notice, the term “Net Mortgage Borrower has irrevocably directed that Excess Cash Flow Commencement Date” shall mean the date such amounts have been fully funded and any other payments to be made to Mezzanine Borrower, any Junior Mezzanine Borrower, Mezzanine Lender, or reserved within any Junior Mezzanine Lender are to be deposited directly into the Mezzanine Account for application as provided in this Agreement (in lieu of transferring such funds to such accounts of the Mezzanine Lender, any given calendar monthJunior Mezzanine Lender or Mortgage Borrower as the Mortgage Borrower may have so directed if the Mortgage Lender had not received such notice from Mezzanine Lender). Mezzanine Lender shall promptly provide Mortgage Lender with a Mezzanine Loan Default Revocation Notice if an Event of Default which has occurred under the Mezzanine Loan Documents is no longer continuing.
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Station Casinos Inc)
Monthly Funding. (a) Mezzanine Borrower hereby instructs irrevocably authorizes Mezzanine Lender to transfer (and pursuant to the Mezzanine Account Agreement (Mezzanine) shall irrevocably authorize Cash Management Bank (Fourth Mezzanine) to execute any corresponding instructions of Mezzanine Lender), and Mezzanine Lender shall transfer (or cause Cash Management Bank to transfer pursuant to disbursement instructions from Mezzanine Lender) to the Mezzanine Debt Service Reserve Account, from the Mezzanine Account by 11:00 am a.m. New York time on the first (1st) calendar day date on which each payment of each calendar month (and if such day Master Lease Rent under the Master Lease is not a Business Day then on made to the immediately preceding Business Day) Holding Account, or as soon thereafter as there shall be sufficient collected funds on deposit in the Mezzanine Account, and from time to time (but no less frequently than weekly thereafter) funds in an amount equal to the sum of any Protective Advances which may have been advanced by (and not previously reimbursed to) the Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents (Mezzanine) to cure any Default or Event of Default, any Mortgage Default or Mortgage Event of Default, or to protect the Collateral together with any interest payable on such amounts pursuant to the Mezzanine Loan Documents (Mezzanine)Documents, plus (x) the unpaid Debt Service (Fourth Mezzanine) for the next occurring Payment Date, plus (y) an amount equal to such payments for any prior month(s), to the extent not previously paid, plus (z) an amount equal to the amount, if any, deducted from the Mezzanine Account in any preceding month to pay any other amounts then due under the Mezzanine Loan Documents (Mezzanine) (other than any Debt Service (Fourth Mezzanine)). Mezzanine Borrower acknowledges that Mezzanine Lender shall not be required to make such withdrawal and deposit until such time as Mezzanine Lender is able to calculate the amount of the Debt Service (Fourth Mezzanine) for the next occurring Payment Date. As used herein, the term “Net Excess Cash Flow” means the amount available .
(b) If for any reason there will be insufficient amounts in the Mezzanine Account after the transfers to the Mezzanine Debt Service Reserve Account on any Payment Date to pay the Debt Service (Fourth Mezzanine) due on such Payment Date, Mezzanine Borrower shall immediately deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Debt Service Reserve Account. Any failure by Mezzanine Borrower to deposit the full amount required under this Section 3.1.6 have been made by the preceding sentence shall constitute an Event of Default hereunder. If Mezzanine Lender shall reasonably determine that there will be insufficient amounts in the Mezzanine Account to pay any Protective Advances as and when the term “Net Excess Cash Flow Commencement Date” same are due and payable, Mezzanine Lender shall mean provide written notice of same to Mezzanine Borrower setting forth the basis for such determination. Within five (5) Business Days of receipt of said notice, Mezzanine Borrower shall deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Account. Any failure by Mezzanine Borrower to deposit the full amount required by the preceding sentence within said five (5) Business Day period shall constitute an Event of Default hereunder.
(c) Mezzanine Lender agrees to deliver to Mortgage Lender a monthly notice letter (the Mezzanine Lender Monthly Debt Service Notice) at least five (5) Business Days prior to each Payment Date setting forth the Debt Service (Fourth Mezzanine) payable by Mezzanine Borrower on the first Payment Date occurring after the date such amounts have been fully funded or reserved within notice is delivered.
(d) Mezzanine Borrower hereby acknowledges that, pursuant to Section 3.1.6 of the Loan Agreement (Mortgage), (i) to the extent Mortgage Lender has received a Senior Mezzanine Account in any given calendar month.Loan Default Notice and until such time as Mortgage Lender receives
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Toys R Us Inc)
Monthly Funding. (a) Mezzanine Borrower hereby instructs irrevocably authorizes Mezzanine Lender to transfer (and and, pursuant to the Mezzanine Account Agreement (Mezzanine) shall irrevocably authorize Cash Management Bank (Second Mezzanine) to execute any corresponding instructions of Mezzanine Lender), and Mezzanine Lender shall transfer (or cause Cash Management Bank to transfer pursuant to disbursement instructions from Mezzanine Lender) to the Mezzanine Debt Service Reserve Accounttransfer, from the Mezzanine Account by 11:00 am a.m. New York time on the first date on which each payment of funds on deposit in the Second Mezzanine Debt Service Reserve Account under the Loan Agreement (1stMortgage) calendar day of each calendar month (and if such day is not a Business Day then on made to the immediately preceding Business Day) Mezzanine Account, or as soon thereafter as there shall be sufficient collected funds are in the Mezzanine Account to make the applicable transfers, commencing on deposit in the date of the first transfer of funds from the Second Mezzanine Debt Service Reserve Account under the Loan Agreement (Mortgage) to the Mezzanine Account, and from time to time (but no less frequently than weekly thereafter) funds in an amount equal to the sum of any Protective Advances which may have been advanced by (and not previously reimbursed to) the Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents (Mezzanine) to cure any Default or Event of Default, any Mortgage Default or Mortgage Event of Default, or to protect the Collateral together with any interest payable on such amounts pursuant to the Mezzanine Loan Documents (Mezzanine)Documents, plus (x) the unpaid Debt Service (Second Mezzanine) for the next occurring Payment Date, plus (y) an amount equal to such payments for any prior month(s), to the extent not previously paid, plus (z) an amount equal to the amount, if any, deducted from the Mezzanine Account in any preceding month to pay any other amounts then due under the Mezzanine Loan Documents (Mezzanine) (other than any Debt Service (Second Mezzanine)). Mezzanine Borrower acknowledges that Mezzanine Lender shall not be required to make such withdrawal and deposit until such time as Mezzanine Lender is able to calculate the amount of the Debt Service (Second Mezzanine) for the next occurring Payment Date. As used herein, the term “Net Excess Cash Flow” means the amount available .
(b) If for any reason there will be insufficient amounts in the Mezzanine Account after the transfers to the Mezzanine Debt Service Reserve Account on any Payment Date to pay the Debt Service (Second Mezzanine) due on such Payment Date, Mezzanine Borrower shall immediately deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Debt Service Reserve Account. Any failure by Mezzanine Borrower to deposit the full amount required under this by the preceding sentence shall constitute an Event of Default hereunder. If Mezzanine Lender shall reasonably determine that there will be insufficient amounts in the Mezzanine Account to pay any Protective Advances as and when the same are due and payable, Mezzanine Lender shall provide written notice of same to Mezzanine Borrower setting forth the basis for such determination. Within ten (10) Business Days of receipt of said notice, Mezzanine Borrower shall deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Account. Any failure by Mezzanine Borrower to deposit the full amount required by the preceding sentence within said ten (10) Business Day period shall constitute an Event of Default hereunder.
(c) Mezzanine Lender (so long as Mezzanine Lender is not the same entity as Mortgage Lender) agrees to deliver to Mortgage Lender a monthly notice letter (the Second Mezzanine Lender Monthly Debt Service Notice as described in the Loan Agreement (Mortgage)) at least five (5) Business Days prior to each Payment Date setting forth the Debt Service (Second Mezzanine) payable by Mezzanine Borrower on the first Payment Date occurring after the date such notice is delivered.
(d) Mezzanine Borrower hereby acknowledges that, pursuant to Section 3.1.6 have been made of the Loan Agreement (Mortgage), to the extent Mortgage Lender has received a Mezzanine Loan Default Notice and until such time as Mortgage Lender receives a Mezzanine Loan Default Revocation Notice, the term “Net Mortgage Borrower has irrevocably directed that Excess Cash Flow Commencement Date” shall mean the date such amounts have been fully funded and any other payments to be made to Mezzanine Borrower, any Junior Mezzanine Borrower, Mezzanine Lender, or reserved within any Junior Mezzanine Lender are to be deposited directly into the Mezzanine Account for application as provided in this Agreement (in lieu of transferring such funds to such accounts of the Mezzanine Lender, any given calendar monthJunior Mezzanine Lender or Mortgage Borrower as the Mortgage Borrower may have so directed if the Mortgage Lender had not received such notice from Mezzanine Lender). Mezzanine Lender shall promptly provide Mortgage Lender with a Mezzanine Loan Default Revocation Notice if an Event of Default which has occurred under the Mezzanine Loan Documents is no longer continuing.
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Station Casinos Inc)
Monthly Funding. (a) Mezzanine Borrower hereby instructs irrevocably authorizes Mezzanine Lender to transfer (and pursuant to the Account Agreement (Third Mezzanine) shall irrevocably authorize Cash Management Bank (Third Mezzanine) to execute any corresponding instructions of Mezzanine Lender), and Mezzanine Lender shall transfer (or cause Cash Management Bank to transfer pursuant to disbursement instructions from Mezzanine Lender) to the Mezzanine Debt Service Reserve Account, from the Third Mezzanine Account by 11:00 am New York time on the first (1st) calendar day of each calendar month (and if such day is not a Business Day then on the immediately preceding Business Day) or as soon thereafter as there shall be sufficient collected funds on deposit in the Third Mezzanine Account, and from time to time (but no less frequently than weekly thereafter) funds in an amount equal to the sum of any Protective Advances which may have been advanced by (and not previously reimbursed to) the Mezzanine Lender pursuant to the terms of the Loan Documents (Third Mezzanine) to cure any Default or Event of Default, any Default or Event of Default under any Senior Mezzanine Loan, any Mortgage Default or Mortgage Event of Default, or to protect the Collateral together with any interest payable on such amounts pursuant to the Loan Documents (Third Mezzanine), plus (x) the unpaid Debt Service (Third Mezzanine) for the next occurring Payment Date, plus (y) an amount equal to such payments for any prior month(s), to the extent not previously paid, plus (z) an amount equal to the amount, if any, deducted from the Third Mezzanine Account in any preceding month to pay any other amounts then due under the Loan Documents (Third Mezzanine) (other than any Debt Service (Third Mezzanine)). Mezzanine Borrower acknowledges that Mezzanine Lender shall not be required to make such withdrawal and deposit until such time as Mezzanine Lender is able to calculate the amount of the Debt Service (Third Mezzanine) for the next occurring Payment Date. As used herein, the term “Net Excess Cash Flow” NET EXCESS CASH FLOW means the amount available in the Third Mezzanine Account after the transfers to the Mezzanine Debt Service Reserve Account required under this Section 3.1.6 3.1.5 have been made and the term “Net Excess Cash Flow Commencement Date” NET EXCESS CASH FLOW COMMENCEMENT DATE shall mean the date such amounts have been fully funded or reserved within the Third Mezzanine Account in any given calendar month.
(b) If for any reason there will be insufficient amounts in the Mezzanine Debt Service Reserve Account on any Payment Date to pay the Debt Service (Third Mezzanine) due on such Payment Date, Mezzanine Borrower shall immediately deposit into the Third Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Debt Service Reserve Account. Any failure by Mezzanine Borrower to deposit the full amount required by the preceding sentence shall constitute an Event of Default hereunder. If Mezzanine Lender shall reasonably determine that there will be insufficient amounts in the Third Mezzanine Account to pay any Protective Advances as and when the same are due and payable, Mezzanine Lender shall provide written notice of same to Mezzanine Borrower setting forth the basis for such determination. Within five (5) Business Days of receipt of said notice, Mezzanine Borrower shall deposit into the Third Mezzanine Account an amount equal to the shortfall of available funds in the Third Mezzanine Account. Any failure by Mezzanine Borrower to deposit the full amount required by the preceding sentence within said five (5) Business Day period shall constitute an Event of Default hereunder.
(c) Provided that (i) no Event of Default shall have occurred and be continuing hereunder or under any of the other Loan Documents (Third Mezzanine), (ii) no Mortgage Event of Default shall have occurred and be continuing, (iii) no Senior Mezzanine Event of Default shall have occurred and be continuing; (iv) Mezzanine Borrower shall have delivered to Mezzanine Lender an Officer's Certificate (which Mezzanine Borrower shall not be obligated to deliver more frequently than once per calendar month) certifying that the signatories know of no Event of Default, Mortgage Event of Default or Senior Mezzanine Event of Default (as applicable) that has occurred and is then outstanding hereunder or under any of the other Loan Documents (Third Mezzanine), Senior Mezzanine Loan Documents, or under any of the Loan Documents (Mortgage), and (v) Mezzanine Borrower shall have deposited into the Third Mezzanine Account all funds then required to have been so deposited, then Mezzanine Lender shall transfer the Net Excess Cash Flow from the Third Mezzanine Account to (A) the Fourth Mezzanine Account, or (B) following the repayment of the Fourth Mezzanine Loan, and provided that the Fifth Mezzanine Lender shall have funded the Fifth Mezzanine Loan on or before the Outside Date, to the Fifth Mezzanine Account or (C ) following the repayment of the Fourth Mezzanine Loan, and the Fifth Mezzanine Loan, to the Mezzanine Borrower's Account.
(d) In the event that an Event of Default shall have occurred and is then continuing, then, without notice from Mezzanine Lender, all Net Excess Cash Flow shall be applied to reduce the outstanding Principal Amount of the Mezzanine Note. At such time that the Event of Default shall no longer be continuing and provided no other Event of Default shall have occurred and be continuing under the Mortgage Loan, any Senior Mezzanine Loan, or Mezzanine Loan, then all Net Excess Cash Flow shall be distributed in accordance with the provision of subsection (c) above.
(e) Mezzanine Lender (so long as Mezzanine Lender is not the same entity as Mortgage Lender) agrees to deliver to Mortgage Lender a monthly notice letter (the MEZZANINE LENDER MONTHLY DEBT SERVICE NOTICE LETTER) at least five (5) Business Days prior to each Payment Date setting forth the Debt Service (Third Mezzanine) payable by Mezzanine Borrower on the first Payment Date occurring after the date such notice is delivered.
(f) Mezzanine Borrower hereby acknowledges that, pursuant to Section 3.1.5 of the Second Mezzanine Loan Agreement, (i) to the extent the Second Mezzanine Lender has received notice from Mezzanine Lender that an Event of Default has occurred and is continuing under the Loan Documents (Third Mezzanine) (a MEZZANINE LOAN DEFAULT NOTICE) and until such time as Second Mezzanine Lender receives a notice from Mezzanine Lender that such Event of Default is no longer continuing (a MEZZANINE LOAN DEFAULT REVOCATION NOTICE), the Second Mezzanine Borrower has irrevocably directed that Excess Cash Flow is to be deposited directly into the Third Mezzanine Account for application as provided in this Agreement (in lieu of transferring such funds to such accounts of the Junior Mezzanine Borrowers or Second Mezzanine Borrower as the Second Mezzanine Borrower may have so directed if the Second Mezzanine Lender had not received such notice from Mezzanine Lender), (ii) to the extent Second Mezzanine Lender has not received a Mezzanine Loan default notice but has received a Fourth Mezzanine Loan Default Notice and until such time as Second Mezzanine Lender receives a Fourth Mezzanine Loan Default Revocation Notice, Second Mezzanine Borrower irrevocably directs that all Excess Cash Flow be deposited directly into the Fourth Mezzanine Account for application as provided in the Fourth Mezzanine Loan Agreement (in lieu of transferring such funds to such accounts of Second Mezzanine Borrower as Second Mezzanine Borrower may have so directed if Second Mezzanine Lender had not received such notice from Fourth Mezzanine Lender) and (iii) the directions described in the preceding clauses (i) or (ii) shall not be changed or terminated without the written consent of the Mezzanine Lender. Notwithstanding any provision herein to the contrary, provided no Event of Default has occurred or is continuing, there shall be disbursed to Mezzanine Borrower the Proceeds of a Condemnation or Casualty remaining after payment of all amounts to which Mortgage Lender, each Senior Mezzanine Lender, Mezzanine Lender and each Junior Mezzanine Lender are entitled. Mezzanine Borrower agrees that Mezzanine Lender shall not be required to deliver to Second Mezzanine Lender a Mezzanine Loan Default Notice prior to the deposit of Proceeds into the Mezzanine Account.
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (CNL Hotels & Resorts, Inc.)
Monthly Funding. (a) Mezzanine Borrower hereby instructs Mezzanine Lender to transfer (and pursuant to the Account Agreement (Intermediate Mezzanine) shall irrevocably authorize Cash Management Bank (Intermediate Mezzanine) to execute any corresponding instructions of Mezzanine Lender), and Mezzanine Lender shall transfer (or cause Cash Management Bank to transfer pursuant to disbursement instructions from Mezzanine Lender) to the Mezzanine Debt Service Reserve Account, from the Intermediate Mezzanine Account by 11:00 am New York time on the first (1st) calendar day of each calendar month (and if such day is not a Business Day then on the immediately preceding Business Day) or as soon thereafter as there shall be sufficient collected funds on deposit in the Intermediate Mezzanine Account, and from time to time (but no less frequently than weekly thereafter) funds in an amount equal to the sum of any Protective Advances which may have been advanced by (and not previously reimbursed to) the Mezzanine Lender pursuant to the terms of the Loan Documents (Intermediate Mezzanine) to cure any Default or Event of Default, any Mortgage Default or Mortgage Event of Default, or to protect the Collateral together with any interest payable on such amounts pursuant to the Loan Documents (Intermediate Mezzanine), plus (x) the unpaid Debt Service (Intermediate Mezzanine) for the next occurring Payment Date, plus (y) an amount equal to such payments for any prior month(s), to the extent not previously paid, plus (z) an amount equal to the amount, if any, deducted from the Intermediate Mezzanine Account in any preceding month to pay any other amounts then due under the Loan Documents (Intermediate Mezzanine) (other than any Debt Service (Intermediate Mezzanine)). Mezzanine Borrower acknowledges that Mezzanine Lender shall not be required to make such withdrawal and deposit until such time as Mezzanine Lender is able to calculate the amount of the Debt Service (Intermediate Mezzanine) for the next occurring Payment Date. As used herein, the term “Net Excess Cash Flow” Flow means the amount available in the Intermediate Mezzanine Account after the transfers to the Intermediate Mezzanine Debt Service Reserve Account required under this Section 3.1.6 have been made and the term “Net Excess Cash Flow Commencement Date” Date shall mean the date such amounts have been fully funded or reserved within the Intermediate Mezzanine Account in any given calendar month.
(b) If for any reason there will be insufficient amounts in the Mezzanine Debt Service Reserve Account on any Payment Date to pay the Debt Service (Intermediate Mezzanine) due on such Payment Date, Mezzanine Borrower shall immediately deposit into the Intermediate Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Debt Service Reserve Account. Any failure by Mezzanine Borrower to deposit the full amount required by the preceding sentence shall constitute an Event of Default hereunder. If Mezzanine Lender shall reasonably determine that there will be insufficient amounts in the Intermediate Mezzanine Account to pay any Protective Advances as and when the same are due and payable, Mezzanine Lender shall provide written notice of same to Mezzanine Borrower setting forth the basis for such determination. Within five (5) Business Days of receipt of said notice, Mezzanine Borrower shall deposit into the Intermediate Mezzanine Account an amount equal to the shortfall of available funds in the Intermediate Mezzanine Account. Any failure by Mezzanine Borrower to deposit the full amount required by the preceding sentence within said five (5) Business Day period shall constitute an Event of Default hereunder.
(c) Provided that (i) no Event of Default shall have occurred and be continuing hereunder or under any of the other Loan Documents (Intermediate Mezzanine), (ii) no Mortgage Event of Default shall have occurred and be continuing, (iii) no Event of Default shall have occurred and be continuing under the Senior Mezzanine Loan or the Senior Mezzanine Loan Documents, (iv) Mezzanine Borrower shall have delivered to Mezzanine Lender an Officer's Certificate (which Mezzanine Borrower shall not be obligated to deliver more frequently than once per calendar month) certifying that the signatories know of no Event of Default that has occurred and is then outstanding under the Loan, the Mortgage Loan or Senior Mezzanine Loan, and (v) Mezzanine Borrower shall have deposited into the Intermediate Mezzanine Account all funds then required to have been so deposited, then Mezzanine Lender shall transfer the Net Excess Cash Flow from the Intermediate Mezzanine Account to (A) the Junior Mezzanine Account, or (B) following the repayment of the Junior Mezzanine Loan, to the Mezzanine Borrower's Account.
(d) In the event that an Event of Default shall have occurred and is then continuing, then, without notice from Mezzanine Lender, all Net Excess Cash Flow shall be applied to reduce the outstanding Principal Amount of the Mezzanine Note. At such time that the Event of Default shall no longer be continuing and provided none of the events set forth in subsection (c)(i) through (iii) above shall have occurred and is then continuing, then all Net Excess Cash Flow shall be distributed in accordance with the provision of subsection (c) above.
(e) Mezzanine Lender (so long as Mezzanine Lender is not the same entity as Mortgage Lender) agrees to deliver to Mortgage Lender a monthly notice letter (the Mezzanine Lender Monthly Debt Service Notice Letter) at least five (5) Business Days prior to each Payment Date setting forth (i) the Debt Service (Intermediate Mezzanine) payable by Mezzanine Borrower on the first Payment Date occurring after the date such notice is delivered, and (ii) whether or not an Event of Default has then occurred and is continuing under the Mezzanine Loan Documents.
(f) Mezzanine Borrower hereby acknowledges that, pursuant to Section 3.1.5 of the Loan Agreement (Mortgage), (i) to the extent the Mortgage Lender has received notice from Mezzanine Lender than an Event of Default has occurred and is continuing under the Loan Documents (Intermediate Mezzanine) (a Mezzanine Loan Default Notice) and until such time as Mortgage Lender receives a notice from Mezzanine Lender that such Event of Default is no longer continuing a Mezzanine Loan Default Revocation Notice), the Mortgage Borrower has irrevocably directed that Excess Cash Flow is to be deposited directly into the Mezzanine Account for application as provided in this Agreement (in lieu of transferring such funds to such accounts of the Mortgage Borrower as the Mortgage Borrower may have so directed if the Mortgage Lender had not received such notice from Mezzanine Lender), (ii) to the extent Mortgage Lender has not received a Mezzanine Loan Default Notice but has received a Senior Mezzanine Loan Default Notice and until such time as Mortgage Lender receives a Senior Mezzanine Loan Default Revocation Notice, Mortgage Borrower has irrevocably directed that all Excess Cash Flow be deposited directly into the Senior Mezzanine Account for application as provided in the Senior Mezzanine Loan Agree-ment (in lieu of transferring such funds to such accounts of Mortgage Borrower as Mortgage Borrower may have so directed if Mortgage Lender had not received such notice from Senior Mezzanine Lender) and (iii) to the extent Mortgage Lender has not received a Mezzanine Loan Default Notice but has received a Junior Mezzanine Loan Default Notice and until such time as Mortgage Lender receives a Junior Mezzanine Loan Default Revocation Notice, Mortgage Borrower has irrevocably directed that all Excess Cash Flow be deposited directly into the Junior Mezzanine Account for application as provided in the Junior Mezzanine Loan Agreement (in lieu of transferring such funds to such accounts of Mortgage Borrower as Mortgage Borrower may have so directed if Mortgage Lender had not received such notice from Junior Mezzanine Lender) and (iv) the directions described in the preceding clauses (i), (ii) or (iii) shall not be changed or terminated without the written consent of the Mezzanine Lender. Notwithstanding any provision herein to the contrary, provided no Event of Default has occurred or is continuing, there shall be disbursed to Mezzanine Borrower the Proceeds of a Condemnation or Casualty remaining after payment of all amounts to which Mortgage Lender, Intermediate Mezzanine Lender and Mezzanine Lender are entitled. Mezzanine Borrower agrees that Mezzanine Lender shall not be required to deliver to Mortgage Lender a Mezzanine Loan Default Notice prior to the deposit of Proceeds into the Mezzanine Account.
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (CNL Hotels & Resorts, Inc.)
Monthly Funding. (a) Mezzanine Borrower hereby instructs irrevocably authorizes Mezzanine Lender to transfer (and and, pursuant to the Mezzanine Account Agreement (Mezzanine) shall irrevocably authorize Cash Management Bank (Third Mezzanine) to execute any corresponding instructions of Mezzanine Lender), and Mezzanine Lender shall transfer (or cause Cash Management Bank to transfer pursuant to disbursement instructions from Mezzanine Lender) to the Mezzanine Debt Service Reserve Accounttransfer, from the Mezzanine Account by 11:00 am a.m. New York time on the first date on which each payment of funds on deposit in the Third Mezzanine Debt Service Reserve Account under the Loan Agreement (1stMortgage) calendar day of each calendar month (and if such day is not a Business Day then on made to the immediately preceding Business Day) Mezzanine Account, or as soon thereafter as there shall be sufficient collected funds are in the Mezzanine Account to make the applicable transfers, commencing on deposit in the date of the first transfer of funds from the Third Mezzanine Debt Service Reserve Account under the Loan Agreement (Mortgage) to the Mezzanine Account, and from time to time (but no less frequently than weekly thereafter) funds in an amount equal to the sum of any Protective Advances which may have been advanced by (and not previously reimbursed to) the Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents (Mezzanine) to cure any Default or Event of Default, any Mortgage Default or Mortgage Event of Default, or any Senior Mezzanine Default or Senior Mezzanine Event of Default, or to protect the Collateral or the Senior Mezzanine Collateral together with any interest payable on such amounts pursuant to the Mezzanine Loan Documents (Mezzanine)Documents, plus (x) the unpaid Debt Service (Third Mezzanine) for the next occurring Payment Date, plus (y) an amount equal to such payments for any prior month(s), to the extent not previously paid, plus (z) an amount equal to the amount, if any, deducted from the Mezzanine Account in any preceding month to pay any other amounts then due under the Mezzanine Loan Documents (Mezzanine) (other than any Debt Service (Third Mezzanine)). Funds representing the sum of Protective Advances, payments for prior months to the extent not previously paid, and sums deducted from the Mezzanine Account in any preceding month to pay any other amounts then due under the Mezzanine Loan Documents (other than Debt Service (Third Mezzanine)) shall be transferred by Mezzanine Lender from the Mezzanine Account to Mezzanine Lender. Funds representing unpaid Debt Service (Third Mezzanine) for the next occurring Payment Date shall be transferred by Mezzanine Lender from the Mezzanine Account to the Mezzanine Debt Service Reserve Account, and on the next occurring Payment Date, Mezzanine Lender shall apply or direct Cash Management Bank (Third Mezzanine) to apply, the funds on deposit in the Mezzanine Debt Service Reserve Account for the payment of Debt Service (Third Mezzanine). Mezzanine Borrower acknowledges that Mezzanine Lender shall not be required to make such withdrawal and deposit until such time as Mezzanine Lender is able to calculate the amount of the Debt Service (Third Mezzanine) for the next occurring Payment Date. As used herein, the term “Net Excess Cash Flow” means the amount available Funds representing any balance in the Mezzanine Account after the foregoing transfers have been completed shall be transferred by Mezzanine Lender from the Mezzanine Account to the “Mezzanine Account” under the Fourth Mezzanine Loan Agreement within one (1) Business Day after the foregoing transfers have been completed.
(b) If for any reason there will be insufficient amounts in the Mezzanine Debt Service Reserve Account on any Payment Date to pay the Debt Service (Third Mezzanine) due on such Payment Date, Mezzanine Borrower shall immediately deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Debt Service Reserve Account. Any failure by Mezzanine Borrower to deposit the full amount required under this by the preceding sentence shall constitute an Event of Default hereunder. If Mezzanine Lender shall reasonably determine that there will be insufficient amounts in the Mezzanine Account to pay any Protective Advances as and when the same are due and payable, Mezzanine Lender shall provide written notice of same to Mezzanine Borrower setting forth the basis for such determination. Within ten (10) Business Days of receipt of said notice, Mezzanine Borrower shall deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Account. Any failure by Mezzanine Borrower to deposit the full amount required by the preceding sentence within said ten (10) Business Day period shall constitute an Event of Default hereunder.
(c) Mezzanine Lender (so long as Mezzanine Lender is not the same entity as Mortgage Lender) agrees to deliver to Mortgage Lender a monthly notice letter (the Third Mezzanine Lender Monthly Debt Service Notice as described in the Loan Agreement (Mortgage)) at least five (5) Business Days prior to each Payment Date setting forth the Debt Service (Third Mezzanine) payable by Mezzanine Borrower on the first Payment Date occurring after the date such notice is delivered.
(d) Mezzanine Borrower hereby acknowledges that, pursuant to Section 3.1.6 have been made 3.1.7 of the Loan Agreement (Mortgage), to the extent Mortgage Lender has received a Mezzanine Loan Default Notice and until such time as Mortgage Lender receives a Mezzanine Loan Default Revocation Notice, the term “Net Mortgage Borrower has irrevocably directed that Excess Cash Flow Commencement Date” shall mean the date such amounts have been fully funded and any other payments to be made to Mezzanine Borrower, any Junior Mezzanine Borrower, Mezzanine Lender, or reserved within any Junior Mezzanine Lender are to be deposited directly into the Mezzanine Account for application as provided in this Agreement (in lieu of transferring such funds to such accounts of the Mezzanine Lender, any given calendar monthJunior Mezzanine Lender or Mortgage Borrower as the Mortgage Borrower may have so directed if the Mortgage Lender had not received such notice from Mezzanine Lender). Mezzanine Lender shall promptly provide Mortgage Lender with a Mezzanine Loan Default Revocation Notice if an Event of Default which has occurred under the Mezzanine Loan Documents is no longer continuing and on the date that Mezzanine Lender provides such Mezzanine Loan Default Revocation Notice to Mortgage Lender, any balance in the Mezzanine Account which would have been transferable to the “Mezzanine Account” under the Fourth Mezzanine Loan Agreement had the subject Mezzanine Loan Default Notice not been in effect shall be promptly transferred by Mezzanine Lender from the Mezzanine Account to the “Mezzanine Account” under the Fourth Mezzanine Loan Agreement.
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Station Casinos Inc)
Monthly Funding. (a) Mezzanine Borrower hereby instructs irrevocably authorizes Mezzanine Lender to transfer (and pursuant to the Mezzanine Account Agreement (Mezzanine) shall irrevocably authorize Cash Management Bank (Third Mezzanine) to execute any corresponding instructions of Mezzanine Lender), and Mezzanine Lender shall transfer (or cause Cash Management Bank to transfer pursuant to disbursement instructions from Mezzanine Lender) to the Mezzanine Debt Service Reserve Account, from the Mezzanine Account by 11:00 am a.m. New York time on the first (1st) calendar day date on which each payment of each calendar month (and if such day Master Lease Rent under the Master Lease is not a Business Day then on made to the immediately preceding Business Day) Holding Account, or as soon thereafter as there shall be sufficient collected funds on deposit in the Mezzanine Account, and from time to time (but no less frequently than weekly thereafter) funds in an amount equal to the sum of any Protective Advances which may have been advanced by (and not previously reimbursed to) the Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents (Mezzanine) to cure any Default or Event of Default, any Mortgage Default or Mortgage Event of Default, or to protect the Collateral together with any interest payable on such amounts pursuant to the Mezzanine Loan Documents (Mezzanine)Documents, plus (x) the unpaid Debt Service (Third Mezzanine) for the next occurring Payment Date, plus (y) an amount equal to such payments for any prior month(s), to the extent not previously paid, plus (z) an amount equal to the amount, if any, deducted from the Mezzanine Account in any preceding month to pay any other amounts then due under the Mezzanine Loan Documents (Mezzanine) (other than any Debt Service (Third Mezzanine)). Mezzanine Borrower acknowledges that Mezzanine Lender shall not be required to make such withdrawal and deposit until such time as Mezzanine Lender is able to calculate the amount of the Debt Service (Third Mezzanine) for the next occurring Payment Date. As used herein, the term “Net Excess Cash Flow” means the amount available .
(b) If for any reason there will be insufficient amounts in the Mezzanine Account after the transfers to the Mezzanine Debt Service Reserve Account on any Payment Date to pay the Debt Service (Third Mezzanine) due on such Payment Date, Mezzanine Borrower shall immediately deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Debt Service Reserve Account. Any failure by Mezzanine Borrower to deposit the full amount required under this Section 3.1.6 have been made by the preceding sentence shall constitute an Event of Default hereunder. If Mezzanine Lender shall reasonably determine that there will be insufficient amounts in the Mezzanine Account to pay any Protective Advances as and when the term “Net Excess Cash Flow Commencement Date” same are due and payable, Mezzanine Lender shall mean provide written notice of same to Mezzanine Borrower setting forth the basis for such determination. Within five (5) Business Days of receipt of said notice, Mezzanine Borrower shall deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Account. Any failure by Mezzanine Borrower to deposit the full amount required by the preceding sentence within said five (5) Business Day period shall constitute an Event of Default hereunder.
(c) Mezzanine Lender agrees to deliver to Mortgage Lender a monthly notice letter (the Mezzanine Lender Monthly Debt Service Notice) at least five (5) Business Days prior to each Payment Date setting forth the Debt Service (Third Mezzanine) payable by Mezzanine Borrower on the first Payment Date occurring after the date such amounts have been fully funded or reserved within notice is delivered.
(d) Mezzanine Borrower hereby acknowledges that, pursuant to Section 3.1.6 of the Loan Agreement (Mortgage), (i) to the extent Mortgage Lender has received a Senior Mezzanine Account in any given calendar month.Loan Default Notice and until such time as Mortgage Lender receives
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Toys R Us Inc)
Monthly Funding. (a) Mezzanine Borrower hereby instructs Mezzanine irrevocably authorizes Lender to transfer (and pursuant to the Account Agreement (Mezzanine) shall irrevocably authorize Cash Management Bank (Mezzanine) to execute any corresponding instructions of Mezzanine Lender)transfer, and Mezzanine Lender shall transfer (or cause Cash Management Bank to transfer pursuant to disbursement instructions from Mezzanine Lender) to the Mezzanine Debt Service Reserve Accounttransfer, from the Mezzanine Collateral Account by 11:00 am a.m. New York time on the first (1st) calendar day of each calendar month (and if such day is not a Business Day then on the immediately preceding Business Day) Payment Date, or as soon thereafter as there shall be sufficient collected funds on deposit in the Mezzanine Collateral Account, and from time to time (but no less frequently than weekly thereafter) to Lender funds in an amount equal to the sum of any Protective Advances which may have been advanced by (and not previously reimbursed to) the Mezzanine Lender pursuant to the terms of the Loan Documents (Mezzanine) to cure any Default or Event of Default, any Mortgage Default or Mortgage Event of Default, or to protect the Collateral together with any interest payable on such amounts pursuant to the Loan Documents (Mezzanine)Documents, plus (x) the unpaid Mezzanine Loan Debt Service (Mezzanine) for Amount due on the next occurring Payment DateDate on which the transfer from the Collateral Account is made, plus (y) an amount equal to such payments for any prior month(s), to the extent not previously paid, plus (z) an amount equal to the amount, if any, deducted from the Mezzanine Collateral Account in any preceding month to pay any other amounts then due under the Loan Documents (Mezzanine) (other than any Mezzanine Loan Debt Service Amounts).
(Mezzanineb) If for any reason there will be insufficient amounts in the Collateral Account on any Payment Date to pay the Mezzanine Loan Debt Service Amount due on such Payment Date, Borrower shall immediately deposit into the Collateral Account an amount equal to the shortfall of available funds. Any failure by Borrower to deposit the full amount required by the preceding sentence shall constitute an Event of Default hereunder. If Lender shall reasonably determine that there will be insufficient amounts in the Collateral Account to pay any Protective Advances as and when the same are due and payable, Lender shall provide written notice of same to Borrower setting forth the basis for such determination. Within five (5) Business Days of receipt of said notice, Borrower shall deposit into the Collateral Account an amount equal to the shortfall of available funds in the Collateral Account. Any failure by Borrower to deposit the full amount required by the preceding sentence within said five (5) Business Day period shall constitute an Event of Default hereunder.
(c) Lender agrees to deliver to Mortgage Lender at least five (5) Business Days prior to each Payment Date a written notice setting forth the Mezzanine Loan Debt Service Amount payable by Borrower on the first Payment Date occurring after the date such notice is delivered (the “Mezzanine Lender Monthly Debt Service Notice”)); provided, however, that any Mezzanine Lender Monthly Debt Service Notice sent to Mortgage Lender shall be applicable with respect to all future Payment Dates until Lender sends a new Mezzanine Lender Monthly Debt Service Notice to Mortgage Lender, it being understood that Lender will not be required to send a new Mezzanine Lender Monthly Debt Service Notice to Mortgage Lender unless and until the Mezzanine Loan Debt Service Amount due on the ensuing Payment Date is different from the Mezzanine Loan Debt Service Amount due on the immediately preceding Payment Date, and Mortgage Lender shall be permitted to rely on the most recently received Mezzanine Lender Monthly Debt Service Notice until Mortgage Lender receives a new Mezzanine Lender Monthly Debt Service Notice from Lender. Mezzanine Borrower acknowledges agrees that Mezzanine Lender shall not be required to make deliver to Mortgage Lender any additional notice with respect to distribution of Proceeds prior to the deposit of Proceeds into the Collateral Account.
(d) Borrower hereby acknowledges that, (i) pursuant to Section 3.1.6 of the Mortgage Loan Agreement, to the extent that a Mortgage Event of Default has occurred and is continuing, all Excess Cash Flow and any other payments that would otherwise be distributed to Borrower, Second Mezzanine Borrower, Lender or Second Mezzanine Lender are to be held in the Holding Account and applied in accordance with the Mortgage Loan Agreement (unless otherwise agreed to by Mortgage Lender) and (ii) to the extent required by, and in accordance with, Section 6.2.3(b) of the Mortgage Loan Agreement, any Proceeds will be disbursed to Lender to prepay the Loan in the amount of the Release Price for such withdrawal Individual Property to which the Proceeds relate. Any Proceeds received by Mortgage Lender in excess of the release price specified in Section 6.2.3(b) of the Mortgage Loan Agreement for such affected Individual Property shall be paid in accordance with the payment priorities set forth in Section 6.2.3(b) of the Mortgage Loan Agreement.
(e) Borrower hereby also acknowledges that (i) Lender has the right to deliver notice to Mortgage Lender that an Event of Default has occurred and deposit is continuing under the Loan Documents (a “Mezzanine Loan Default Notice”), and (ii) pursuant to the Mortgage Loan Agreement, provided there is no Mortgage Event of Default and to the extent Mortgage Lender has received a Mezzanine Loan Default Notice, Mortgage Borrower has irrevocably directed that all Excess Cash Flow is to be deposited directly into the Collateral Account for application as provided in this Agreement (in lieu of transferring such funds to the Mortgage Borrower’s Account if Mortgage Lender had not received a Mezzanine Loan Default Notice) until such time as Mezzanine Mortgage Lender receives a notice from Lender that such Event of Default is able no longer continuing.
(f) Notwithstanding anything to calculate the amount contrary in this Agreement or the other Loan Documents, payments or distributions made directly to or on behalf of Mortgage Borrower or Mortgage Lender, including the distribution or payment of any Asset Management Fee pursuant to the Mortgage Loan Agreement and any funds distributed or paid to the Mortgage Borrower’s Account pursuant to the Mortgage Loan Agreement or to the Borrower’s Account pursuant to this Agreement shall be free and clear of any lien of the Debt Service (Mezzanine) for Mortgage Loan Documents and the next occurring Payment Date. As used hereinLoan Documents and may be paid, used, or distributed without the term “Net Excess Cash Flow” means the amount available in the Mezzanine Account after the transfers same being transferred to the Mezzanine Debt Service Reserve Mortgage Collateral Account required under this Section 3.1.6 have been made and or the term “Net Excess Cash Flow Commencement Date” shall mean the date such amounts have been fully funded or reserved within the Mezzanine Account in any given calendar monthCollateral Account.
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Bloomin' Brands, Inc.)
Monthly Funding. (a) Mezzanine Borrower hereby instructs irrevocably authorizes Mezzanine Lender to transfer (and and, pursuant to the Mezzanine Account Agreement (Mezzanine) shall irrevocably authorize Cash Management Bank (First Mezzanine) to execute any corresponding instructions of Mezzanine Lender), and Mezzanine Lender shall transfer (or cause Cash Management Bank to transfer pursuant to disbursement instructions from Mezzanine Lender) to the Mezzanine Debt Service Reserve Accounttransfer, from the Mezzanine Account by 11:00 am a.m. New York time on the first date on which each payment of funds on deposit in the First Mezzanine Debt Service Reserve Account under the Loan Agreement (1stMortgage) calendar day of each calendar month (and if such day is not a Business Day then on made to the immediately preceding Business Day) Mezzanine Account, or as soon thereafter as there shall be sufficient collected funds are in the Mezzanine Account to make the applicable transfers, commencing on deposit in the date of the first transfer of funds from the First Mezzanine Debt Service Reserve Account under the Loan Agreement (Mortgage) to the Mezzanine Account, and from time to time (but no less frequently than weekly thereafter) funds in an amount equal to the sum of any Protective Advances which may have been advanced by (and not previously reimbursed to) the Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents (Mezzanine) to cure any Default or Event of Default, any Mortgage Default or Mortgage Event of Default, or to protect the Collateral together with any interest payable on such amounts pursuant to the Mezzanine Loan Documents (Mezzanine)Documents, plus (x) the unpaid Debt Service (First Mezzanine) for the next occurring Payment Date, plus (y) an amount equal to such payments for any prior month(s), to the extent not previously paid, plus (z) an amount equal to the amount, if any, deducted from the Mezzanine Account in any preceding month to pay any other amounts then due under the Mezzanine Loan Documents (Mezzanine) (other than any Debt Service (First Mezzanine)). Funds representing the sum of Protective Advances, payments for prior months to the extent not previously paid, and sums deducted from the Mezzanine Account in any preceding month to pay any other amounts then due under the Mezzanine Loan Documents (other than Debt Service (First Mezzanine)) shall be transferred by Mezzanine Lender from the Mezzanine Account to Mezzanine Lender. Funds representing unpaid Debt Service (First Mezzanine) for the next occurring Payment Date shall be transferred by Mezzanine Lender from the Mezzanine Account to the Mezzanine Debt Service Reserve Account, and on the next occurring Payment Date, Mezzanine Lender shall apply or direct Cash Management Bank (First Mezzanine) to apply, the funds on deposit in the Mezzanine Debt Service Reserve Account for the payment of Debt Service (First Mezzanine). Mezzanine Borrower acknowledges that Mezzanine Lender shall not be required to make such withdrawal and deposit until such time as Mezzanine Lender is able to calculate the amount of the Debt Service (First Mezzanine) for the next occurring Payment Date. As used herein, the term “Net Excess Cash Flow” means the amount available Funds representing any balance in the Mezzanine Account after the foregoing transfers have been completed shall be transferred by Mezzanine Lender from the Mezzanine Account to the “Mezzanine Account” under the Second Mezzanine Loan Agreement within one (1) Business Day after the foregoing transfers have been completed.
(b) If for any reason there will be insufficient amounts in the Mezzanine Debt Service Reserve Account on any Payment Date to pay the Debt Service (First Mezzanine) due on such Payment Date, Mezzanine Borrower shall immediately deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Debt Service Reserve Account. Any failure by Mezzanine Borrower to deposit the full amount required under this by the preceding sentence shall constitute an Event of Default hereunder. If Mezzanine Lender shall reasonably determine that there will be insufficient amounts in the Mezzanine Account to pay any Protective Advances as and when the same are due and payable, Mezzanine Lender shall provide written notice of same to Mezzanine Borrower setting forth the basis for such determination. Within ten (10) Business Days of receipt of said notice, Mezzanine Borrower shall deposit into the Mezzanine Account an amount equal to the shortfall of available funds in the Mezzanine Account. Any failure by Mezzanine Borrower to deposit the full amount required by the preceding sentence within said ten (10) Business Day period shall constitute an Event of Default hereunder.
(c) Mezzanine Lender (so long as Mezzanine Lender is not the same entity as Mortgage Lender) agrees to deliver to Mortgage Lender a monthly notice letter (the First Mezzanine Lender Monthly Debt Service Notice as described in the Loan Agreement (Mortgage)) at least five (5) Business Days prior to each Payment Date setting forth the Debt Service (First Mezzanine) payable by Mezzanine Borrower on the first Payment Date occurring after the date such notice is delivered.
(d) Mezzanine Borrower hereby acknowledges that, pursuant to Section 3.1.6 have been made 3.1.7 of the Loan Agreement (Mortgage), to the extent Mortgage Lender has received a Mezzanine Loan Default Notice and until such time as Mortgage Lender receives a Mezzanine Loan Default Revocation Notice, the term “Net Mortgage Borrower has irrevocably directed that Excess Cash Flow Commencement Date” shall mean the date such amounts have been fully funded and any other payments to be made to Mezzanine Borrower, any Junior Mezzanine Borrower, Mezzanine Lender, or reserved within any Junior Mezzanine Lender are to be deposited directly into the Mezzanine Account for application as provided in this Agreement (in lieu of transferring such funds to such accounts of the Mezzanine Lender, any given calendar monthJunior Mezzanine Lender or Mortgage Borrower as the Mortgage Borrower may have so directed if the Mortgage Lender had not received such notice from Mezzanine Lender). Mezzanine Lender shall promptly provide Mortgage Lender with a Mezzanine Loan Default Revocation Notice if an Event of Default which has occurred under the Mezzanine Loan Documents is no longer continuing and on the date that Mezzanine Lender provides such Mezzanine Loan Default Revocation Notice to Mortgage Lender, any balance in the Mezzanine Account which would have been transferable to the “Mezzanine Account” under the Second Mezzanine Loan Agreement had the subject Mezzanine Loan Default Notice not been in effect shall be promptly transferred by Mezzanine Lender from the Mezzanine Account to the “Mezzanine Account” under the Second Mezzanine Loan Agreement.
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Station Casinos Inc)
