The Note. (a) The Loan shall be evidenced by the Note, in the aggregate original principal amount of the Loan Amount. The Note shall bear interest at the Applicable Interest Rate through and including the Interest Accrual Period in which occurs the Maturity Date. The Note shall be subject to repayment as provided in Section 2.3 hereof, shall be entitled to the benefits of this Agreement and shall be secured by a Pledge granting a first priority Lien on each Borrower’s and certain of its Affiliates’ ownership of the Ownership Interests and by certain of the other Loan Documents. (b) The Borrower shall maintain, or cause to be maintained, a register (the “Register”) at the address to which notices to the Borrower are to be sent hereunder, on which it shall enter the name or names of the registered owner or owners from time to time of the Notes. The Notes (or, if applicable, each Note) may be independently assigned or otherwise transferred in whole or in part (including, without limitation, the sale of any participation interests in the Notes by Lender) by registration of such assignment or transfer on the Register (and the Notes shall expressly so provide). Any assignment or transfer on the Register (and the Notes evidencing the same) may be effected by registration of such assignment or transfer on the Register. At the request of Lender or any designated assignee or transferee of any of the Notes, Borrowers shall (i) issue to Lender or the designated assignee or transferee one or more new Notes in the same aggregate principal amount of the Notes (which Notes may contain components and/or subcomponents of the debt evidenced by such Notes) so assigned or transferred upon delivery to Borrowers of the Notes so assigned or transferred and (ii) reasonably cooperate with Lender in connection with Lender’s assignment of any interest in the Loan. The Register shall be available for inspection by Lender at any reasonable time upon reasonable prior notice. (c) Borrower agrees that it shall, upon request, reasonably cooperate with Lender in connection with any request by Lender to sever the Note into two (2) or more separate substitute notes in an aggregate principal amount equal to the Loan Amount and to reapportion the Loan among such separate substitute notes, including, without limitation, by executing and delivering to Lender new substitute notes to replace the Note, amendments to or replacements of existing Loan Documents to reflect such severance and/or legal opinions with respect to such substitute notes, amendments and/or replacements. Notwithstanding the foregoing, Borrower shall not be required to incur any post-closing costs or expenses relating to the severance of the Note, other than Borrower’s internal costs and expenses and the fees and disbursements of Borrower’s counsel with respect to the issuance of a new enforceability opinion in connection with any such substitute notes. Any such substitute notes may as among themselves be pari passu, senior and subordinate and/or otherwise have varying principal amounts and economic terms, provided, however, that, subject to the effect of any prepayments of such substitute notes after an Event of Default, (i) the weighted average spread applicable to the substitutes notes shall not exceed the Spread, (ii) the economics of the Loan (or severed portions thereof) and other terms of the Loan, taken as a whole, shall not be modified by such fractionalization in a manner which is in any material respect adverse to Borrower (except any increase in the weighted average spread applicable to the substitute notes that may result after prepayments of the Loan have been made after an Event of Default) and (iii) subject only to the terms of Section 2.4.2(C) hereof regarding a Directed Paydown, all voluntary principal prepayments shall be applied ratably among the securities issued in connection with a Mezzanine Loan Securitization and any other interests in the Loan held outside the Mezzanine Loan Securitization. (d) Borrower agrees that, if requested by Lender prior to, or in connection with, a Mezzanine Loan Securitization, the Borrower shall take all actions as are necessary to effect the “resizing” of the Loan, the Senior Loan and/or the First Mezzanine Loan, including any new mezzanine loans that Lender requires Borrower to enter into (provided the documents evidencing and securing such new loan(s) are substantially identical in form and substance to the Loan Documents); and provided further that Lender is then the holder of the Senior Loan, the First Mezzanine Loan and/or the Loan that is subject to the resizing. In such event, Borrower and Lender agree that if the principal amount of the Loan were to be increased (or a new mezzanine loan or loans are created) and, as a result, the principal amount of the Senior Loan and/or the First Mezzanine Loan were decreased, (i) the Borrower shall cause the borrowers under the Senior Loan and/or the First Mezzanine Loan and any such new mezzanine loan(s) to comply with its agreements to effect a “resizing”, and (ii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the borrower under the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s) (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s)) such additional amount equal to the amount of the principal increase/reduction of the Loan provided that Borrower and applicable borrower(s) under the Senior Loan and/or the First Mezzanine Loan execute and deliver any and all necessary amendments or modifications to the Loan Documents, organizational documents (including the creation of a new mezzanine borrower or borrowers) and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents. In addition, Borrower and Lender agree that if the principal amount of any of the Senior Loan and/or the First Mezzanine Loan were to be decreased and, as a result, the Loan Amount were increased, then (i) if “resizing” to decrease the size of the Senior Loan and/or the First Mezzanine Loan and increase the size of the Loan, each of them shall take all actions as are necessary to effect the “resizing” of the Loan and the Senior Loan and/or the First Mezzanine Loan, (ii) Borrower shall cause the applicable borrower(s) under the Senior Loan and/or the First Mezzanine Loan to comply with its agreements to effect a “resizing” and (iii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the Borrower (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Mezzanine Loan an additional amount equal to the amount of principal reduction of the Senior Loan and/or the First Mezzanine Loan, provided that Borrower, Property Owner and/or First Mezzanine Borrower and any new mezzanine borrowers execute and deliver any and all necessary modifications to the Loan Documents, the Senior Loan Documents and/or First Mezzanine Loan Documents. In connection with the foregoing, Borrower agrees, at Lender’s sole cost and expense, to execute and deliver such documents and other agreements reasonably required by Lender, as holder of the applicable promissory note(s), to “re-size” the Loan, the Senior Loan and/or the First Mezzanine Loan, including, without limitation, an amendment to this Agreement, the Note, the Pledge Agreement, the other Loan Documents and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents, an endorsement to the Title Policy reflecting any increase in the insured amount thereunder (if applicable), an amendment to or replacement of the Rate Cap Agreement for the Loan, the Senior Loan and/or the First Mezzanine Loan which is being resized reflecting the appropriate modification to the notional amount thereunder, and an endorsement to the UCC title policies and, if applicable, mezzanine endorsements and related title letters, for the Loan and/or the First Mezzanine Loan which is being resized, reflecting the appropriate modification to the insured amount thereunder. Lender agrees to reimburse Borrower for all reasonable out-of-pocket costs and expenses (including, without limitation, reasonable attorney’s fees) incurred by Borrower in connection with any “resizing” of the Loan. Notwithstanding the foregoing, Lender agrees that any “resizing” of the Loan shall not change the economics of the Loan, the Senior Loan and/or the First Mezzanine Loan taken as a whole in a manner which is in any material respect adverse to Borrower, Property Owner and/or First Mezzanine Borrower.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Strategic Hotel Capital Inc)
The Note. (a) The Borrowers' obligation to pay the principal of, and interest on, the Loan shall be evidenced by the promissory note (as amended, modified, supplemented, extended or consolidated, the "Note, ") duly executed and delivered by Borrowers substantially in the aggregate original principal amount form of the Loan Amount. The Note shall bear interest at the Applicable Interest Rate through and including the Interest Accrual Period Exhibit A hereto in which occurs the Maturity Date. The Note shall be subject to repayment as provided in Section 2.3 hereof, shall be entitled to the benefits of this Agreement and shall be secured by a Pledge granting a first priority Lien on each Borrower’s and certain of its Affiliates’ ownership of the Ownership Interests and by certain of the other Loan Documents.
(b) The Borrower shall maintain, or cause to be maintained, a register (the “Register”) at the address to which notices to the Borrower are to be sent hereunder, on which it shall enter the name or names of the registered owner or owners from time to time of the Notes. The Notes (or, if applicable, each Note) may be independently assigned or otherwise transferred in whole or in part (including, without limitation, the sale of any participation interests in the Notes by Lender) by registration of such assignment or transfer on the Register (and the Notes shall expressly so provide). Any assignment or transfer on the Register (and the Notes evidencing the same) may be effected by registration of such assignment or transfer on the Register. At the request of Lender or any designated assignee or transferee of any of the Notes, Borrowers shall (i) issue to Lender or the designated assignee or transferee one or more new Notes in the same aggregate principal amount of the Notes (which Notes may contain components and/or subcomponents of the debt evidenced by such Notes) so assigned or transferred upon delivery to Borrowers of the Notes so assigned or transferred and (ii) reasonably cooperate with Lender in connection with Lender’s assignment of any interest in the Loan. The Register shall be available for inspection by Lender at any reasonable time upon reasonable prior notice.
(c) Borrower agrees that it shall, upon request, reasonably cooperate with Lender in connection with any request by Lender to sever the Note into two (2) or more separate substitute notes in an aggregate principal amount equal to the Loan Amount Amount, with blanks appropriately completed in conformity herewith. The Note shall (i) be payable to the order of Agent, and the Lenders, (ii) be dated the Closing Date, and (iii) mature on the Maturity Date. If required by a Lender, Borrowers hereby agree to reapportion execute a supplemental Note in the principal amount of such Lender's Pro Rata Share of the Loan among Amount substantially in the form of Exhibit A hereto, with blanks appropriately completed, and such separate substitute notessupplemental Note shall (i) be payable to order of such Lender, including, without limitation, by executing and delivering to Lender new substitute notes to replace the Note, amendments to or replacements of existing Loan Documents to reflect such severance and/or legal opinions with respect to such substitute notes, amendments and/or replacements. Notwithstanding the foregoing, Borrower shall not (ii) be required to incur any post-closing costs or expenses relating to the severance dated as of the NoteClosing Date, other than Borrower’s internal costs and expenses (iii) mature on the Maturity Date. Such supplemental Note shall provide that it evidences a portion of the existing indebtedness hereunder and the fees and disbursements not any new or additional indebtedness of Borrower’s counsel with respect to the issuance of a new enforceability opinion in connection with any such substitute notes. Any such substitute notes may as among themselves be pari passuBorrowers.
(b) Agent is hereby authorized, senior and subordinate and/or otherwise have varying principal amounts and economic terms, provided, however, that, subject to the effect of any prepayments of such substitute notes after an Event of Defaultat its option, (i) to endorse on the weighted average spread applicable schedule attached to each Note (or on a continuation of such schedule attached to each such Note and made a part thereof) an appropriate notation evidencing the substitutes notes shall not exceed date and amount of each Advance evidenced thereby and the SpreadPro Rata Share thereof of each Lender, and the date and amount of each principal and interest payment in respect thereof, and/or (ii) to record such Advances and such payments in its books and records. Such schedule or such books and records, as the economics of the Loan (or severed portions thereof) and other terms of the Loan, taken as a wholecase may be, shall not be modified by such fractionalization in a manner which is in any material respect adverse to conclusive and binding on Borrower (except any increase in the weighted average spread applicable to the substitute notes that may result after prepayments of the Loan have been made after an Event of Default) and (iii) subject only to the terms of Section 2.4.2(C) hereof regarding a Directed Paydown, all voluntary principal prepayments shall be applied ratably among the securities issued in connection with a Mezzanine Loan Securitization and any other interests in the Loan held outside the Mezzanine Loan Securitization.
(d) Borrower agrees that, if requested by Lender prior to, or in connection with, a Mezzanine Loan Securitization, the Borrower shall take all actions as are necessary to effect the “resizing” of the Loan, the Senior Loan and/or the First Mezzanine Loan, including any new mezzanine loans that Lender requires Borrower to enter into (provided the documents evidencing and securing such new loan(s) are substantially identical in form and substance to the Loan Documents); and provided further that Lender is then the holder of the Senior Loan, the First Mezzanine Loan and/or the Loan that is subject to the resizing. In such event, Borrower and Lender agree that if the principal amount of the Loan were to be increased (or a new mezzanine loan or loans are created) and, as a result, the principal amount of the Senior Loan and/or the First Mezzanine Loan were decreased, (i) the Borrower shall cause the borrowers under the Senior Loan and/or the First Mezzanine Loan and any such new mezzanine loan(s) to comply with its agreements to effect a “resizing”, and (ii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the borrower under the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s) (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s)) such additional amount equal to the amount of the principal increase/reduction of the Loan provided that Borrower and applicable borrower(s) under the Senior Loan and/or the First Mezzanine Loan execute and deliver any and all necessary amendments or modifications to the Loan Documents, organizational documents (including the creation of a new mezzanine borrower or borrowers) and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents. In addition, Borrower and Lender agree that if the principal amount of any of the Senior Loan and/or the First Mezzanine Loan were to be decreased and, as a result, the Loan Amount were increased, then (i) if “resizing” to decrease the size of the Senior Loan and/or the First Mezzanine Loan and increase the size of the Loan, each of them shall take all actions as are necessary to effect the “resizing” of the Loan and the Senior Loan and/or the First Mezzanine Loan, (ii) Borrower shall cause the applicable borrower(s) under the Senior Loan and/or the First Mezzanine Loan to comply with its agreements to effect a “resizing” and (iii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the Borrower (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Mezzanine Loan an additional amount equal to the amount of principal reduction of the Senior Loan and/or the First Mezzanine Loanabsent manifest error, provided that Borrower, Property Owner and/or First Mezzanine Borrower and the failure to make any new mezzanine borrowers execute and deliver any and all necessary modifications to the Loan Documents, the Senior Loan Documents and/or First Mezzanine Loan Documents. In connection with the foregoing, Borrower agrees, at Lender’s sole cost and expense, to execute and deliver such documents and other agreements reasonably required by Lender, as holder of the applicable promissory note(s), to “re-size” the Loan, the Senior Loan and/or the First Mezzanine Loan, including, without limitation, an amendment to this Agreement, the Note, the Pledge Agreement, the other Loan Documents and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents, an endorsement to the Title Policy reflecting any increase in the insured amount thereunder (if applicable), an amendment to or replacement of the Rate Cap Agreement for the Loan, the Senior Loan and/or the First Mezzanine Loan which is being resized reflecting the appropriate modification to the notional amount thereunder, and an endorsement to the UCC title policies and, if applicable, mezzanine endorsements and related title letters, for the Loan and/or the First Mezzanine Loan which is being resized, reflecting the appropriate modification to the insured amount thereunder. Lender agrees to reimburse Borrower for all reasonable out-of-pocket costs and expenses (including, without limitation, reasonable attorney’s fees) incurred by Borrower in connection with any “resizing” of the Loan. Notwithstanding the foregoing, Lender agrees that any “resizing” of the Loan notation shall not change affect the economics obligations of Borrowers, or the Loan, the Senior Loan and/or the First Mezzanine Loan taken as a whole in a manner which is in rights of any material respect adverse to Borrower, Property Owner and/or First Mezzanine BorrowerLender hereunder.
Appears in 1 contract
The Note. (ai) The Loan Borrower’s obligation to pay the principal of and interest on all amounts advanced byUpon the request of the Lender pursuant to the Fundings shall be evidenced by by, the NoteBorrower shall prepare, in execute and deliver to the aggregate original principal amount Lender a variable funding note of the Loan Amount. The Note shall bear interest at the Applicable Interest Rate through and including the Interest Accrual Period Borrower in which occurs the Maturity Date. The Note shall be subject to repayment as provided in Section 2.3 hereof, shall be entitled to the benefits of this Agreement and shall be secured by a Pledge granting a first priority Lien on each Borrower’s and certain of its Affiliates’ ownership favor of the Ownership Interests and by certain of the other Loan Documents.
(b) The Borrower shall maintain, or cause to be maintained, a register Lender (the “RegisterNote”) at which shall: (1) be dated the address to which notices to the Borrower are to be sent hereunder, on which it shall enter the name or names of the registered owner or owners from time to time of the NotesFifth Amendment No. The Notes (or, if applicable, each Note) may be independently assigned or otherwise transferred in whole or in part (including, without limitation, the sale of any participation interests in the Notes by Lender) by registration of such assignment or transfer on the Register (and the Notes shall expressly so provide). Any assignment or transfer on the Register (and the Notes evidencing the same) may be effected by registration of such assignment or transfer on the Register. At the request of Lender or any designated assignee or transferee of any of the Notes, Borrowers shall (i) issue to Lender or the designated assignee or transferee one or more new Notes in the same aggregate principal amount of the Notes (which Notes may contain components and/or subcomponents of the debt evidenced by such Notes) so assigned or transferred upon delivery to Borrowers of the Notes so assigned or transferred and (ii) reasonably cooperate with Lender in connection with Lender’s assignment of any interest in the Loan. The Register shall be available for inspection by Lender at any reasonable time upon reasonable prior notice.
(c) Borrower agrees that it shall, upon request, reasonably cooperate with Lender in connection with any request by Lender to sever the Note into two 8 Effective Date; (2) or more separate substitute notes be in an aggregate the stated principal amount equal to the Loan Amount and Commitment amount for the Lender (as reflected from time to reapportion time on the Loan among such separate substitute notes, including, without limitation, by executing and delivering to Lender new substitute notes to replace the Note, amendments to or replacements of existing Loan Documents to reflect such severance and/or legal opinions with respect to such substitute notes, amendments and/or replacements. Notwithstanding the foregoing, Borrower shall not grid attached thereto); (3) bear interest as provided therein; (4) be required to incur any post-closing costs or expenses relating payable to the severance order of the Lender, and mature (whether or not there are funds available therefor at such time, pursuant to Section 2.7 or otherwise) on December 1627, 20252027 (the “Maturity Date”); and (5) be substantially in the form of Exhibit I hereto, with blanks appropriately completed in conformity herewith. The Lender may, and is hereby authorized to, make a notation on the schedule attached to the Note of the date and the amount of the Fundings and the date and amount of the payment of principal thereon, and prior to any transfer of the Note, other than Borrowerthe Lender shall endorse the outstanding principal amount of the Note on the schedule attached thereto; provided, however, that failure to make such notation shall not adversely affect the Lender’s internal costs and expenses and the fees and disbursements of Borrower’s counsel rights with respect to the issuance of a new enforceability opinion in connection with any such substitute notes. Any such substitute notes may as among themselves be pari passu, senior and subordinate and/or otherwise have varying principal amounts and economic terms, provided, however, that, subject to the effect of any prepayments of such substitute notes after an Event of Default, (i) the weighted average spread applicable to the substitutes notes shall not exceed the Spread, Note.
(ii) Although the economics of the Loan (or severed portions thereof) and other terms of the Loan, taken as a whole, shall not be modified by such fractionalization in a manner which is in any material respect adverse to Borrower (except any increase in the weighted average spread applicable to the substitute notes that may result after prepayments of the Loan have been made after an Event of Default) and (iii) subject only to the terms of Section 2.4.2(C) hereof regarding a Directed Paydown, all voluntary principal prepayments Note shall be applied ratably among dated the securities issued Amendment No. 8 Effective Date, interest in connection with a Mezzanine Loan Securitization and any other interests in respect thereof shall be payable only for the Loan held outside the Mezzanine Loan Securitization.
(d) Borrower agrees that, if requested by Lender prior to, or in connection with, a Mezzanine Loan Securitization, the Borrower shall take all actions as periods during which amounts are necessary to effect the “resizing” of the Loan, the Senior Loan and/or the First Mezzanine Loan, including any new mezzanine loans that Lender requires Borrower to enter into (provided the documents evidencing and securing such new loan(s) are substantially identical in form and substance to the Loan Documents); and provided further that Lender is then the holder of the Senior Loan, the First Mezzanine Loan and/or the Loan that is subject to the resizingoutstanding thereunder. In such eventaddition, Borrower and Lender agree that if although the stated principal amount of the Loan were Note shall be equal to the Commitment amount of the Lender, such Note shall be increased (or a new mezzanine loan or loans are created) and, as a result, enforceable with respect to the Borrower’s obligation to pay the principal thereof only to the extent of the unpaid principal amount of the Senior Loan and/or the First Mezzanine Loan were decreased, (i) the Borrower shall cause the borrowers under the Senior Loan and/or the First Mezzanine Loan Capital and any such new mezzanine loan(s) to comply with its agreements to effect a “resizing”, and (ii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the borrower under the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s) (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s)) such additional amount equal to the amount of the principal increase/reduction of the Loan provided that Borrower and applicable borrower(s) under the Senior Loan and/or the First Mezzanine Loan execute and deliver any Interest and all necessary amendments or modifications to other amounts outstanding hereunder and thereunder at the Loan Documents, organizational documents (including the creation of a new mezzanine borrower or borrowers) and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents. In addition, Borrower and Lender agree that if the principal amount of any of the Senior Loan and/or the First Mezzanine Loan were to time such enforcement shall be decreased and, as a result, the Loan Amount were increased, then (i) if “resizing” to decrease the size of the Senior Loan and/or the First Mezzanine Loan and increase the size of the Loan, each of them shall take all actions as are necessary to effect the “resizing” of the Loan and the Senior Loan and/or the First Mezzanine Loan, (ii) Borrower shall cause the applicable borrower(s) under the Senior Loan and/or the First Mezzanine Loan to comply with its agreements to effect a “resizing” and (iii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the Borrower (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Mezzanine Loan an additional amount equal to the amount of principal reduction of the Senior Loan and/or the First Mezzanine Loan, provided that Borrower, Property Owner and/or First Mezzanine Borrower and any new mezzanine borrowers execute and deliver any and all necessary modifications to the Loan Documents, the Senior Loan Documents and/or First Mezzanine Loan Documents. In connection with the foregoing, Borrower agrees, at Lender’s sole cost and expense, to execute and deliver such documents and other agreements reasonably required by Lender, as holder of the applicable promissory note(s), to “re-size” the Loan, the Senior Loan and/or the First Mezzanine Loan, including, without limitation, an amendment to this Agreement, the Note, the Pledge Agreement, the other Loan Documents and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents, an endorsement to the Title Policy reflecting any increase in the insured amount thereunder (if applicable), an amendment to or replacement of the Rate Cap Agreement for the Loan, the Senior Loan and/or the First Mezzanine Loan which is being resized reflecting the appropriate modification to the notional amount thereunder, and an endorsement to the UCC title policies and, if applicable, mezzanine endorsements and related title letters, for the Loan and/or the First Mezzanine Loan which is being resized, reflecting the appropriate modification to the insured amount thereunder. Lender agrees to reimburse Borrower for all reasonable out-of-pocket costs and expenses (including, without limitation, reasonable attorney’s fees) incurred by Borrower in connection with any “resizing” of the Loan. Notwithstanding the foregoing, Lender agrees that any “resizing” of the Loan shall not change the economics of the Loan, the Senior Loan and/or the First Mezzanine Loan taken as a whole in a manner which is in any material respect adverse to Borrower, Property Owner and/or First Mezzanine Borrowersought.
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corp)
The Note. (ai) The Loan Issuer's obligation to pay the principal of and interest on all amounts advanced by the Company pursuant to any Funding shall be evidenced by a single note of the Note, Issuer (the "NOTE") which shall (1) be dated the Closing Date; (2) be in the aggregate original stated principal amount equal to the Facility Limit (as reflected from time to time on the grid attached thereto); (3) bear interest as provided therein; (4) be payable to the order of the Loan Amount. The Note shall bear interest at Company and mature on the Applicable Interest Rate through and including Remittance Date occurring in the Interest Accrual Period third calendar month following the calendar month in which occurs the Maturity latest maturing Receivable (determined as of the Termination Date. The Note shall be subject ) is scheduled to repayment as provided in Section 2.3 hereof, shall mature (without regard to extensions subsequently granted on any Receivable by the Issuer or any servicing agent); (5) be entitled to the benefits of the Surety Bond and the Security Agreement; and (6) be substantially in the form of Exhibit A to this Agreement Agreement, with blanks appropriately completed in conformity herewith. The Company shall, and shall be secured by is hereby authorized to, make a Pledge granting a first priority Lien notation on each Borrower’s and certain of its Affiliates’ ownership the schedule attached to the Note of the Ownership Interests date and by certain the amount of each Funding and the date and amount of the other Loan Documents.
(b) The Borrower shall maintainpayment of principal thereon, or cause and prior to be maintained, a register (the “Register”) at the address to which notices to the Borrower are to be sent hereunder, on which it shall enter the name or names any transfer of the registered owner or owners from time to time of the Notes. The Notes (or, if applicable, each Note) may be independently assigned or otherwise transferred in whole or in part (including, without limitation, the sale of any participation interests in Company shall endorse the Notes by Lender) by registration of such assignment or transfer on the Register (and the Notes shall expressly so provide). Any assignment or transfer on the Register (and the Notes evidencing the same) may be effected by registration of such assignment or transfer on the Register. At the request of Lender or any designated assignee or transferee of any of the Notes, Borrowers shall (i) issue to Lender or the designated assignee or transferee one or more new Notes in the same aggregate outstanding principal amount of the Notes (which Notes may contain components and/or subcomponents of Note on the debt evidenced by schedule attached thereto; PROVIDED, HOWEVER, that failure to make such Notes) so assigned or transferred upon delivery to Borrowers of the Notes so assigned or transferred and (ii) reasonably cooperate with Lender in connection with Lender’s assignment of any interest in the Loan. The Register shall be available for inspection by Lender at any reasonable time upon reasonable prior notice.
(c) Borrower agrees that it shall, upon request, reasonably cooperate with Lender in connection with any request by Lender to sever the Note into two (2) or more separate substitute notes in an aggregate principal amount equal to the Loan Amount and to reapportion the Loan among such separate substitute notes, including, without limitation, by executing and delivering to Lender new substitute notes to replace the Note, amendments to or replacements of existing Loan Documents to reflect such severance and/or legal opinions with respect to such substitute notes, amendments and/or replacements. Notwithstanding the foregoing, Borrower notation shall not be required to incur any post-closing costs or expenses relating to adversely affect the severance of the Note, other than Borrower’s internal costs and expenses and the fees and disbursements of Borrower’s counsel Company's rights with respect to the issuance of a new enforceability opinion in connection with any such substitute notes. Any such substitute notes may as among themselves be pari passu, senior and subordinate and/or otherwise have varying principal amounts and economic terms, provided, however, that, subject to the effect of any prepayments of such substitute notes after an Event of Default, (i) the weighted average spread applicable to the substitutes notes shall not exceed the Spread, Note.
(ii) Although the economics of the Loan (or severed portions thereof) and other terms of the Loan, taken as a whole, shall not be modified by such fractionalization in a manner which is in any material respect adverse to Borrower (except any increase in the weighted average spread applicable to the substitute notes that may result after prepayments of the Loan have been made after an Event of Default) and (iii) subject only to the terms of Section 2.4.2(C) hereof regarding a Directed Paydown, all voluntary principal prepayments Note shall be applied ratably among dated the securities issued Closing Date, interest in connection with a Mezzanine Loan Securitization respect thereof shall be payable only for the periods during which amounts are outstanding thereunder and any other interests in the Loan held outside the Mezzanine Loan Securitization.
(d) Borrower agrees that, if requested by Lender prior to, or in connection with, a Mezzanine Loan Securitization, the Borrower shall take all actions on such amounts as are necessary to effect outstanding thereunder. Although the “resizing” of the Loan, the Senior Loan and/or the First Mezzanine Loan, including any new mezzanine loans that Lender requires Borrower to enter into (provided the documents evidencing and securing such new loan(s) are substantially identical in form and substance to the Loan Documents); and provided further that Lender is then the holder of the Senior Loan, the First Mezzanine Loan and/or the Loan that is subject to the resizing. In such event, Borrower and Lender agree that if the stated principal amount of the Loan were Note shall be equal to be increased (or a new mezzanine loan or loans are created) and, as a resultthe Facility Limit, the Note shall be enforceable with respect to the Issuer's obligation to pay the principal thereof only to the extent of the unpaid principal amount of the Senior Loan and/or Fundings outstanding thereunder at the First Mezzanine Loan were decreased, (i) the Borrower time such enforcement shall cause the borrowers under the Senior Loan and/or the First Mezzanine Loan and any such new mezzanine loan(s) to comply with its agreements to effect a “resizing”, and (ii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the borrower under the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s) (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s)) such additional amount equal to the amount of the principal increase/reduction of the Loan provided that Borrower and applicable borrower(s) under the Senior Loan and/or the First Mezzanine Loan execute and deliver any and all necessary amendments or modifications to the Loan Documents, organizational documents (including the creation of a new mezzanine borrower or borrowers) and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents. In addition, Borrower and Lender agree that if the principal amount of any of the Senior Loan and/or the First Mezzanine Loan were to be decreased and, as a result, the Loan Amount were increased, then (i) if “resizing” to decrease the size of the Senior Loan and/or the First Mezzanine Loan and increase the size of the Loan, each of them shall take all actions as are necessary to effect the “resizing” of the Loan and the Senior Loan and/or the First Mezzanine Loan, (ii) Borrower shall cause the applicable borrower(s) under the Senior Loan and/or the First Mezzanine Loan to comply with its agreements to effect a “resizing” and (iii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the Borrower (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Mezzanine Loan an additional amount equal to the amount of principal reduction of the Senior Loan and/or the First Mezzanine Loan, provided that Borrower, Property Owner and/or First Mezzanine Borrower and any new mezzanine borrowers execute and deliver any and all necessary modifications to the Loan Documents, the Senior Loan Documents and/or First Mezzanine Loan Documents. In connection with the foregoing, Borrower agrees, at Lender’s sole cost and expense, to execute and deliver such documents and other agreements reasonably required by Lender, as holder of the applicable promissory note(s), to “re-size” the Loan, the Senior Loan and/or the First Mezzanine Loan, including, without limitation, an amendment to this Agreement, the Note, the Pledge Agreement, the other Loan Documents and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents, an endorsement to the Title Policy reflecting any increase in the insured amount thereunder (if applicable), an amendment to or replacement of the Rate Cap Agreement for the Loan, the Senior Loan and/or the First Mezzanine Loan which is being resized reflecting the appropriate modification to the notional amount thereunder, and an endorsement to the UCC title policies and, if applicable, mezzanine endorsements and related title letters, for the Loan and/or the First Mezzanine Loan which is being resized, reflecting the appropriate modification to the insured amount thereunder. Lender agrees to reimburse Borrower for all reasonable out-of-pocket costs and expenses (including, without limitation, reasonable attorney’s fees) incurred by Borrower in connection with any “resizing” of the Loan. Notwithstanding the foregoing, Lender agrees that any “resizing” of the Loan shall not change the economics of the Loan, the Senior Loan and/or the First Mezzanine Loan taken as a whole in a manner which is in any material respect adverse to Borrower, Property Owner and/or First Mezzanine Borrowersought.
Appears in 1 contract
Samples: Note Purchase Agreement (First Investors Financial Services Group Inc)
The Note. (a) The Borrower's obligation to pay the principal of, and interest on, the Loan shall be evidenced by the promissory note (as amended, modified, supplemented, extended or consolidated, the "Note, ") duly executed and delivered by Borrower substantially in the aggregate original form of Exhibit "B" hereto in a principal amount of equal to the Loan Facility Amount, with blanks appropriately completed in conformity herewith. The Note shall bear interest at (i) be payable to the Applicable Interest Rate through order of Agent, Lender and including the Interest Accrual Period in which occurs Co-Lenders, (ii) be dated the Closing Date, and (iii) mature on the Maturity Date. The If required by a Co-Lender that is not a Co-Lender as of the date hereof, Borrower hereby agrees to execute a supplemental Note in the principal amount of such Co-Lender's pro rata share of the Facility Amount substantially in the form of Exhibit "B" hereto, with blanks appropriately completed, and such supplemental Note shall (i) be subject payable to repayment order of Agent, on account of such Co-Lender, (ii) be dated as provided in Section 2.3 hereof, shall be entitled to the benefits of this Agreement and shall be secured by a Pledge granting a first priority Lien on each Borrower’s and certain of its Affiliates’ ownership of the Ownership Interests Closing Date, and by certain (iii) mature on the Maturity Date. Such supplemental Note shall evidence a portion of the other Loan Documentsexisting indebtedness hereunder and not any new or additional indebtedness of Borrower.
(b) The Borrower shall maintainAgent is hereby authorized, at its option, (i) to endorse on the schedule attached to each Note (or cause to be maintained, on a register (the “Register”) at the address to which notices to the Borrower are to be sent hereunder, on which it shall enter the name or names of the registered owner or owners from time to time of the Notes. The Notes (or, if applicable, each Note) may be independently assigned or otherwise transferred in whole or in part (including, without limitation, the sale of any participation interests in the Notes by Lender) by registration continuation of such assignment or transfer on schedule attached to each such Note and made a part thereof) an appropriate notation evidencing the Register (date and amount of each Advance evidenced thereby and the Notes shall expressly so provide). Any assignment or transfer on the Register (pro rata share thereof of each Co-Lender, and the Notes evidencing date and amount of each principal and interest payment in respect thereof, and/or (ii) to record such Advances and such payments in its books and records. Such schedule or such books and records, as the same) case may be, shall be effected by registration conclusive and binding on Borrower absent manifest error, provided that the failure to make any notation shall not affect the obligations of such assignment Borrower or transfer on any Guarantor or the Register. At the request rights of Lender or any designated assignee Co-Lender hereunder or transferee of any of the Notes, Borrowers shall (i) issue to Lender or the designated assignee or transferee one or more new Notes in the same aggregate principal amount of the Notes (which Notes may contain components and/or subcomponents of the debt evidenced by such Notes) so assigned or transferred upon delivery to Borrowers of the Notes so assigned or transferred and (ii) reasonably cooperate with Lender in connection with Lender’s assignment of any interest in the Loan. The Register shall be available for inspection by Lender at any reasonable time upon reasonable prior notice.
(c) Borrower agrees that it shall, upon request, reasonably cooperate with Lender in connection with any request by Lender to sever the Note into two (2) or more separate substitute notes in an aggregate principal amount equal to the Loan Amount and to reapportion the Loan among such separate substitute notes, including, without limitation, by executing and delivering to Lender new substitute notes to replace the Note, amendments to or replacements of existing Loan Documents to reflect such severance and/or legal opinions with respect to such substitute notes, amendments and/or replacements. Notwithstanding the foregoing, Borrower shall not be required to incur any post-closing costs or expenses relating to the severance of the Note, other than Borrower’s internal costs and expenses and the fees and disbursements of Borrower’s counsel with respect to the issuance of a new enforceability opinion in connection with any such substitute notes. Any such substitute notes may as among themselves be pari passu, senior and subordinate and/or otherwise have varying principal amounts and economic terms, provided, however, that, subject to the effect of any prepayments of such substitute notes after an Event of Default, (i) the weighted average spread applicable to the substitutes notes shall not exceed the Spread, (ii) the economics of the Loan (or severed portions thereof) and other terms of the Loan, taken as a whole, shall not be modified by such fractionalization in a manner which is in any material respect adverse to Borrower (except any increase in the weighted average spread applicable to the substitute notes that may result after prepayments of the Loan have been made after an Event of Default) and (iii) subject only to the terms of Section 2.4.2(C) hereof regarding a Directed Paydown, all voluntary principal prepayments shall be applied ratably among the securities issued in connection with a Mezzanine Loan Securitization and any other interests in the Loan held outside the Mezzanine Loan Securitization.
(d) Borrower agrees that, if requested by Lender prior to, or in connection with, a Mezzanine Loan Securitization, the Borrower shall take all actions as are necessary to effect the “resizing” of the Loan, the Senior Loan and/or the First Mezzanine Loan, including any new mezzanine loans that Lender requires Borrower to enter into (provided the documents evidencing and securing such new loan(s) are substantially identical in form and substance to the Loan Documents); and provided further that Lender is then the holder of the Senior Loan, the First Mezzanine Loan and/or the Loan that is subject to the resizing. In such event, Borrower and Lender agree that if the principal amount of the Loan were to be increased (or a new mezzanine loan or loans are created) and, as a result, the principal amount of the Senior Loan and/or the First Mezzanine Loan were decreased, (i) the Borrower shall cause the borrowers under the Senior Loan and/or the First Mezzanine Loan and any such new mezzanine loan(s) to comply with its agreements to effect a “resizing”, and (ii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the borrower under the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s) (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s)) such additional amount equal to the amount of the principal increase/reduction of the Loan provided that Borrower and applicable borrower(s) under the Senior Loan and/or the First Mezzanine Loan execute and deliver any and all necessary amendments or modifications to the Loan Documents, organizational documents (including the creation of a new mezzanine borrower or borrowers) and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents. In addition, Borrower and Lender agree that if the principal amount of any of the Senior Loan and/or the First Mezzanine Loan were to be decreased and, as a result, the Loan Amount were increased, then (i) if “resizing” to decrease the size of the Senior Loan and/or the First Mezzanine Loan and increase the size of the Loan, each of them shall take all actions as are necessary to effect the “resizing” of the Loan and the Senior Loan and/or the First Mezzanine Loan, (ii) Borrower shall cause the applicable borrower(s) under the Senior Loan and/or the First Mezzanine Loan to comply with its agreements to effect a “resizing” and (iii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the Borrower (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Mezzanine Loan an additional amount equal to the amount of principal reduction of the Senior Loan and/or the First Mezzanine Loan, provided that Borrower, Property Owner and/or First Mezzanine Borrower and any new mezzanine borrowers execute and deliver any and all necessary modifications to the Loan Documents, the Senior Loan Documents and/or First Mezzanine Loan Documents. In connection with the foregoing, Borrower agrees, at Lender’s sole cost and expense, to execute and deliver such documents and other agreements reasonably required by Lender, as holder of the applicable promissory note(s), to “re-size” the Loan, the Senior Loan and/or the First Mezzanine Loan, including, without limitation, an amendment to this Agreement, the Note, the Pledge Agreement, the other Loan Documents and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents, an endorsement to the Title Policy reflecting any increase in the insured amount thereunder (if applicable), an amendment to or replacement of the Rate Cap Agreement for the Loan, the Senior Loan and/or the First Mezzanine Loan which is being resized reflecting the appropriate modification to the notional amount thereunder, and an endorsement to the UCC title policies and, if applicable, mezzanine endorsements and related title letters, for the Loan and/or the First Mezzanine Loan which is being resized, reflecting the appropriate modification to the insured amount thereunder. Lender agrees to reimburse Borrower for all reasonable out-of-pocket costs and expenses (including, without limitation, reasonable attorney’s fees) incurred by Borrower in connection with any “resizing” of the Loan. Notwithstanding the foregoing, Lender agrees that any “resizing” of the Loan shall not change the economics of the Loan, the Senior Loan and/or the First Mezzanine Loan taken as a whole in a manner which is in any material respect adverse to Borrower, Property Owner and/or First Mezzanine BorrowerGuaranty.
Appears in 1 contract
The Note. (a) The Borrower's and the REIT's obligation -------- to pay the principal of, and interest on, the Loan shall be evidenced by the promissory note (as amended, modified, supplemented, extended or consolidated, the "Note, ") duly executed and delivered by Borrower and the REIT substantially in the aggregate original form of Exhibit "B" hereto in a principal amount of equal to the Loan AmountFacility Amount with blanks appropriately completed in conformity herewith. The Note shall bear interest at (i) be payable to the Applicable Interest Rate through order of Agent, on behalf of the Co-Lenders, (ii) be dated the Closing Date, and including the Interest Accrual Period in which occurs (iii) mature on the Maturity Date. The If required by a Co-Lender that is not a Co-Lender as of the date hereof, Borrower and the REIT hereby agree to execute a supplemental Note in the principal amount of such Co-Lender's pro rata share of the Facility Amount, substantially in the form of Exhibit "B" hereto, with blanks appropriately completed, and such supplemental Note shall (i) be subject payable to repayment order of Agent, on account of such Co-Lender, (ii) be dated as provided in Section 2.3 hereof, shall be entitled to the benefits of this Agreement and shall be secured by a Pledge granting a first priority Lien on each Borrower’s and certain of its Affiliates’ ownership of the Ownership Interests Closing Date, and by certain (iii) mature on the Maturity Date. Such supplemental Note shall provide that it evidences a portion of the other Loan Documentsexisting indebtedness hereunder and not any new or additional indebtedness of Borrower or the REIT.
(b) The Borrower shall maintainAgent is hereby authorized, at its option, (i) to endorse on the schedule attached to each Note (or cause to be maintained, on a register (the “Register”) at the address to which notices to the Borrower are to be sent hereunder, on which it shall enter the name or names of the registered owner or owners from time to time of the Notes. The Notes (or, if applicable, each Note) may be independently assigned or otherwise transferred in whole or in part (including, without limitation, the sale of any participation interests in the Notes by Lender) by registration continuation of such assignment or transfer on schedule attached to each such Note and made a part thereof) an appropriate notation evidencing the Register (date and amount of each Advance evidenced thereby and the Notes shall expressly so provide). Any assignment or transfer on the Register (pro rata share thereof of each Co-Lender, and the Notes evidencing date and amount of each principal and interest payment in respect thereof, and/or (ii) to record such Advances and such payments in its books and records. Such schedule or such books and records, as the same) case may be, shall be effected by registration conclusive and binding on Borrower and the REIT absent manifest error, provided that the failure to make any notation shall not affect the obligations of such assignment Borrower, any Guarantor or transfer on the Register. At REIT or the request rights of Lender or any designated assignee Co-Lender hereunder or transferee of any of the Notes, Borrowers shall (i) issue to Lender or the designated assignee or transferee one or more new Notes in the same aggregate principal amount of the Notes (which Notes may contain components and/or subcomponents of the debt evidenced by such Notes) so assigned or transferred upon delivery to Borrowers of the Notes so assigned or transferred and (ii) reasonably cooperate with Lender in connection with Lender’s assignment of any interest in the Loan. The Register shall be available for inspection by Lender at any reasonable time upon reasonable prior notice.
(c) Borrower agrees that it shall, upon request, reasonably cooperate with Lender in connection with any request by Lender to sever the Note into two (2) or more separate substitute notes in an aggregate principal amount equal to the Loan Amount and to reapportion the Loan among such separate substitute notes, including, without limitation, by executing and delivering to Lender new substitute notes to replace the Note, amendments to or replacements of existing Loan Documents to reflect such severance and/or legal opinions with respect to such substitute notes, amendments and/or replacements. Notwithstanding the foregoing, Borrower shall not be required to incur any post-closing costs or expenses relating to the severance of the Note, other than Borrower’s internal costs and expenses and the fees and disbursements of Borrower’s counsel with respect to the issuance of a new enforceability opinion in connection with any such substitute notes. Any such substitute notes may as among themselves be pari passu, senior and subordinate and/or otherwise have varying principal amounts and economic terms, provided, however, that, subject to the effect of any prepayments of such substitute notes after an Event of Default, (i) the weighted average spread applicable to the substitutes notes shall not exceed the Spread, (ii) the economics of the Loan (or severed portions thereof) and other terms of the Loan, taken as a whole, shall not be modified by such fractionalization in a manner which is in any material respect adverse to Borrower (except any increase in the weighted average spread applicable to the substitute notes that may result after prepayments of the Loan have been made after an Event of Default) and (iii) subject only to the terms of Section 2.4.2(C) hereof regarding a Directed Paydown, all voluntary principal prepayments shall be applied ratably among the securities issued in connection with a Mezzanine Loan Securitization and any other interests in the Loan held outside the Mezzanine Loan Securitization.
(d) Borrower agrees that, if requested by Lender prior to, or in connection with, a Mezzanine Loan Securitization, the Borrower shall take all actions as are necessary to effect the “resizing” of the Loan, the Senior Loan and/or the First Mezzanine Loan, including any new mezzanine loans that Lender requires Borrower to enter into (provided the documents evidencing and securing such new loan(s) are substantially identical in form and substance to the Loan Documents); and provided further that Lender is then the holder of the Senior Loan, the First Mezzanine Loan and/or the Loan that is subject to the resizing. In such event, Borrower and Lender agree that if the principal amount of the Loan were to be increased (or a new mezzanine loan or loans are created) and, as a result, the principal amount of the Senior Loan and/or the First Mezzanine Loan were decreased, (i) the Borrower shall cause the borrowers under the Senior Loan and/or the First Mezzanine Loan and any such new mezzanine loan(s) to comply with its agreements to effect a “resizing”, and (ii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the borrower under the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s) (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s)) such additional amount equal to the amount of the principal increase/reduction of the Loan provided that Borrower and applicable borrower(s) under the Senior Loan and/or the First Mezzanine Loan execute and deliver any and all necessary amendments or modifications to the Loan Documents, organizational documents (including the creation of a new mezzanine borrower or borrowers) and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents. In addition, Borrower and Lender agree that if the principal amount of any of the Senior Loan and/or the First Mezzanine Loan were to be decreased and, as a result, the Loan Amount were increased, then (i) if “resizing” to decrease the size of the Senior Loan and/or the First Mezzanine Loan and increase the size of the Loan, each of them shall take all actions as are necessary to effect the “resizing” of the Loan and the Senior Loan and/or the First Mezzanine Loan, (ii) Borrower shall cause the applicable borrower(s) under the Senior Loan and/or the First Mezzanine Loan to comply with its agreements to effect a “resizing” and (iii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the Borrower (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Mezzanine Loan an additional amount equal to the amount of principal reduction of the Senior Loan and/or the First Mezzanine Loan, provided that Borrower, Property Owner and/or First Mezzanine Borrower and any new mezzanine borrowers execute and deliver any and all necessary modifications to the Loan Documents, the Senior Loan Documents and/or First Mezzanine Loan Documents. In connection with the foregoing, Borrower agrees, at Lender’s sole cost and expense, to execute and deliver such documents and other agreements reasonably required by Lender, as holder of the applicable promissory note(s), to “re-size” the Loan, the Senior Loan and/or the First Mezzanine Loan, including, without limitation, an amendment to this Agreement, the Note, the Pledge Agreement, the other Loan Documents and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents, an endorsement to the Title Policy reflecting any increase in the insured amount thereunder (if applicable), an amendment to or replacement of the Rate Cap Agreement for the Loan, the Senior Loan and/or the First Mezzanine Loan which is being resized reflecting the appropriate modification to the notional amount thereunder, and an endorsement to the UCC title policies and, if applicable, mezzanine endorsements and related title letters, for the Loan and/or the First Mezzanine Loan which is being resized, reflecting the appropriate modification to the insured amount thereunder. Lender agrees to reimburse Borrower for all reasonable out-of-pocket costs and expenses (including, without limitation, reasonable attorney’s fees) incurred by Borrower in connection with any “resizing” of the Loan. Notwithstanding the foregoing, Lender agrees that any “resizing” of the Loan shall not change the economics of the Loan, the Senior Loan and/or the First Mezzanine Loan taken as a whole in a manner which is in any material respect adverse to Borrower, Property Owner and/or First Mezzanine BorrowerGuaranty.
Appears in 1 contract
Samples: Senior Unsecured Revolving Line of Credit Agreement (Sl Green Realty Corp)
The Note. (a) The Loan shall be evidenced by the Note, in the aggregate original principal amount of the Loan Amount. The Note shall bear interest at the Applicable Interest Rate through and including the Interest Accrual Period in which occurs the Maturity Date. The Note shall be subject to repayment as provided in Section 2.3 hereof, shall be entitled to the benefits of this Agreement and shall be secured by a Pledge granting a first priority Lien on each Borrower’s and certain of its Affiliates’ ownership of the Ownership Interests and by certain of the other Loan Documents.
(b) The Borrower shall maintain, or cause to be maintained, a register (the “Register”) at the address to which notices to the Borrower are to be sent hereunder, on which it shall enter the name or names of the registered owner or owners from time to time of the Notes. The Notes (or, if applicable, each Note) may be independently assigned or otherwise transferred in whole or in part (including, without limitation, the sale of any participation interests in the Notes by Lender) by registration of such assignment or transfer on the Register (and the Notes shall expressly so provide). Any assignment or transfer on the Register (and the Notes evidencing the same) may be effected by registration of such assignment or transfer on the Register. At the request of Lender or any designated assignee or transferee of any of the Notes, Borrowers shall (i) issue to Lender or the designated assignee or transferee one or more new Notes in the same aggregate principal amount of the Notes (which Notes may contain components and/or subcomponents of the debt evidenced by such Notes) so assigned or transferred upon delivery to Borrowers of the Notes so assigned or transferred and (ii) reasonably cooperate with Lender in connection with Lender’s assignment of any interest in the Loan. The Register shall be available for inspection by Lender at any reasonable time upon reasonable prior notice.
(c) Borrower agrees that it shall, upon request, reasonably cooperate with Lender in connection with any request by Lender to sever the Note into two (2) or more separate substitute notes in an aggregate principal amount equal to the Loan Amount and to reapportion the Loan among such separate substitute notes, including, without limitation, by executing and delivering to Lender new substitute notes to replace the Note, amendments to or replacements of existing Loan Documents to reflect such severance and/or legal opinions with respect to such substitute notes, amendments and/or replacements. Notwithstanding the foregoing, Borrower shall not be required to incur any post-closing costs or expenses relating to the severance of the Note, other than Borrower’s internal costs and expenses and the fees and disbursements of Borrower’s counsel with respect to the issuance of a new enforceability opinion in connection with any such substitute notes. Any such substitute notes may as among themselves be pari passu, senior and subordinate and/or otherwise have varying principal amounts and economic terms, provided, however, that, subject to the effect of any prepayments of such substitute notes after an Event of Default, (i) the weighted average spread applicable to the substitutes notes shall not exceed the Spread, (ii) the economics of the Loan (or severed portions thereof) and other terms of the Loan, taken as a whole, shall not be modified by such fractionalization in a manner which is in any material respect adverse to Borrower (except any increase in the weighted average spread applicable to the substitute notes that may result after prepayments of the Loan have been made after an Event of Default) and (iii) subject only to the terms of Section 2.4.2(C) hereof regarding a Directed Paydown, all voluntary principal prepayments shall be applied ratably among the securities issued in connection with a Mezzanine Loan Securitization and any other interests in the Loan held outside the Mezzanine Loan Securitization.
(d) Borrower agrees that, if requested by Lender prior to, or in connection with, a Mezzanine Loan Securitization, the Borrower shall take all actions as are necessary to effect the “resizing” of the Loan, the Senior Loan and/or the First Second Mezzanine Loan, including any new mezzanine loans that Lender requires Borrower to enter into (provided the documents evidencing and securing such new loan(s) are substantially identical in form and substance to the Loan Documents); and provided further that Lender is then the holder of the Senior Loan, the First Second Mezzanine Loan and/or the Loan that is subject to the resizing. In such event, Borrower and Lender agree that if the principal amount of the Loan were to be increased (or a new mezzanine loan or loans are created) and, as a result, the principal amount of the Senior Loan Loan, and/or the First Second Mezzanine Loan were decreased, (i) the Borrower shall cause the borrowers under the Senior Loan Loan, and/or the First Second Mezzanine Loan and any such new mezzanine loan(s) to comply with its agreements to effect a “resizing”, and (ii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the borrower under the Senior Loan and/or the First Second Mezzanine Loan or new mezzanine loan(s) (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Second Mezzanine Loan or new mezzanine loan(s)) such additional amount equal to the amount of the principal increase/reduction of the Loan provided that Borrower and applicable borrower(s) under the Senior Loan and/or the First Second Mezzanine Loan execute and deliver any and all necessary amendments or modifications to the Loan Documents, organizational documents (including the creation of a new mezzanine borrower or borrowers) and the applicable Senior Loan Documents and/or First Second Mezzanine Loan Documents. In addition, Borrower and Lender agree that if the principal amount of any of the Senior Loan and/or the First Second Mezzanine Loan were to be decreased and, as a result, the Loan Amount were increased, then (i) if “resizing” to decrease the size of the Senior Loan and/or the First Second Mezzanine Loan and increase the size of the Loan, each of them shall take all actions as are necessary to effect the “resizing” of the Loan and the Senior Loan and/or the First Second Mezzanine Loan, (ii) Borrower shall cause the applicable borrower(s) under the Senior Loan and/or the First Second Mezzanine Loan to comply with its agreements to effect a “resizing” and (iii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the Borrower (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Second Mezzanine Loan an additional amount equal to the amount of principal reduction of the Senior Loan and/or the First Second Mezzanine Loan, provided that Borrower, Property Owner and/or First Second Mezzanine Borrower and any new mezzanine borrowers execute and deliver any and all necessary modifications to the Loan Documents, the Senior Loan Documents and/or First Second Mezzanine Loan Documents. In connection with the foregoing, Borrower agrees, at Lender’s sole cost and expense, to execute and deliver such documents and other agreements reasonably required by Lender, as holder of the applicable promissory note(s), to “re-size” the Loan, the Senior Loan and/or the First Second Mezzanine Loan, including, without limitation, an amendment to this Agreement, the Note, the Pledge Agreement, the other Loan Documents and the applicable Senior Loan Documents and/or First Second Mezzanine Loan Documents, an endorsement to the Title Policy reflecting any increase in the insured amount thereunder (if applicable), an amendment to or replacement of the Rate Cap Agreement for the Loan, the Senior Loan and/or the First Second Mezzanine Loan which is being resized reflecting the appropriate modification to the notional amount thereunder, and an endorsement to the UCC title policies and, if applicable, mezzanine endorsements and related title letters, for the Loan and/or the First Second Mezzanine Loan which is being resized, reflecting the appropriate modification to the insured amount thereunder. Lender agrees to reimburse Borrower for all reasonable out-of-pocket costs and expenses (including, without limitation, reasonable attorney’s fees) incurred by Borrower in connection with any “resizing” of the Loan. Notwithstanding the foregoing, Lender agrees that any “resizing” of the Loan shall not change the economics of the Loan, the Senior Loan and/or the First Second Mezzanine Loan taken as a whole in a manner which is in any material respect adverse to Borrower, Property Owner and/or First Second Mezzanine Borrower.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Strategic Hotel Capital Inc)
The Note. (a) The Borrower's and the REIT's obligation -------- to pay the principal of, and interest on, the Loan shall be evidenced by the promissory note (as amended, modified, supplemented, extended or consolidated, the "Note, ") duly executed and delivered by Borrower and the REIT substantially in the aggregate original form of Exhibit "B" hereto in a principal amount of ----------- equal to the Loan AmountFacility Amount with blanks appropriately completed in conformity herewith. The Note shall bear interest at (i) be payable to the Applicable Interest Rate through order of Agent, on behalf of the Co-Lenders, (ii) be dated the Closing Date, and including the Interest Accrual Period in which occurs (iii) mature on the Maturity Date. The If required by a Co-Lender that is not a Co-Lender as of the date hereof, Borrower and the REIT hereby agree to execute a supplemental Note in the principal amount of such Co-Lender's pro rata share of the Facility Amount, substantially in the form of Exhibit "B" hereto, with blanks appropriately completed, and such supplemental Note shall (i) be subject payable to repayment order of Agent, on account of such Co-Lender, (ii) be dated as provided in Section 2.3 hereof, shall be entitled to the benefits of this Agreement and shall be secured by a Pledge granting a first priority Lien on each Borrower’s and certain of its Affiliates’ ownership of the Ownership Interests Closing Date, and by certain (iii) mature on the Maturity Date. Such supplemental Note shall provide that it evidences a portion of the other Loan Documentsexisting indebtedness hereunder and not any new or additional indebtedness of Borrower or the REIT.
(b) The Borrower shall maintainAgent is hereby authorized, at its option, (i) to endorse on the schedule attached to each Note (or cause to be maintained, on a register (the “Register”) at the address to which notices to the Borrower are to be sent hereunder, on which it shall enter the name or names of the registered owner or owners from time to time of the Notes. The Notes (or, if applicable, each Note) may be independently assigned or otherwise transferred in whole or in part (including, without limitation, the sale of any participation interests in the Notes by Lender) by registration continuation of such assignment or transfer on schedule attached to each such Note and made a part thereof) an appropriate notation evidencing the Register (date and amount of each Advance evidenced thereby and the Notes shall expressly so provide). Any assignment or transfer on the Register (pro rata share thereof of each Co-Lender, and the Notes evidencing date and amount of each principal and interest payment in respect thereof, and/or (ii) to record such Advances and such payments in its books and records. Such schedule or such books and records, as the same) case may be, shall be effected by registration conclusive and binding on Borrower and the REIT absent manifest error, provided that the failure to make any notation shall not affect the obligations of such assignment Borrower, any Guarantor or transfer on the Register. At REIT or the request rights of Lender or any designated assignee Co-Lender hereunder or transferee of any of the Notes, Borrowers shall (i) issue to Lender or the designated assignee or transferee one or more new Notes in the same aggregate principal amount of the Notes (which Notes may contain components and/or subcomponents of the debt evidenced by such Notes) so assigned or transferred upon delivery to Borrowers of the Notes so assigned or transferred and (ii) reasonably cooperate with Lender in connection with Lender’s assignment of any interest in the Loan. The Register shall be available for inspection by Lender at any reasonable time upon reasonable prior notice.
(c) Borrower agrees that it shall, upon request, reasonably cooperate with Lender in connection with any request by Lender to sever the Note into two (2) or more separate substitute notes in an aggregate principal amount equal to the Loan Amount and to reapportion the Loan among such separate substitute notes, including, without limitation, by executing and delivering to Lender new substitute notes to replace the Note, amendments to or replacements of existing Loan Documents to reflect such severance and/or legal opinions with respect to such substitute notes, amendments and/or replacements. Notwithstanding the foregoing, Borrower shall not be required to incur any post-closing costs or expenses relating to the severance of the Note, other than Borrower’s internal costs and expenses and the fees and disbursements of Borrower’s counsel with respect to the issuance of a new enforceability opinion in connection with any such substitute notes. Any such substitute notes may as among themselves be pari passu, senior and subordinate and/or otherwise have varying principal amounts and economic terms, provided, however, that, subject to the effect of any prepayments of such substitute notes after an Event of Default, (i) the weighted average spread applicable to the substitutes notes shall not exceed the Spread, (ii) the economics of the Loan (or severed portions thereof) and other terms of the Loan, taken as a whole, shall not be modified by such fractionalization in a manner which is in any material respect adverse to Borrower (except any increase in the weighted average spread applicable to the substitute notes that may result after prepayments of the Loan have been made after an Event of Default) and (iii) subject only to the terms of Section 2.4.2(C) hereof regarding a Directed Paydown, all voluntary principal prepayments shall be applied ratably among the securities issued in connection with a Mezzanine Loan Securitization and any other interests in the Loan held outside the Mezzanine Loan Securitization.
(d) Borrower agrees that, if requested by Lender prior to, or in connection with, a Mezzanine Loan Securitization, the Borrower shall take all actions as are necessary to effect the “resizing” of the Loan, the Senior Loan and/or the First Mezzanine Loan, including any new mezzanine loans that Lender requires Borrower to enter into (provided the documents evidencing and securing such new loan(s) are substantially identical in form and substance to the Loan Documents); and provided further that Lender is then the holder of the Senior Loan, the First Mezzanine Loan and/or the Loan that is subject to the resizing. In such event, Borrower and Lender agree that if the principal amount of the Loan were to be increased (or a new mezzanine loan or loans are created) and, as a result, the principal amount of the Senior Loan and/or the First Mezzanine Loan were decreased, (i) the Borrower shall cause the borrowers under the Senior Loan and/or the First Mezzanine Loan and any such new mezzanine loan(s) to comply with its agreements to effect a “resizing”, and (ii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the borrower under the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s) (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s)) such additional amount equal to the amount of the principal increase/reduction of the Loan provided that Borrower and applicable borrower(s) under the Senior Loan and/or the First Mezzanine Loan execute and deliver any and all necessary amendments or modifications to the Loan Documents, organizational documents (including the creation of a new mezzanine borrower or borrowers) and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents. In addition, Borrower and Lender agree that if the principal amount of any of the Senior Loan and/or the First Mezzanine Loan were to be decreased and, as a result, the Loan Amount were increased, then (i) if “resizing” to decrease the size of the Senior Loan and/or the First Mezzanine Loan and increase the size of the Loan, each of them shall take all actions as are necessary to effect the “resizing” of the Loan and the Senior Loan and/or the First Mezzanine Loan, (ii) Borrower shall cause the applicable borrower(s) under the Senior Loan and/or the First Mezzanine Loan to comply with its agreements to effect a “resizing” and (iii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the Borrower (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Mezzanine Loan an additional amount equal to the amount of principal reduction of the Senior Loan and/or the First Mezzanine Loan, provided that Borrower, Property Owner and/or First Mezzanine Borrower and any new mezzanine borrowers execute and deliver any and all necessary modifications to the Loan Documents, the Senior Loan Documents and/or First Mezzanine Loan Documents. In connection with the foregoing, Borrower agrees, at Lender’s sole cost and expense, to execute and deliver such documents and other agreements reasonably required by Lender, as holder of the applicable promissory note(s), to “re-size” the Loan, the Senior Loan and/or the First Mezzanine Loan, including, without limitation, an amendment to this Agreement, the Note, the Pledge Agreement, the other Loan Documents and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents, an endorsement to the Title Policy reflecting any increase in the insured amount thereunder (if applicable), an amendment to or replacement of the Rate Cap Agreement for the Loan, the Senior Loan and/or the First Mezzanine Loan which is being resized reflecting the appropriate modification to the notional amount thereunder, and an endorsement to the UCC title policies and, if applicable, mezzanine endorsements and related title letters, for the Loan and/or the First Mezzanine Loan which is being resized, reflecting the appropriate modification to the insured amount thereunder. Lender agrees to reimburse Borrower for all reasonable out-of-pocket costs and expenses (including, without limitation, reasonable attorney’s fees) incurred by Borrower in connection with any “resizing” of the Loan. Notwithstanding the foregoing, Lender agrees that any “resizing” of the Loan shall not change the economics of the Loan, the Senior Loan and/or the First Mezzanine Loan taken as a whole in a manner which is in any material respect adverse to Borrower, Property Owner and/or First Mezzanine BorrowerGuaranty.
Appears in 1 contract
The Note. (a) The Borrower's obligation to pay the principal of, and interest on, the Loan shall be evidenced by the promissory note (as amended, modified, supplemented, extended or consolidated, the "Note, ") duly executed and delivered by Borrower substantially in the aggregate original form of Exhibit "B" hereto in a principal amount of equal to the Loan Facility Amount, with blanks appropriately completed in conformity herewith. The Note shall bear interest at (i) be payable to the Applicable Interest Rate through order of Agent, and including the Interest Accrual Period in which occurs Co-Lenders, (ii) be dated the Closing Date, and (iii) mature on the Maturity Date. The If required by a Co-Lender that is not a Co-Lender as of the date hereof, Borrower hereby agree to execute a supplemental Note in the principal amount of such Co-Lender's pro rata share of the Facility Amount substantially in the form of Exhibit "B" hereto, with blanks appropriately completed, and such supplemental Note shall (i) be subject payable to repayment order of Agent, on account of such Co-Lender, (ii) be dated as provided in Section 2.3 hereof, shall be entitled to the benefits of this Agreement and shall be secured by a Pledge granting a first priority Lien on each Borrower’s and certain of its Affiliates’ ownership of the Ownership Interests Closing Date, and by certain (iii) mature on the Maturity Date. Such supplemental Note shall provide that it evidences a portion of the other Loan Documentsexisting indebtedness hereunder and not any new or additional indebtedness of Borrower.
(b) The Borrower shall maintainAgent is hereby authorized, at its option, (i) to endorse on the schedule attached to each Note (or cause to be maintained, on a register (the “Register”) at the address to which notices to the Borrower are to be sent hereunder, on which it shall enter the name or names of the registered owner or owners from time to time of the Notes. The Notes (or, if applicable, each Note) may be independently assigned or otherwise transferred in whole or in part (including, without limitation, the sale of any participation interests in the Notes by Lender) by registration continuation of such assignment or transfer on schedule attached to each such Note and made a part thereof) an appropriate notation evidencing the Register (date and amount of each Advance evidenced thereby and the Notes shall expressly so provide). Any assignment or transfer on the Register (pro rata share thereof of each Co-Lender, and the Notes evidencing date and amount of each principal and interest payment in respect thereof, and/or (ii) to record such Advances and such payments in its books and records. Such schedule or such books and records, as the same) case may be, shall be effected by registration conclusive and binding on Borrower absent manifest error, provided that the failure to make any notation shall not affect the obligations of such assignment Borrower, any Guarantor or transfer on the Register. At the request rights of Lender or any designated assignee Co-Lender hereunder or transferee of any of the Notes, Borrowers shall (i) issue to Lender or the designated assignee or transferee one or more new Notes in the same aggregate principal amount of the Notes (which Notes may contain components and/or subcomponents of the debt evidenced by such Notes) so assigned or transferred upon delivery to Borrowers of the Notes so assigned or transferred and (ii) reasonably cooperate with Lender in connection with Lender’s assignment of any interest in the Loan. The Register shall be available for inspection by Lender at any reasonable time upon reasonable prior notice.
(c) Borrower agrees that it shall, upon request, reasonably cooperate with Lender in connection with any request by Lender to sever the Note into two (2) or more separate substitute notes in an aggregate principal amount equal to the Loan Amount and to reapportion the Loan among such separate substitute notes, including, without limitation, by executing and delivering to Lender new substitute notes to replace the Note, amendments to or replacements of existing Loan Documents to reflect such severance and/or legal opinions with respect to such substitute notes, amendments and/or replacements. Notwithstanding the foregoing, Borrower shall not be required to incur any post-closing costs or expenses relating to the severance of the Note, other than Borrower’s internal costs and expenses and the fees and disbursements of Borrower’s counsel with respect to the issuance of a new enforceability opinion in connection with any such substitute notes. Any such substitute notes may as among themselves be pari passu, senior and subordinate and/or otherwise have varying principal amounts and economic terms, provided, however, that, subject to the effect of any prepayments of such substitute notes after an Event of Default, (i) the weighted average spread applicable to the substitutes notes shall not exceed the Spread, (ii) the economics of the Loan (or severed portions thereof) and other terms of the Loan, taken as a whole, shall not be modified by such fractionalization in a manner which is in any material respect adverse to Borrower (except any increase in the weighted average spread applicable to the substitute notes that may result after prepayments of the Loan have been made after an Event of Default) and (iii) subject only to the terms of Section 2.4.2(C) hereof regarding a Directed Paydown, all voluntary principal prepayments shall be applied ratably among the securities issued in connection with a Mezzanine Loan Securitization and any other interests in the Loan held outside the Mezzanine Loan Securitization.
(d) Borrower agrees that, if requested by Lender prior to, or in connection with, a Mezzanine Loan Securitization, the Borrower shall take all actions as are necessary to effect the “resizing” of the Loan, the Senior Loan and/or the First Mezzanine Loan, including any new mezzanine loans that Lender requires Borrower to enter into (provided the documents evidencing and securing such new loan(s) are substantially identical in form and substance to the Loan Documents); and provided further that Lender is then the holder of the Senior Loan, the First Mezzanine Loan and/or the Loan that is subject to the resizing. In such event, Borrower and Lender agree that if the principal amount of the Loan were to be increased (or a new mezzanine loan or loans are created) and, as a result, the principal amount of the Senior Loan and/or the First Mezzanine Loan were decreased, (i) the Borrower shall cause the borrowers under the Senior Loan and/or the First Mezzanine Loan and any such new mezzanine loan(s) to comply with its agreements to effect a “resizing”, and (ii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the borrower under the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s) (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s)) such additional amount equal to the amount of the principal increase/reduction of the Loan provided that Borrower and applicable borrower(s) under the Senior Loan and/or the First Mezzanine Loan execute and deliver any and all necessary amendments or modifications to the Loan Documents, organizational documents (including the creation of a new mezzanine borrower or borrowers) and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents. In addition, Borrower and Lender agree that if the principal amount of any of the Senior Loan and/or the First Mezzanine Loan were to be decreased and, as a result, the Loan Amount were increased, then (i) if “resizing” to decrease the size of the Senior Loan and/or the First Mezzanine Loan and increase the size of the Loan, each of them shall take all actions as are necessary to effect the “resizing” of the Loan and the Senior Loan and/or the First Mezzanine Loan, (ii) Borrower shall cause the applicable borrower(s) under the Senior Loan and/or the First Mezzanine Loan to comply with its agreements to effect a “resizing” and (iii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the Borrower (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Mezzanine Loan an additional amount equal to the amount of principal reduction of the Senior Loan and/or the First Mezzanine Loan, provided that Borrower, Property Owner and/or First Mezzanine Borrower and any new mezzanine borrowers execute and deliver any and all necessary modifications to the Loan Documents, the Senior Loan Documents and/or First Mezzanine Loan Documents. In connection with the foregoing, Borrower agrees, at Lender’s sole cost and expense, to execute and deliver such documents and other agreements reasonably required by Lender, as holder of the applicable promissory note(s), to “re-size” the Loan, the Senior Loan and/or the First Mezzanine Loan, including, without limitation, an amendment to this Agreement, the Note, the Pledge Agreement, the other Loan Documents and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents, an endorsement to the Title Policy reflecting any increase in the insured amount thereunder (if applicable), an amendment to or replacement of the Rate Cap Agreement for the Loan, the Senior Loan and/or the First Mezzanine Loan which is being resized reflecting the appropriate modification to the notional amount thereunder, and an endorsement to the UCC title policies and, if applicable, mezzanine endorsements and related title letters, for the Loan and/or the First Mezzanine Loan which is being resized, reflecting the appropriate modification to the insured amount thereunder. Lender agrees to reimburse Borrower for all reasonable out-of-pocket costs and expenses (including, without limitation, reasonable attorney’s fees) incurred by Borrower in connection with any “resizing” of the Loan. Notwithstanding the foregoing, Lender agrees that any “resizing” of the Loan shall not change the economics of the Loan, the Senior Loan and/or the First Mezzanine Loan taken as a whole in a manner which is in any material respect adverse to Borrower, Property Owner and/or First Mezzanine BorrowerGuaranty.
Appears in 1 contract
Samples: Senior Secured Revolving Line of Credit Agreement (Interstate Hotels Corp)
The Note. (ai) The Loan Issuer’s obligation to pay the principal of and interest on all amounts advanced by the Company pursuant to any Funding shall be evidenced by the Note, in the aggregate original principal amount a single note of the Loan Amount. The Note shall bear interest at the Applicable Interest Rate through and including the Interest Accrual Period in which occurs the Maturity Date. The Note shall be subject to repayment as provided in Section 2.3 hereof, shall be entitled to the benefits of this Agreement and shall be secured by a Pledge granting a first priority Lien on each Borrower’s and certain of its Affiliates’ ownership of the Ownership Interests and by certain of the other Loan Documents.
(b) The Borrower shall maintain, or cause to be maintained, a register Issuer (the “RegisterNote”) at the address to which notices to the Borrower are to be sent hereunder, on which it shall enter the name or names of the registered owner or owners from time to time of the Notes. The Notes (or, if applicable, each Note) may be independently assigned or otherwise transferred in whole or in part (including, without limitation, the sale of any participation interests in the Notes by Lender) by registration of such assignment or transfer on the Register (and the Notes shall expressly so provide). Any assignment or transfer on the Register (and the Notes evidencing the same) may be effected by registration of such assignment or transfer on the Register. At the request of Lender or any designated assignee or transferee of any of the Notes, Borrowers shall (i1) issue to Lender or be dated the designated assignee or transferee one or more new Notes in the same aggregate principal amount of the Notes (which Notes may contain components and/or subcomponents of the debt evidenced by such Notes) so assigned or transferred upon delivery to Borrowers of the Notes so assigned or transferred and (ii) reasonably cooperate with Lender in connection with Lender’s assignment of any interest in the Loan. The Register shall be available for inspection by Lender at any reasonable time upon reasonable prior notice.
(c) Borrower agrees that it shall, upon request, reasonably cooperate with Lender in connection with any request by Lender to sever the Note into two Closing Date; (2) or more separate substitute notes be in an aggregate the stated principal amount equal to the Loan Amount and Facility Limit (as reflected from time to reapportion time on the Loan among such separate substitute notes, including, without limitation, by executing and delivering to Lender new substitute notes to replace the Note, amendments to or replacements of existing Loan Documents to reflect such severance and/or legal opinions with respect to such substitute notes, amendments and/or replacements. Notwithstanding the foregoing, Borrower shall not grid attached thereto); (3) bear interest as provided therein; (4) be required to incur any post-closing costs or expenses relating payable to the severance order of the Agent for the account of the Owners and mature on the Remittance Date occurring in the sixth calendar month following the calendar month in which the latest maturing Receivable (determined as of the Termination Date) is scheduled to mature (without regard to extensions subsequently granted on any Receivable by the Issuer or the Servicer); (5) be entitled to the benefit of the Security Agreement and (6) be substantially in the form of Exhibit C to this Agreement, with blanks appropriately completed in conformity herewith. The Agent shall, and is hereby authorized to, make a notation on the schedule attached to the Note of the date and the amount of the Transfer Price paid to the Issuer in connection with each Funding and the date and amount of the payment of principal thereon, and prior to any transfer of the Note, the Agent shall endorse the outstanding principal amount of the Note on the schedule attached thereto; provided, however, that failure to make such notation shall not adversely affect the Company’s or any other than BorrowerOwner’s internal costs and expenses and the fees and disbursements of Borrower’s counsel rights with respect to the issuance of a new enforceability opinion in connection with any such substitute notes. Any such substitute notes may as among themselves be pari passu, senior and subordinate and/or otherwise have varying principal amounts and economic terms, provided, however, that, subject to the effect of any prepayments of such substitute notes after an Event of Default, (i) the weighted average spread applicable to the substitutes notes shall not exceed the Spread, Note.
(ii) Although the economics of the Loan (or severed portions thereof) and other terms of the Loan, taken as a whole, shall not be modified by such fractionalization in a manner which is in any material respect adverse to Borrower (except any increase in the weighted average spread applicable to the substitute notes that may result after prepayments of the Loan have been made after an Event of Default) and (iii) subject only to the terms of Section 2.4.2(C) hereof regarding a Directed Paydown, all voluntary principal prepayments Note shall be applied ratably among dated the securities issued Closing Date, interest in connection with a Mezzanine Loan Securitization and any other interests in respect thereof shall be payable only for the Loan held outside the Mezzanine Loan Securitization.
(d) Borrower agrees that, if requested by Lender prior to, or in connection with, a Mezzanine Loan Securitization, the Borrower shall take all actions as periods during which amounts are necessary to effect the “resizing” of the Loan, the Senior Loan and/or the First Mezzanine Loan, including any new mezzanine loans that Lender requires Borrower to enter into (provided the documents evidencing and securing such new loan(s) are substantially identical in form and substance to the Loan Documents); and provided further that Lender is then the holder of the Senior Loan, the First Mezzanine Loan and/or the Loan that is subject to the resizingoutstanding thereunder. In such eventaddition, Borrower and Lender agree that if although the stated principal amount of the Loan were Note shall be equal to be increased (or a new mezzanine loan or loans are created) and, as a resultthe Facility Limit, the Note shall be enforceable with respect to the Issuer’s obligation to pay the principal thereof only to the extent of the unpaid principal amount of the Senior Loan and/or Fundings outstanding thereunder at the First Mezzanine Loan were decreased, (i) the Borrower time such enforcement shall cause the borrowers under the Senior Loan and/or the First Mezzanine Loan and any such new mezzanine loan(s) to comply with its agreements to effect a “resizing”, and (ii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the borrower under the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s) (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s)) such additional amount equal to the amount of the principal increase/reduction of the Loan provided that Borrower and applicable borrower(s) under the Senior Loan and/or the First Mezzanine Loan execute and deliver any and all necessary amendments or modifications to the Loan Documents, organizational documents (including the creation of a new mezzanine borrower or borrowers) and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents. In addition, Borrower and Lender agree that if the principal amount of any of the Senior Loan and/or the First Mezzanine Loan were to be decreased and, as a result, the Loan Amount were increased, then (i) if “resizing” to decrease the size of the Senior Loan and/or the First Mezzanine Loan and increase the size of the Loan, each of them shall take all actions as are necessary to effect the “resizing” of the Loan and the Senior Loan and/or the First Mezzanine Loan, (ii) Borrower shall cause the applicable borrower(s) under the Senior Loan and/or the First Mezzanine Loan to comply with its agreements to effect a “resizing” and (iii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the Borrower (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Mezzanine Loan an additional amount equal to the amount of principal reduction of the Senior Loan and/or the First Mezzanine Loan, provided that Borrower, Property Owner and/or First Mezzanine Borrower and any new mezzanine borrowers execute and deliver any and all necessary modifications to the Loan Documents, the Senior Loan Documents and/or First Mezzanine Loan Documents. In connection with the foregoing, Borrower agrees, at Lender’s sole cost and expense, to execute and deliver such documents and other agreements reasonably required by Lender, as holder of the applicable promissory note(s), to “re-size” the Loan, the Senior Loan and/or the First Mezzanine Loan, including, without limitation, an amendment to this Agreement, the Note, the Pledge Agreement, the other Loan Documents and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents, an endorsement to the Title Policy reflecting any increase in the insured amount thereunder (if applicable), an amendment to or replacement of the Rate Cap Agreement for the Loan, the Senior Loan and/or the First Mezzanine Loan which is being resized reflecting the appropriate modification to the notional amount thereunder, and an endorsement to the UCC title policies and, if applicable, mezzanine endorsements and related title letters, for the Loan and/or the First Mezzanine Loan which is being resized, reflecting the appropriate modification to the insured amount thereunder. Lender agrees to reimburse Borrower for all reasonable out-of-pocket costs and expenses (including, without limitation, reasonable attorney’s fees) incurred by Borrower in connection with any “resizing” of the Loan. Notwithstanding the foregoing, Lender agrees that any “resizing” of the Loan shall not change the economics of the Loan, the Senior Loan and/or the First Mezzanine Loan taken as a whole in a manner which is in any material respect adverse to Borrower, Property Owner and/or First Mezzanine Borrowersought.
Appears in 1 contract
The Note. (ai) The Loan Issuer's obligation to pay the principal of and interest on all amounts advanced hereunder pursuant to any Funding shall be evidenced by a single note of the Note, Issuer (the "NOTE") which shall (1) be dated the Closing Date; (2) be in the aggregate original stated principal amount equal to the Facility Limit (as reflected from time to time on the grid attached thereto); (3) bear interest as provided therein; (4) be payable to the order of the Loan Amount. The Note shall bear interest at Deal Agent, as agent for the Applicable Interest Rate through Company and including the Interest Accrual Period Investors and mature on the Remittance Date occurring in the third calendar month following the calendar month in which occurs the Maturity latest maturing Receivable (determined as of the Termination Date. The Note shall be subject ) is scheduled to repayment as provided in Section 2.3 hereof, shall mature (without regard to extensions subsequently granted on any Receivable by the Issuer or any servicing agent); (5) be entitled to the benefits of the Security Agreement; and (6) be substantially in the form of Exhibit A to this Agreement Agreement, with blanks appropriately completed in conformity herewith. The Deal Agent shall, and shall be secured by is hereby authorized to, make a Pledge granting a first priority Lien notation on each Borrower’s and certain of its Affiliates’ ownership the schedule attached to the Note of the Ownership Interests date and by certain the amount of each Funding and the date and amount of the other Loan Documents.
(b) The Borrower shall maintainpayment of principal thereon, or cause and prior to be maintained, a register (the “Register”) at the address to which notices to the Borrower are to be sent hereunder, on which it shall enter the name or names any transfer of the registered owner or owners from time to time of the Notes. The Notes (or, if applicable, each Note) may be independently assigned or otherwise transferred in whole or in part (including, without limitation, the sale of any participation interests in Deal Agent shall endorse the Notes by Lender) by registration of such assignment or transfer on the Register (and the Notes shall expressly so provide). Any assignment or transfer on the Register (and the Notes evidencing the same) may be effected by registration of such assignment or transfer on the Register. At the request of Lender or any designated assignee or transferee of any of the Notes, Borrowers shall (i) issue to Lender or the designated assignee or transferee one or more new Notes in the same aggregate outstanding principal amount of the Notes (which Notes may contain components and/or subcomponents of Note on the debt evidenced by schedule attached thereto; PROVIDED, HOWEVER, that failure to make such Notes) so assigned or transferred upon delivery to Borrowers of the Notes so assigned or transferred and (ii) reasonably cooperate with Lender in connection with Lender’s assignment of any interest in the Loan. The Register shall be available for inspection by Lender at any reasonable time upon reasonable prior notice.
(c) Borrower agrees that it shall, upon request, reasonably cooperate with Lender in connection with any request by Lender to sever the Note into two (2) or more separate substitute notes in an aggregate principal amount equal to the Loan Amount and to reapportion the Loan among such separate substitute notes, including, without limitation, by executing and delivering to Lender new substitute notes to replace the Note, amendments to or replacements of existing Loan Documents to reflect such severance and/or legal opinions with respect to such substitute notes, amendments and/or replacements. Notwithstanding the foregoing, Borrower notation shall not be required to incur adversely affect the Company's, the Deal Agent's, the Collateral Agent's, the Liquidity Agent's or any post-closing costs or expenses relating to the severance of the Note, other than Borrower’s internal costs and expenses and the fees and disbursements of Borrower’s counsel Investor's rights with respect to the issuance of a new enforceability opinion in connection with any such substitute notes. Any such substitute notes may as among themselves be pari passu, senior and subordinate and/or otherwise have varying principal amounts and economic terms, provided, however, that, subject to the effect of any prepayments of such substitute notes after an Event of Default, (i) the weighted average spread applicable to the substitutes notes shall not exceed the Spread, Note.
(ii) Although the economics of the Loan (or severed portions thereof) and other terms of the Loan, taken as a whole, shall not be modified by such fractionalization in a manner which is in any material respect adverse to Borrower (except any increase in the weighted average spread applicable to the substitute notes that may result after prepayments of the Loan have been made after an Event of Default) and (iii) subject only to the terms of Section 2.4.2(C) hereof regarding a Directed Paydown, all voluntary principal prepayments Note shall be applied ratably among dated the securities issued Closing Date, interest in connection with a Mezzanine Loan Securitization respect thereof shall be payable only for the periods during which amounts are outstanding thereunder and any other interests in the Loan held outside the Mezzanine Loan Securitization.
(d) Borrower agrees that, if requested by Lender prior to, or in connection with, a Mezzanine Loan Securitization, the Borrower shall take all actions on such amounts as are necessary to effect outstanding thereunder. Although the “resizing” of the Loan, the Senior Loan and/or the First Mezzanine Loan, including any new mezzanine loans that Lender requires Borrower to enter into (provided the documents evidencing and securing such new loan(s) are substantially identical in form and substance to the Loan Documents); and provided further that Lender is then the holder of the Senior Loan, the First Mezzanine Loan and/or the Loan that is subject to the resizing. In such event, Borrower and Lender agree that if the stated principal amount of the Loan were Note shall be equal to be increased (or a new mezzanine loan or loans are created) and, as a resultthe Facility Limit, the Note shall be enforceable with respect to the Issuer's obligation to pay the principal thereof only to the extent of the unpaid principal amount of the Senior Loan and/or Fundings outstanding thereunder at the First Mezzanine Loan were decreased, (i) the Borrower time such enforcement shall cause the borrowers under the Senior Loan and/or the First Mezzanine Loan and any such new mezzanine loan(s) to comply with its agreements to effect a “resizing”, and (ii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the borrower under the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s) (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s)) such additional amount equal to the amount of the principal increase/reduction of the Loan provided that Borrower and applicable borrower(s) under the Senior Loan and/or the First Mezzanine Loan execute and deliver any and all necessary amendments or modifications to the Loan Documents, organizational documents (including the creation of a new mezzanine borrower or borrowers) and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents. In addition, Borrower and Lender agree that if the principal amount of any of the Senior Loan and/or the First Mezzanine Loan were to be decreased and, as a result, the Loan Amount were increased, then (i) if “resizing” to decrease the size of the Senior Loan and/or the First Mezzanine Loan and increase the size of the Loan, each of them shall take all actions as are necessary to effect the “resizing” of the Loan and the Senior Loan and/or the First Mezzanine Loan, (ii) Borrower shall cause the applicable borrower(s) under the Senior Loan and/or the First Mezzanine Loan to comply with its agreements to effect a “resizing” and (iii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the Borrower (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Mezzanine Loan an additional amount equal to the amount of principal reduction of the Senior Loan and/or the First Mezzanine Loan, provided that Borrower, Property Owner and/or First Mezzanine Borrower and any new mezzanine borrowers execute and deliver any and all necessary modifications to the Loan Documents, the Senior Loan Documents and/or First Mezzanine Loan Documents. In connection with the foregoing, Borrower agrees, at Lender’s sole cost and expense, to execute and deliver such documents and other agreements reasonably required by Lender, as holder of the applicable promissory note(s), to “re-size” the Loan, the Senior Loan and/or the First Mezzanine Loan, including, without limitation, an amendment to this Agreement, the Note, the Pledge Agreement, the other Loan Documents and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents, an endorsement to the Title Policy reflecting any increase in the insured amount thereunder (if applicable), an amendment to or replacement of the Rate Cap Agreement for the Loan, the Senior Loan and/or the First Mezzanine Loan which is being resized reflecting the appropriate modification to the notional amount thereunder, and an endorsement to the UCC title policies and, if applicable, mezzanine endorsements and related title letters, for the Loan and/or the First Mezzanine Loan which is being resized, reflecting the appropriate modification to the insured amount thereunder. Lender agrees to reimburse Borrower for all reasonable out-of-pocket costs and expenses (including, without limitation, reasonable attorney’s fees) incurred by Borrower in connection with any “resizing” of the Loan. Notwithstanding the foregoing, Lender agrees that any “resizing” of the Loan shall not change the economics of the Loan, the Senior Loan and/or the First Mezzanine Loan taken as a whole in a manner which is in any material respect adverse to Borrower, Property Owner and/or First Mezzanine Borrowersought.
Appears in 1 contract
Samples: Note Purchase Agreement (First Investors Financial Services Group Inc)
The Note. (a) Description of the Note. Prior to the Closing, Alon Brands will authorize the issuance and delivery at the Closing of the Note in the aggregate principal amount of US$12,000,000. The term (the “Term”) of the Note shall commence upon the Closing and shall terminate on the fifth anniversary of the Closing. Subject to the Event of Default provisions set forth below, (i) the principal of the Loan shall be evidenced by repaid in four (4) equal consecutive annual payments, the Notefirst of which shall take place on the second anniversary of the Closing and the remaining three of which shall occur on the next three anniversaries of the Closing; provided, however, that each such scheduled payment of principal shall be automatically, and without the need for any action on the part of the Investor or Alon Brands, postponed until the end of the Term unless the Investor notifies Alon Brands in writing, at least 30 days prior to a date of a scheduled payment of principal, of its election not to postpone the payment of the scheduled payment of principal and, in such event, such principal will be repaid to the Investor on the date scheduled for such payment as set forth in the sentence immediately preceding this proviso, and the aggregate original principal amount of the Loan Amount. The principal postponed pursuant to the terms herein shall be paid to the Investor upon the expiration of the Term; (ii) the Note shall bear U.S. dollar denominated interest at an annual rate of 7% per annum (the Applicable “Interest Rate through Rate”), payable on a semi-annual basis (the “Interest Payment Dates”) as of the date which is six months following the Closing; and including (iii) the Interest Accrual Period in which occurs the Maturity Date. The Note shall be subject to repayment otherwise substantially in the form attached hereto as provided in Section 2.3 hereof, Exhibit 6. Interest on the Note shall be entitled computed on the basis of a 360 day per year. In the event that the Warrants (including for such purposes the Alon Brands Warrants) are not exercised in full by the expiration of the Term, the Interest Rate shall be increased to 9% which shall apply retroactively, as of the Closing Date and over the entire Term, solely to the benefits portion of the Loan equal to the unexercised portion of the Warrants (including for such purposes the Alon Brands Warrants). The additional interest amount which shall become payable following such an increase shall be paid in one installment to the Investor upon the expiration of the Term. For the purposes of this Agreement and Section 6, any payment due to be made on a day which is not a Business Day shall be secured by a Pledge granting a first priority Lien on each Borrower’s and certain of its Affiliates’ ownership of the Ownership Interests and by certain of the other Loan Documents.
(b) The Borrower shall maintain, or cause to be maintained, a register (the “Register”) at the address to which notices deferred to the Borrower are next Business Day. Subject to be sent hereunderproviding the Investor with a five day written notice, on which it shall enter the name or names of the registered owner or owners from time to time of the Notes. The Notes (or, if applicable, each Note) Loan may be independently assigned or otherwise transferred repaid, in whole or in part (includingpart, without limitation, penalty at any time prior to the sale expiration of any participation interests in the Notes by Lender) by registration of such assignment or transfer Term on the Register (and the Notes shall expressly so provide). Any assignment or transfer on the Register (and the Notes evidencing the same) may be effected by registration of such assignment or transfer on the Register. At the request of Lender or any designated assignee or transferee of any of the NotesInterest Payment Dates (“Voluntary Prepayment”) provided that any Voluntary Prepayment of principal must be made in a minimum amount of $3,000,000 and multiples of $500,000 in excess thereof and shall be deemed to reduce the last scheduled principal payment. For the avoidance of doubt, Borrowers shall (i) issue to Lender or the designated assignee or transferee one or more new Notes in the same aggregate principal amount any Voluntary Prepayment of the Notes (which Notes may contain components and/or subcomponents of the debt evidenced by such Notes) so assigned or transferred upon delivery to Borrowers of the Notes so assigned or transferred and Loan, (ii) reasonably cooperate with Lender in connection with Lender’s assignment any repayment of any interest in the Loan. The Register shall be available for inspection by Lender at any reasonable time upon reasonable prior notice.
(c) Borrower agrees that it shall, upon request, reasonably cooperate with Lender in connection with any request by Lender to sever the Note into two (2) or more separate substitute notes in an aggregate principal amount equal to the Loan Amount and due to reapportion acceleration of the Loan among such separate substitute notes, including, without limitation, by executing and delivering to Lender new substitute notes to replace the Note, amendments to or replacements of existing Loan Documents to reflect such severance and/or legal opinions with respect to such substitute notes, amendments and/or replacements. Notwithstanding the foregoing, Borrower shall not be required to incur any post-closing costs or expenses relating to the severance of the Note, other than Borrower’s internal costs and expenses and the fees and disbursements of Borrower’s counsel with respect to the issuance of a new enforceability opinion in connection with any such substitute notes. Any such substitute notes may as among themselves be pari passu, senior and subordinate and/or otherwise have varying principal amounts and economic terms, provided, however, that, subject to the effect of any prepayments of such substitute notes after upon an Event of Default, or (iiii) the weighted average spread applicable to the substitutes notes shall not exceed the Spread, (ii) the economics any repayment of the Loan (or severed portions thereof) and other terms of the Loan, taken as a wholeupon an Exit Event, shall not be modified by such fractionalization in a manner which is affect the Warrants or the Alon Brands Warrants or in any material respect adverse to Borrower (except any increase in manner reduce the weighted average spread applicable to number of shares of common stock underlying the substitute notes that may result after prepayments of the Loan have been made after an Event of Default) and (iii) subject only to the terms of Section 2.4.2(C) hereof regarding a Directed Paydown, all voluntary principal prepayments shall be applied ratably among the securities issued in connection with a Mezzanine Loan Securitization and any other interests in the Loan held outside the Mezzanine Loan Securitization.
(d) Borrower agrees that, if requested by Lender prior to, or in connection with, a Mezzanine Loan Securitization, the Borrower shall take all actions as are necessary to effect the “resizing” of the Loan, the Senior Loan and/or the First Mezzanine Loan, including any new mezzanine loans that Lender requires Borrower to enter into (provided the documents evidencing and securing such new loan(s) are substantially identical in form and substance to the Loan Documents); and provided further that Lender is then the holder of the Senior Loan, the First Mezzanine Loan and/or the Loan that is subject to the resizing. In such event, Borrower and Lender agree that if the principal amount of the Loan were to be increased (or a new mezzanine loan or loans are created) and, as a result, the principal amount of the Senior Loan and/or the First Mezzanine Loan were decreased, (i) the Borrower shall cause the borrowers under the Senior Loan and/or the First Mezzanine Loan and any such new mezzanine loan(s) to comply with its agreements to effect a “resizing”, and (ii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the borrower under the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s) (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s)) such additional amount equal to the amount of the principal increase/reduction of the Loan provided that Borrower and applicable borrower(s) under the Senior Loan and/or the First Mezzanine Loan execute and deliver any and all necessary amendments or modifications to the Loan Documents, organizational documents (including the creation of a new mezzanine borrower or borrowers) Warrants and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents. In addition, Borrower Alon Brands Warrants and Lender agree that if the principal amount of any of the Senior Loan and/or the First Mezzanine Loan were to be decreased and, as a result, the Loan Amount were increased, then (i) if “resizing” to decrease the size of the Senior Loan and/or the First Mezzanine Loan and increase the size of the Loan, each of them shall take all actions as are necessary to effect the “resizing” of the Loan and the Senior Loan and/or the First Mezzanine Loan, (ii) Borrower shall cause the applicable borrower(s) under the Senior Loan and/or the First Mezzanine Loan to comply with its agreements to effect a “resizing” and (iii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the Borrower (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Mezzanine Loan an additional amount equal to the amount of principal reduction of the Senior Loan and/or the First Mezzanine Loan, provided that Borrower, Property Owner and/or First Mezzanine Borrower and any new mezzanine borrowers execute and deliver any and all necessary modifications to the Loan Documents, the Senior Loan Documents and/or First Mezzanine Loan Documents. In connection with the foregoing, Borrower agrees, at Lender’s sole cost and expense, to execute and deliver such documents and other agreements reasonably required by Lender, as holder of the applicable promissory note(s), to “re-size” the Loan, the Senior Loan and/or the First Mezzanine Loan, including, without limitation, an amendment to this Agreement, the Note, the Pledge Agreement, the other Loan Documents and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents, an endorsement to the Title Policy reflecting any increase in the insured amount thereunder (if applicable), an amendment to or replacement of the Rate Cap Agreement for the Loan, the Senior Loan and/or the First Mezzanine Loan which is being resized reflecting the appropriate modification to the notional amount thereunder, and an endorsement to the UCC title policies and, if applicable, mezzanine endorsements and related title letters, for the Loan and/or the First Mezzanine Loan which is being resized, reflecting the appropriate modification to the insured amount thereunder. Lender agrees to reimburse Borrower for all reasonable out-of-pocket costs and expenses (including, without limitation, reasonable attorney’s fees) incurred by Borrower in connection with any “resizing” of the Loan. Notwithstanding the foregoing, Lender agrees that any “resizing” of the Loan shall not change shorten the economics of the Loan, the Senior Loan and/or the First Mezzanine Loan taken as a whole in a manner which is in exercise period for any material respect adverse to Borrower, Property Owner and/or First Mezzanine BorrowerWarrants or for any Alon Brands Warrants.
Appears in 1 contract
Samples: Loan Agreement (Alon Brands, Inc.)
The Note. (a) The Loan shall be evidenced by the Note, Note executed and delivered by the Borrower in the aggregate original principal maximum amount of the Loan AmountCommitment. The Note shall bear interest at Lender shall, and the Applicable Interest Rate through Borrower hereby irrevocably authorizes the Lender to, endorse on a schedule forming a part of the Note, appropriate notations evidencing (i) the date and including the Interest Accrual Period in which occurs the Maturity Date. The Note shall be subject to repayment as provided in Section 2.3 hereof, shall be entitled amount of each Advance and each payment of principal with respect to the benefits Loan, and (ii) the date and amount of the outstanding principal amount, or portion thereof, of the Loan converted into Conversion Shares in accordance with this Agreement and the Note; provided, however, that, the failure by the Lender to make any such endorsements or notations shall be secured by a Pledge granting a first priority Lien on each Borrower’s and certain of its Affiliates’ ownership not affect any obligations of the Ownership Interests Borrower under this Agreement and by certain of the other Loan DocumentsNote.
(b) The Borrower shall maintain, or cause to be maintained, a register (the “Register”) at the address to which notices to the Borrower are to be sent hereunder, on which it shall enter the name or names principal amount of the registered owner or owners from time to time of the Notes. The Notes (or, if applicable, each Note) may outstanding Loan shall be independently assigned or otherwise transferred convertible in whole or in part (includingin a minimum amount of $100,000), without limitationat the option of the Lender in its sole discretion at any time prior to the Maturity Date, into shares of Common Stock (“Conversion Shares”) initially at a price per share of $1.00, subject to downward adjustment pursuant to Section 6.6 ( the sale “Conversion Price”), and otherwise in accordance with the terms of the Note. No fractional Conversion Shares shall be issued, and any participation interests amounts that would otherwise result in a fractional share being issued shall be paid in cash to the Notes by Lender) by registration of such assignment or transfer on the Register (and the Notes shall expressly so provide). Any assignment or transfer on the Register (and the Notes evidencing the same) may be effected by registration of such assignment or transfer on the Register. At the request time of Lender or any designated assignee or transferee conversion of any of the Notes, Borrowers shall (i) issue to Lender or the designated assignee or transferee one or more new Notes in the same aggregate principal amount of the Notes (which Notes may contain components and/or subcomponents of the debt evidenced by such Notes) so assigned or transferred upon delivery to Borrowers of the Notes so assigned or transferred and (ii) reasonably cooperate with Lender in connection with Lender’s assignment of any interest in the Loan. The Register shall be available for inspection by Lender at any reasonable time upon reasonable prior notice.
(c) Borrower agrees that it shall, upon request, reasonably cooperate with Lender in connection with any request by Lender to sever the Note into two (2) or more separate substitute notes in an aggregate principal amount equal to the Loan Amount and to reapportion the Loan among such separate substitute notes, including, without limitation, by executing and delivering to Lender new substitute notes to replace the Note, amendments to or replacements of existing Loan Documents to reflect such severance and/or legal opinions with respect to such substitute notes, amendments and/or replacements. Notwithstanding the foregoing, Borrower shall not be required to incur any post-closing costs or expenses relating to the severance of the Note, other than Borrower’s internal costs and expenses and the fees and disbursements of Borrower’s counsel with respect to the issuance of a new enforceability opinion in connection with any such substitute notes. Any such substitute notes may as among themselves be pari passu, senior and subordinate and/or otherwise have varying principal amounts and economic terms, provided, however, that, subject to the effect of any prepayments of such substitute notes after an Event of Default, (i) the weighted average spread applicable to the substitutes notes shall not exceed the Spread, (ii) the economics of the Loan (or severed portions thereof) and other terms of the Loan, taken as a whole, shall not be modified by such fractionalization in a manner which is in any material respect adverse to Borrower (except any increase in the weighted average spread applicable to the substitute notes that may result after prepayments of the Loan have been made after an Event of Default) and (iii) subject only to the terms of Section 2.4.2(C) hereof regarding a Directed Paydown, all voluntary principal prepayments shall be applied ratably among the securities issued in connection with a Mezzanine Loan Securitization and any other interests in the Loan held outside the Mezzanine Loan Securitization.
(d) Borrower agrees that, if requested by Lender prior to, or in connection with, a Mezzanine Loan Securitization, the Borrower shall take all actions as are necessary to effect the “resizing” of the Loan, the Senior Loan and/or the First Mezzanine Loan, including any new mezzanine loans that Lender requires Borrower to enter into (provided the documents evidencing and securing such new loan(s) are substantially identical in form and substance to the Loan Documents); and provided further that Lender is then the holder of the Senior Loan, the First Mezzanine Loan and/or the Loan that is subject to the resizing. In such event, Borrower and Lender agree that if the principal amount of the Loan were to be increased (or a new mezzanine loan or loans are created) and, as a result, the principal amount of the Senior Loan and/or the First Mezzanine Loan were decreased, (i) the Borrower shall cause the borrowers under the Senior Loan and/or the First Mezzanine Loan and any such new mezzanine loan(s) to comply with its agreements to effect a “resizing”, and (ii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the borrower under the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s) (by way of a reallocation portion of the principal amount of the LoanNote, the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s)) such additional amount equal to the amount of the principal increase/reduction of the Loan provided that Borrower and applicable borrower(s) under the Senior Loan and/or the First Mezzanine Loan execute and deliver any and all necessary amendments or modifications to the Loan Documents, organizational documents (including the creation of a new mezzanine borrower or borrowers) and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents. In addition, Borrower and Lender agree that if outstanding accrued interest on the principal amount being converted shall be paid in cash to the Lender.
(c) As promptly as practicable after receipt of any a Notice of Conversion that provides for the conversion of the Senior Loan and/or the First Mezzanine Loan were to be decreased and, as a resultNote into Conversion Shares, the Loan Amount were increasedBorrower will issue and deliver to the Lender a certificate or certificates evidencing the Conversion Shares (if certificated), then or if the Conversion Shares are not certificated, will deliver evidence that such shares have been issued in book-entry form on the Borrower’s share register reflecting the Conversion Shares held by the Lender.
(id) if “resizing” to decrease the size of the Senior Loan and/or the First Mezzanine Loan and increase the size of the Loan, each of them shall take all actions as are necessary to effect the “resizing” of the Loan The Note and the Senior Loan and/or certificates evidencing the First Mezzanine Loan, Conversion Shares shall bear the following legend (ii) Borrower unless such securities shall cause the applicable borrower(s) be registered under the Senior Loan and/or the First Mezzanine Loan to comply with its agreements to effect a Securities Act): THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “resizing” and (iii) LenderACT”). THEY MAY NOT BE SOLD, as holder of the applicable promissory note(s)OFFERED FOR SALE, shall on the date of the “resizing” of the Loan lend to the Borrower (by way of a reallocation of the principal amount of the LoanPLEDGED, the Senior Loan and/or the First Mezzanine Loan an additional amount equal to the amount of principal reduction of the Senior Loan and/or the First Mezzanine Loan, provided that Borrower, Property Owner and/or First Mezzanine Borrower and any new mezzanine borrowers execute and deliver any and all necessary modifications to the Loan Documents, the Senior Loan Documents and/or First Mezzanine Loan Documents. In connection with the foregoing, Borrower agrees, at Lender’s sole cost and expense, to execute and deliver such documents and other agreements reasonably required by Lender, as holder of the applicable promissory note(s), to “re-size” the Loan, the Senior Loan and/or the First Mezzanine Loan, including, without limitation, an amendment to this Agreement, the Note, the Pledge Agreement, the other Loan Documents and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents, an endorsement to the Title Policy reflecting any increase in the insured amount thereunder (if applicable), an amendment to or replacement of the Rate Cap Agreement for the Loan, the Senior Loan and/or the First Mezzanine Loan which is being resized reflecting the appropriate modification to the notional amount thereunder, and an endorsement to the UCC title policies and, if applicable, mezzanine endorsements and related title letters, for the Loan and/or the First Mezzanine Loan which is being resized, reflecting the appropriate modification to the insured amount thereunder. Lender agrees to reimburse Borrower for all reasonable out-of-pocket costs and expenses (including, without limitation, reasonable attorney’s fees) incurred by Borrower in connection with any “resizing” of the Loan. Notwithstanding the foregoing, Lender agrees that any “resizing” of the Loan shall not change the economics of the Loan, the Senior Loan and/or the First Mezzanine Loan taken as a whole in a manner which is in any material respect adverse to Borrower, Property Owner and/or First Mezzanine BorrowerHYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR UPON RECEIPT BY THE COMPANY OF AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER THE ACT.
Appears in 1 contract
Samples: Line of Credit Agreement (Learning Tree International, Inc.)
The Note. On the Effective Date, the Issuer proposes to deliver to Receivables Capital Corporation (athe "PURCHASER") The Loan shall be evidenced the Note in exchange for the Original Notes held by the NotePurchaser. Subject to the terms and conditions hereof, the Purchaser agrees to fund increases in the aggregate original outstanding principal amount of the Loan Amount. The Note shall bear (each, a "NOTE INCREASE," and the principal amount of any such Note Increase, the "NOTE INCREASE AMOUNT") from time to time
(i) bears interest (subject to conversion to a fixed rate at the Applicable Interest Rate through option of the Agent upon the occurrence of an Amortization Event) at a fluctuating rate per annum equal to the "APPLICABLE RATE" plus the "APPLICABLE MARGIN," (ii) can be funded by Note Increases in a minimum amount of $5,000,000 and including any higher amount on any Purchase Date (as defined below), and (iii) is subject to prepayment at the Interest Accrual Period option of the Issuer as provided in which occurs the Maturity DateIndenture. The Note shall be subject to repayment issued in the form of a fully registered security in certificated form (as provided in Section 2.3 hereof, shall be entitled to contemplated by Article VIII of the benefits of this Agreement and shall be New York Uniform Commercial Code). The Note is secured by a Pledge granting a first priority Lien revolving pool of automobile receivables originated by Arcadia and sold by Arcadia to its wholly-owned subsidiary, Arcadia Receivables Finance Corp. ("ARFC"), and by ARFC to the Issuer, and by collections received in respect thereof. Payment of principal and interest on each Borrower’s and certain of its Affiliates’ ownership the entire Maximum Authorized Amount of the Ownership Interests and Note is insured by certain of the other Loan Documents.
Financial Security Assurance Inc. (b"FSA") The Borrower shall maintain, or cause to be maintained, under a register financial guaranty insurance policy (the “Register”"POLICY") at the address to which notices dated December 3, 1996, Endorsement No. 1 to the Borrower are Policy, dated December 3, 1996, Endorsement No. 2 to be sent hereunderthe Policy, on which it shall enter dated August 4, 1997, and Endorsement No. 3 to the name or names Policy, dated November 14, 1997. The Issuer, the Agent, Arcadia, ARFC and the Trustee have entered into a Servicing Agreement, dated as of the registered owner or owners December 3, 1996 (as amended to date, and as from time to time of the Notes. The Notes (orfurther amended, if applicable, each Note) may be independently assigned supplemented or otherwise transferred in whole or in part (including, without limitationmodified, the sale of any participation interests in the Notes by Lender) by registration of such assignment or transfer on the Register (and the Notes shall expressly so provide). Any assignment or transfer on the Register (and the Notes evidencing the same) may be effected by registration of such assignment or transfer on the Register. At the request of Lender or any designated assignee or transferee of any of the Notes, Borrowers shall (i) issue to Lender or the designated assignee or transferee one or more new Notes in the same aggregate principal amount of the Notes (which Notes may contain components and/or subcomponents of the debt evidenced by such Notes) so assigned or transferred upon delivery to Borrowers of the Notes so assigned or transferred and (ii) reasonably cooperate with Lender in connection with Lender’s assignment of any interest in the Loan. The Register shall be available for inspection by Lender at any reasonable time upon reasonable prior notice.
(c) Borrower agrees that it shall, upon request, reasonably cooperate with Lender in connection with any request by Lender to sever the Note into two (2) or more separate substitute notes in an aggregate principal amount equal to the Loan Amount and to reapportion the Loan among such separate substitute notes, including, without limitation, by executing and delivering to Lender new substitute notes to replace the Note, amendments to or replacements of existing Loan Documents to reflect such severance and/or legal opinions with respect to such substitute notes, amendments and/or replacements. Notwithstanding the foregoing, Borrower shall not be required to incur any post-closing costs or expenses relating to the severance of the Note, other than Borrower’s internal costs and expenses and the fees and disbursements of Borrower’s counsel with respect to the issuance of a new enforceability opinion in connection with any such substitute notes. Any such substitute notes may as among themselves be pari passu, senior and subordinate and/or otherwise have varying principal amounts and economic terms, provided, however, that, subject to the effect of any prepayments of such substitute notes after an Event of Default, (i) the weighted average spread applicable to the substitutes notes shall not exceed the Spread, (ii) the economics of the Loan (or severed portions thereof) and other terms of the Loan, taken as a whole, shall not be modified by such fractionalization in a manner which is in any material respect adverse to Borrower (except any increase in the weighted average spread applicable to the substitute notes that may result after prepayments of the Loan have been made after an Event of Default) and (iii) subject only to the terms of Section 2.4.2(C) hereof regarding a Directed Paydown, all voluntary principal prepayments shall be applied ratably among the securities issued in connection with a Mezzanine Loan Securitization and any other interests in the Loan held outside the Mezzanine Loan Securitization.
(d) Borrower agrees that, if requested by Lender prior to, or in connection with, a Mezzanine Loan Securitization, the Borrower shall take all actions as are necessary to effect the “resizing” of the Loan, the Senior Loan and/or the First Mezzanine Loan, including any new mezzanine loans that Lender requires Borrower to enter into (provided the documents evidencing and securing such new loan(s) are substantially identical in form and substance to the Loan Documents); and provided further that Lender is then the holder of the Senior Loan, the First Mezzanine Loan and/or the Loan that is subject to the resizing. In such event, Borrower and Lender agree that if the principal amount of the Loan were to be increased (or a new mezzanine loan or loans are created) and, as a result, the principal amount of the Senior Loan and/or the First Mezzanine Loan were decreased, (i) the Borrower shall cause the borrowers under the Senior Loan and/or the First Mezzanine Loan and any such new mezzanine loan(s) to comply with its agreements to effect a “resizing”, and (ii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the borrower under the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s) (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s)) such additional amount equal to the amount of the principal increase/reduction of the Loan provided that Borrower and applicable borrower(s) under the Senior Loan and/or the First Mezzanine Loan execute and deliver any and all necessary amendments or modifications to the Loan Documents, organizational documents (including the creation of a new mezzanine borrower or borrowers) and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents. In addition, Borrower and Lender agree that if the principal amount of any of the Senior Loan and/or the First Mezzanine Loan were to be decreased and, as a result, the Loan Amount were increased, then (i) if “resizing” to decrease the size of the Senior Loan and/or the First Mezzanine Loan and increase the size of the Loan, each of them shall take all actions as are necessary to effect the “resizing” of the Loan and the Senior Loan and/or the First Mezzanine Loan, (ii) Borrower shall cause the applicable borrower(s) under the Senior Loan and/or the First Mezzanine Loan to comply with its agreements to effect a “resizing” and (iii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the Borrower (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Mezzanine Loan an additional amount equal to the amount of principal reduction of the Senior Loan and/or the First Mezzanine Loan, provided that Borrower, Property Owner and/or First Mezzanine Borrower and any new mezzanine borrowers execute and deliver any and all necessary modifications to the Loan Documents, the Senior Loan Documents and/or First Mezzanine Loan Documents. In connection with the foregoing, Borrower agrees, at Lender’s sole cost and expense, to execute and deliver such documents and other agreements reasonably required by Lender, as holder of the applicable promissory note(s"SERVICING AGREEMENT"), to “re-size” provide for the Loan, the Senior Loan and/or the First Mezzanine Loan, including, without limitation, an amendment to this Agreement, the Note, the Pledge Agreement, the other Loan Documents and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents, an endorsement to the Title Policy reflecting any increase in the insured amount thereunder (if applicable), an amendment to or replacement servicing of the Rate Cap Agreement for the Loan, the Senior Loan and/or the First Mezzanine Loan which is being resized reflecting the appropriate modification to the notional amount thereunder, receivables and an endorsement to the UCC title policies and, if applicable, mezzanine endorsements and related title letters, for the Loan and/or the First Mezzanine Loan which is being resized, reflecting the appropriate modification to the insured amount thereunder. Lender agrees to reimburse Borrower for all reasonable out-of-pocket costs and expenses (including, without limitation, reasonable attorney’s fees) incurred by Borrower in connection with any “resizing” of the Loan. Notwithstanding the foregoing, Lender agrees that any “resizing” of the Loan shall not change the economics of the Loan, the Senior Loan and/or the First Mezzanine Loan taken as a whole in a manner which is in any material respect adverse to Borrower, Property Owner and/or First Mezzanine Borrowercertain other matters.
Appears in 1 contract
The Note. (a) The Loan 1.1 GP Corp and MCM shall be evidenced amend and restate the Note and cancel all accrued interest thereon by delivery concurrent with the Note, execution and delivery of this Agreement of an amended and restated note in the an aggregate original principal amount of $3.3 million and in the Loan Amountform of Annex 1 (the “Amended Note”) against delivery by MCM of the original Note. The Note shall bear interest at the Applicable Interest Rate through GP Corp and including the Interest Accrual Period in which occurs the Maturity Date. The Note MCM hereby agree that all references to “Note” under that certain Collateral Assignment of Profit Sharing Agreement, dated as of November 3, 2016, between GP Corp and MCM shall be subject amended to repayment as provided in Section 2.3 hereof, shall be entitled refer to the benefits Amended Note, and the same is hereby acknowledged by GECM.
1.2 GP Corp shall deliver to MCM, as a condition the consummation of the transactions herein, a certificate of GP Corp executed by an authorized signatory of GP Corp attaching and certifying (a) the resolutions of GP Corp’s board of directors approving GP Corp’s entry into this Agreement and shall be secured by a Pledge granting a first priority Lien on each Borrower’s the Amended Note and certain of its Affiliates’ ownership the consummation of the Ownership Interests transactions contemplated hereby and by certain of the other Loan Documents.
thereby, (b) The Borrower a copy of GP Corp’s certificate of incorporation certified by the Secretary of State of the State of Delaware, (c) a copy of the by-laws of GP Corp, and (d) a certificate of good standing for GP Corp from the State of Delaware and each other jurisdiction where the Obligor conducts business.
1.3 GP Corp shall maintaindeliver to MCM, or cause to be maintainedas a condition the consummation of the transactions herein, a register certificate of GP Corp executed by an authorized signatory of GP Corp certifying that (a) the “Register”) at representations and warranties of GP Corp herein and in the address to which notices to the Borrower Amended Note are to be sent hereundertrue, on which it shall enter the name or names correct and complete in all material respects as of the registered owner Effective Date, (b) no Event of Default (as defined in the Amended Note) exists or owners would result from time to time the consummation of the Notes. The Notes (or, if applicable, each Note) may be independently assigned or otherwise transferred in whole or in part (including, without limitation, the sale of any participation interests in the Notes transactions contemplated by Lender) by registration of such assignment or transfer on the Register (and the Notes shall expressly so provide). Any assignment or transfer on the Register (and the Notes evidencing the same) may be effected by registration of such assignment or transfer on the Register. At the request of Lender or any designated assignee or transferee of any of the Notes, Borrowers shall (i) issue to Lender this Agreement or the designated assignee Amended Note, (c) no consents, licenses or transferee one or more new Notes in the same aggregate principal amount of the Notes (which Notes may contain components and/or subcomponents of the debt evidenced by such Notes) so assigned or transferred upon delivery to Borrowers of the Notes so assigned or transferred and (ii) reasonably cooperate with Lender approvals are required in connection with Lender’s assignment the consummation by GP Corp of any interest in the Loan. The Register shall be available for inspection transactions contemplated by Lender at any reasonable time upon reasonable prior notice.
(c) Borrower agrees that it shall, upon request, reasonably cooperate with Lender in connection with any request by Lender to sever this Agreement or the Note into two (2) or more separate substitute notes in an aggregate principal amount equal to the Loan Amount and to reapportion the Loan among such separate substitute notes, including, without limitation, by executing and delivering to Lender new substitute notes to replace the Amended Note, amendments to or replacements of existing Loan Documents to reflect such severance and/or legal opinions with respect to such substitute notes, amendments and/or replacements. Notwithstanding the foregoing, Borrower shall not be required to incur any post-closing costs or expenses relating to the severance of the Note, other than Borrower’s internal costs and expenses and the fees and disbursements of Borrower’s counsel with respect to the issuance of a new enforceability opinion in connection with any such substitute notes. Any such substitute notes may as among themselves be pari passu, senior and subordinate and/or otherwise have varying principal amounts and economic terms, provided, however, that, subject to the effect of any prepayments of such substitute notes after an Event of Default, (i) the weighted average spread applicable to the substitutes notes shall not exceed the Spread, (ii) the economics of the Loan (or severed portions thereof) and other terms of the Loan, taken as a whole, shall not be modified by such fractionalization in a manner which is in any material respect adverse to Borrower (except any increase in the weighted average spread applicable to the substitute notes that may result after prepayments of the Loan have been made after an Event of Default) and (iii) subject only to the terms of Section 2.4.2(C) hereof regarding a Directed Paydown, all voluntary principal prepayments shall be applied ratably among the securities issued in connection with a Mezzanine Loan Securitization and any other interests in the Loan held outside the Mezzanine Loan Securitization.
(d) Borrower agrees that, if requested other than the transactions contemplated by Lender prior to, or in connection with, a Mezzanine Loan Securitization, the Borrower shall take all actions as are necessary to effect the “resizing” of the Loan, the Senior Loan and/or the First Mezzanine Loan, including any new mezzanine loans that Lender requires Borrower to enter into (provided the documents evidencing and securing such new loan(s) are substantially identical in form and substance to the Loan Documents); and provided further that Lender is then the holder of the Senior Loan, the First Mezzanine Loan and/or the Loan that is subject to the resizing. In such event, Borrower and Lender agree that if the principal amount of the Loan were to be increased (or a new mezzanine loan or loans are created) and, as a result, the principal amount of the Senior Loan and/or the First Mezzanine Loan were decreased, (i) the Borrower shall cause the borrowers under the Senior Loan and/or the First Mezzanine Loan and any such new mezzanine loan(s) to comply with its agreements to effect a “resizing”, and (ii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the borrower under the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s) (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s)) such additional amount equal to the amount of the principal increase/reduction of the Loan provided that Borrower and applicable borrower(s) under the Senior Loan and/or the First Mezzanine Loan execute and deliver any and all necessary amendments or modifications to the Loan Documents, organizational documents (including the creation of a new mezzanine borrower or borrowers) and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents. In addition, Borrower and Lender agree that if the principal amount of any of the Senior Loan and/or the First Mezzanine Loan were to be decreased and, as a result, the Loan Amount were increased, then (i) if “resizing” to decrease the size of the Senior Loan and/or the First Mezzanine Loan and increase the size of the Loan, each of them shall take all actions as are necessary to effect the “resizing” of the Loan and the Senior Loan and/or the First Mezzanine Loan, (ii) Borrower shall cause the applicable borrower(s) under the Senior Loan and/or the First Mezzanine Loan to comply with its agreements to effect a “resizing” and (iii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend to the Borrower (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Mezzanine Loan an additional amount equal to the amount of principal reduction of the Senior Loan and/or the First Mezzanine Loan, provided that Borrower, Property Owner and/or First Mezzanine Borrower and any new mezzanine borrowers execute and deliver any and all necessary modifications to the Loan Documents, the Senior Loan Documents and/or First Mezzanine Loan Documents. In connection with the foregoing, Borrower agrees, at Lender’s sole cost and expense, to execute and deliver such documents and other agreements reasonably required by Lender, as holder of the applicable promissory note(s), to “re-size” the Loan, the Senior Loan and/or the First Mezzanine Loan, including, without limitation, an amendment to this Agreement, the Notesince November 3, the Pledge Agreement2016, the other Loan Documents and the applicable Senior Loan Documents and/or First Mezzanine Loan Documentsthere has been no event or circumstance that has had or could reasonably be expected to have, an endorsement to the Title Policy reflecting any increase either individually or in the insured amount thereunder aggregate, a Material Adverse Effect (if applicableas defined in the Amended Note), an amendment to or replacement of the Rate Cap Agreement for the Loan, the Senior Loan and/or the First Mezzanine Loan which is being resized reflecting the appropriate modification to the notional amount thereunder, and an endorsement to the UCC title policies and, if applicable, mezzanine endorsements and related title letters, for the Loan and/or the First Mezzanine Loan which is being resized, reflecting the appropriate modification to the insured amount thereunder. Lender agrees to reimburse Borrower for all reasonable out-of-pocket costs and expenses (including, without limitation, reasonable attorney’s fees) incurred by Borrower in connection with any “resizing” of the Loan. Notwithstanding the foregoing, Lender agrees that any “resizing” of the Loan shall not change the economics of the Loan, the Senior Loan and/or the First Mezzanine Loan taken as a whole in a manner which is in any material respect adverse to Borrower, Property Owner and/or First Mezzanine Borrower.
Appears in 1 contract
Samples: Separation Agreement
The Note. (a) The obligation of the Borrower to pay the Loan Amount or, if less, the aggregate unpaid principal amount of all Advances made by the Lender hereunder plus accrued interest thereon, shall be evidenced by the NoteNote and payable in accordance therewith. In the event the Note is lost, destroyed or mutilated at any time prior to payment in full of the indebtedness evidenced thereby, the Borrower shall execute a new note substantially in the aggregate original principal amount form of the Loan AmountNote. The Note shall bear interest at provides for a term ("Initial Term") commencing on the Applicable Interest Rate through date hereof and including ending on July 30, 2003, or such earlier date, if any, to which the Interest Accrual Period in scheduled maturity date is accelerated under the terms of the Note or such later date, if any, to which occurs the scheduled maturity date is extended as set forth below (the "Maturity Date"). The Note shall be Initial Term is subject to repayment as provided two (2), one-year extension rights upon satisfaction of the conditions set forth below with respect to each such extension option and subject, in Section 2.3 hereofall events, shall be entitled to the benefits rights of this Agreement acceleration in the Note:
(a) Borrower and Guarantor shall be secured by have delivered to Lender a Pledge granting a first priority Lien on each Borrower’s "date-down" certificate certifying to Lender's satisfaction that all the representations and certain of its Affiliates’ ownership of the Ownership Interests and by certain warranties contained herein or in any of the other Loan Documents.Documents are true and complete as of the date of the request for the extension and the date of commencement of the extension period (subject, with respect to any representation that relates expressly to an earlier date, any update thereof acceptable to Lender having the effect of making such representation then currently accurate);
(b) The Project Completion shall have been achieved;
(c) No Default or Event of Default shall exist;
(d) Borrower shall maintainhave given Lender written notice of Borrower's request to exercise its extension right at least thirty (30) days, or cause to be maintainedbut no more than one hundred twenty (120) days, a register (before the “Register”) at the address to which notices to the Borrower are to be sent hereunder, on which it shall enter the name or names of the registered owner or owners from time to time of the Notes. The Notes Maturity Date (or, if applicablein the case of a second one-year extension, each Notethe Maturity Date, as previously extended);
(e) may be independently assigned Without limiting clause (c) above, no breach of any covenants imposed upon Borrower or otherwise transferred in whole or in part (Guarantor shall exist including, without limitation, the sale covenants relating to loan to value ratio and Debt Service Coverage Ratio, set forth in Section 11.10 of any participation interests this Agreement. Lender shall have the right to require Borrower to obtain an updated Appraisal satisfactory to Lender in all material respects and at Borrower's expense, showing continuing compliance with the Notes by Lenderloan to value ratio covenant as of a date not more than thirty (30) by registration of such assignment or transfer on days prior to the Register (and the Notes shall expressly so provide). Any assignment or transfer on the Register (and the Notes evidencing the same) may be effected by registration of such assignment or transfer on the Register. At the request of Lender or any designated assignee or transferee of any date of the Notes, Borrowers shall contemplated extension;
(if) issue to Lender or the designated assignee or transferee one or more new Notes in the same aggregate principal amount All of the Notes conditions set forth in Section 7 of this Agreement, to the extent applicable, shall continue to be satisfied;
(which Notes may contain components and/or subcomponents g) Borrower shall have paid, for each such extension, an extension fee equal to 1/8% of the debt evidenced by such Notes) so assigned or transferred upon delivery to Borrowers of the Notes so assigned or transferred and (ii) reasonably cooperate with Lender in connection with Lender’s assignment of any interest in the Loan. The Register shall be available for inspection by Lender at any reasonable time upon reasonable prior notice.
(c) Borrower agrees that it shall, upon request, reasonably cooperate with Lender in connection with any request by Lender to sever the Note into two (2) or more separate substitute notes in an aggregate principal amount equal to the Loan Amount and to reapportion the Loan among such separate substitute notes, including, without limitation, by executing and delivering to Lender new substitute notes to replace the Note, amendments to or replacements of existing Loan Documents to reflect such severance and/or legal opinions with respect to such substitute notes, amendments and/or replacements. Notwithstanding the foregoing, Borrower shall not be required to incur any post-closing costs or expenses relating to the severance of the Note, other than Borrower’s internal costs and expenses and the fees and disbursements of Borrower’s counsel with respect to the issuance of a new enforceability opinion in connection with any such substitute notes. Any such substitute notes may as among themselves be pari passu, senior and subordinate and/or otherwise have varying principal amounts and economic terms, provided, however, that, subject to the effect of any prepayments of such substitute notes after an Event of Default, (i) the weighted average spread applicable to the substitutes notes shall not exceed the Spread, (ii) the economics of the Loan (or severed portions thereof) and other terms of the Loan, taken as a whole, shall not be modified by such fractionalization in a manner which is in any material respect adverse to Borrower (except any increase in the weighted average spread applicable to the substitute notes that may result after prepayments of the Loan have been made after an Event of Default) and (iii) subject only to the terms of Section 2.4.2(C) hereof regarding a Directed Paydown, all voluntary principal prepayments shall be applied ratably among the securities issued in connection with a Mezzanine Loan Securitization and any other interests in the Loan held outside the Mezzanine Loan Securitization.
(d) Borrower agrees that, if requested by Lender prior to, or in connection with, a Mezzanine Loan Securitization, the Borrower shall take all actions as are necessary to effect the “resizing” of the Loan, the Senior Loan and/or the First Mezzanine Loan, including any new mezzanine loans that Lender requires Borrower to enter into (provided the documents evidencing and securing such new loan(s) are substantially identical in form and substance to the Loan Documents); and provided further that Lender is then the holder of the Senior Loan, the First Mezzanine Loan and/or the Loan that is subject to the resizing. In such event, Borrower and Lender agree that if the outstanding principal amount of the Loan were (plus any unadvanced portions thereof available for disbursement for Project Costs or as otherwise available pursuant to be increased (or a new mezzanine loan or loans are createdSection 2.1 hereof) and, as a result, the principal amount of the Senior Loan and/or the First Mezzanine Loan were decreased, (i) the Borrower shall cause the borrowers under the Senior Loan and/or the First Mezzanine Loan and any such new mezzanine loan(s) to comply with its agreements to effect a “resizing”, and (ii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” proposed extension, plus reimbursed Lender for all third-party fees and expenses incurred by Lender (including reasonable attorney fees and costs) in connection with such extension;
(h) As set forth in the Note, monthly principal amortization payments shall be required on the first day of the Loan lend to the borrower under the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s) (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Mezzanine Loan or new mezzanine loan(s)) such additional each month during an extension period in an amount equal to the amount Monthly Principal Payment Amount (as defined in the Note);
(i) At the election of the principal increase/reduction of the Loan Lender, Borrower shall have provided evidence to Lender that Borrower and applicable borrower(shas placed into effect for the extension period an interest rate protection arrangement satisfactory to Lender; and
(j) under the Senior Loan and/or the First Mezzanine Loan execute and deliver Within fifteen (15) days of any and all necessary amendments or modifications to the Loan Documents, organizational documents (including the creation of a new mezzanine borrower or borrowers) and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents. In additionrequest therefor, Borrower and Guarantor shall have executed and delivered to Lender agree that if the principal amount of any of the Senior Loan and/or the First Mezzanine Loan were to be decreased and, such agreements and documents as a result, the Loan Amount were increased, then (i) if “resizing” to decrease the size of the Senior Loan and/or the First Mezzanine Loan and increase the size of the Loan, each of them shall take all actions as are necessary to effect the “resizing” of the Loan and the Senior Loan and/or the First Mezzanine Loan, (ii) Borrower shall cause the applicable borrower(s) under the Senior Loan and/or the First Mezzanine Loan to comply with its agreements to effect a “resizing” and (iii) Lender, as holder of the applicable promissory note(s), shall on the date of the “resizing” of the Loan lend Lender may reasonably require incident to the Borrower (by way of a reallocation of the principal amount of the Loan, the Senior Loan and/or the First Mezzanine Loan an additional amount equal to the amount of principal reduction of the Senior Loan and/or the First Mezzanine Loan, provided that Borrower, Property Owner and/or First Mezzanine Borrower and any new mezzanine borrowers execute and deliver any and all necessary modifications to the Loan Documents, the Senior Loan Documents and/or First Mezzanine Loan Documents. In connection with the foregoing, Borrower agrees, at Lender’s sole cost and expense, to execute and deliver such documents and other agreements reasonably required by Lender, as holder of the applicable promissory note(s), to “re-size” the Loan, the Senior Loan and/or the First Mezzanine Loan, including, without limitation, an amendment to this Agreement, the Note, the Pledge Agreement, the other Loan Documents and the applicable Senior Loan Documents and/or First Mezzanine Loan Documents, an endorsement to the Title Policy reflecting any increase in the insured amount thereunder (if applicable), an amendment to or replacement of the Rate Cap Agreement for the Loan, the Senior Loan and/or the First Mezzanine Loan which is being resized reflecting the appropriate modification to the notional amount thereunder, and an endorsement to the UCC title policies and, if applicable, mezzanine endorsements and related title letters, for the Loan and/or the First Mezzanine Loan which is being resized, reflecting the appropriate modification to the insured amount thereunder. Lender agrees to reimburse Borrower for all reasonable out-of-pocket costs and expenses (including, without limitation, reasonable attorney’s fees) incurred by Borrower in connection with any “resizing” of the Loan. Notwithstanding the foregoing, Lender agrees that any “resizing” of the Loan shall not change the economics of the Loan, the Senior Loan and/or the First Mezzanine Loan taken as a whole in a manner which is in any material respect adverse to Borrower, Property Owner and/or First Mezzanine Borrowerextension.
Appears in 1 contract
Samples: Acquisition and Construction Loan Agreement (Praecis Pharmaceuticals Inc)
