Additional Advances. Each Lender will, on each of April 15, 2017, May 15, 2017 and June 15, 2017 (each, together with the Closing Date, shall be deemed to be an “Installment Date”), deliver the amount of such Lender’s Pro Rata Share of Two Million Dollars ($2,000,000) (each such advance, together with the advances delivered on the Closing Date, an “Advance”), by check payable to the Company or by wire transfer to a bank account designated by the Company, provided that each Lender’s obligation to fund each Advance is subject to the Lender’s receipt from the Company of a written notice (the “Funding Notice”), substantially in the form attached hereto as Exhibit E, of the Company’s election to borrow such Advance at least five (5) Business Days prior to the date of such Advance (it being understood that neither Lender shall have an obligation to make the Advance to which such notice relates if the Company has failed to timely provide such Funding Notice to such Lender, unless waived by such Lender. In addition, no Lender shall be required make an Advance to the Company (i) on an Installment Date occurring after April 30, 2017 if the Company has not completed its first Public Offering on or prior to ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) if either ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ no longer serves as an executive officer the Company as of the applicable Installment Date, or (iii) if an Event of Default has occurred and is continuing, provided that notwithstanding clauses (i) through (iii) above, each Lender may, in its sole discretion, elect to make such Advance to the Company upon receipt of the Funding Notice (to the extent not otherwise waived) as set forth above. If any Lender fails to make an Advance (pursuant to a Funding Notice validly given by the Company hereunder) on an Installment Date (a “Defaulting Lender”) occurring on (a) April 15, 2017 as required pursuant to this Section 1.4, such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2.2, and seventy-five percent (75%) of the Upfront Shares issued to Lender shall be cancelled and forfeited automatically, without any action required on the part of the Defaulting Lender, or (b) May 15, 2017 or June 15, 2017 as required pursuant to this Section 1.4, such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2.
Appears in 2 contracts
Sources: Note Purchase Agreement, Note Purchase Agreement (Veritone, Inc.)
Additional Advances. Each Lender will, on each of April 15, 2017, May 15, 2017 and June 15, 2017 (each, together with the Closing Date, a) The Company shall be deemed entitled to make three additional draws under this Note, subject to the terms and conditions set forth in Section 4(f).
(b) The Company shall be an “Installment Date”), deliver entitled to make a second draw in the amount of such Lender’s Pro Rata Share of Two Twelve Million Five Hundred Thousand Dollars ($2,000,00012,500,000) (each such advance, together with the advances delivered on the Closing Date, an “Advance”), by check payable upon securing a settlement of amounts outstanding to the Company or by wire transfer to a bank account designated by the Company, provided that each Lender’s obligation to fund each Advance is subject to the Lender’s receipt from the Company previous owners of a written notice (the “Funding Notice”), substantially in the form attached hereto as Exhibit E, of the Company’s election to borrow such Advance at least five (5) Business Days prior to the date of such Advance (it being understood that neither Lender shall have an obligation to make the Advance to which such notice relates if the Company has failed to timely provide such Funding Notice to such Lender, unless waived by such Lender. In addition, no Lender shall be required make an Advance to the Company (i) on an Installment Date occurring after April 30, 2017 if the Company has not completed its first Public Offering on or prior to W▇▇▇▇▇-▇▇▇▇▇ ▇▇(the “Second Draw”);
(c) The Company shall be entitled to make a third draw in the amount of Seven Million Five Hundred Thousand Dollars ($7,500,000) at the time the Company files a quarterly report on Form 10-Q or annual report on Form 10-K that shows that the Company has achieved positive net income on a consolidated basis in the most recent reporting period (the “Third Draw”);
(d) The Company shall be entitled to make a fourth draw in the amount of Fifteen Million Dollars ($15,000,000) at the time the Company receives approval from all appropriate regulatory authorities to acquire Commercial Bancorp of Wyoming (the “Fourth Draw”).
(e) The Company may make the Second Draw, ▇▇▇▇Third Draw or Fourth Draw in any order, regardless of whether a prior draw has been made and regardless of whether the Note shall have been converted pursuant to Section 5, and at any time after condition specified for the related draw has been met as well as any conditions set forth in Section 4(f).
(f) At the time of each subsequent draw, (▇▇i) if either ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ no longer serves as an executive officer all of the representations and warranties of the Company as contained in the Purchase Agreement shall be true and correct in all material respects, subject to appropriate adjustments to update any of such representations and warranties, (ii) the Company shall deliver all documents required to be delivered at the Closing pursuant to Sections 6(h) and 6(i) of the applicable Installment DatePurchase Agreement, or (iii) if an the Maturity Date shall not have occurred and (iv) there shall be no Default or Event of Default has occurred and is continuingcontinuing under this Note.
(g) Upon each draw, provided that notwithstanding clauses (i) through (iii) above, each Lender may, in its sole discretion, elect to make such Advance to the Company upon receipt outstanding principal balance of the Funding Notice (to the extent not otherwise waived) as set forth above. If any Lender fails to make an Advance (pursuant to a Funding Notice validly given by the Company hereunder) on an Installment Date (a “Defaulting Lender”) occurring on (a) April 15, 2017 as required pursuant to this Section 1.4, such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2.2, and seventy-five percent (75%) of the Upfront Shares issued to Lender Note shall be cancelled automatically increased and forfeited automatically, without any action required interest shall accrue on the part of the Defaulting Lender, or (b) May 15, 2017 or June 15, 2017 as required pursuant to this Section 1.4, such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2new amount outstanding.
Appears in 1 contract
Additional Advances. Each Lender will14
(a) If (i) Borrower requests an Additional Advance under Section [2.1(b)] of the Loan Agreement and the Administrator (or the Servicer acting on its behalf) reasonably determines that all conditions to the applicable Additional Advance set forth in Section [2.1(b)] of the Loan Agreement have been satisfied in full, then the Administrator (or the Servicer acting on its behalf) shall give written notice thereof to each of April 15the Holders, 2017, May 15, 2017 and June 15, 2017 (each, together with the Closing Date, which notice shall be deemed to be an “Installment Date”), deliver set forth the amount of such LenderAdditional Advance, the portion thereof that is payable by each Holder (which shall be based on such Holder’s Pro Rata Share Percentage Interest) and the date on which each Holder is requested to remit its pro rata share of Two Million Dollars such Additional Advance thereof to the Administrator ($2,000,000or the Servicer acting on its behalf), and shall describe in reasonable detail the purpose for such Additional Advance.
(b) Each Holder shall be obligated to fund its pro rata share of each Additional Advance based on each Holder’s Percentage Interest.
(each such advance, together with c) If any Holder defaults in its obligation to advance its pro rata share of any Additional Advance approved by Administrator (or the advances delivered Servicer acting on its behalf) on the Closing Date, an “Advance”), by check payable to the Company or by wire transfer to a bank account designated by the Company, provided that each Lender’s obligation to fund each Advance is subject to the Lender’s receipt from the Company of a written notice date (the “Funding NoticeDate”) that such Advance is required to be made hereunder (such unfunded amount, a “Delinquent Advance Amount”), substantially such Holder shall be a “Delinquent Advance Holder” for all purposes hereunder until and unless such delinquency is cured in accordance with the form attached hereto terms of clause (iii) below, and the following provisions shall apply:
(i) Each Holder that is not a Delinquent Advance Holder (a “Non-Delinquent Advance Holder”) shall have the right, but not the obligation, to fund such Delinquent Advance Holder’s portion of such Additional Advance, and the amount so funded by the Non-Delinquent Advance Holder shall bear interest at the Mortgage Default Rate, which shall be payable pursuant to Section 3 hereof (any Non-Delinquent Advance Holder making any such advance, an “Electing Non-Delinquent Advance Holder”). 14 Delete Section 35 if the Loan does not include future advances.
(ii) Subject to Delinquent Advance Holder’s right to cure as Exhibit Eprovided in clause (iii) below, but notwithstanding anything else to the contrary contained in this Agreement, a Delinquent Advance Holder shall have no right to participate in any discussions among and/or decisions by Holders hereunder and/or under the other Loan Documents. Further, any Delinquent Advance Holder shall be bound by any amendment to, or waiver of, any provision of, or any action taken or omitted to be taken by the Administrator, the Servicer and/or the Non-Delinquent Advance Holder(s) under, any Loan Document which is made subsequent to the Delinquent Advance Holder’s becoming a Delinquent Advance Holder and prior to such Delinquent Advance Holder’s cure of such delinquency.
(iii) A Delinquent Advance Holder may cure a delinquency arising out of its failure to fund its required portion of any Additional Advance if, within thirty (30) days following the Company’s election Funding Date (the “Cure Period”), it remits to borrow the Servicer its required portion of such Additional Advance (together with interest thereon at the Mortgage Default Rate for the period from the date such Advance at least five (5) Business Days prior to was made until the date of such Advance (it being understood that neither Lender shall have an obligation to make the Advance to which such notice relates if the Company has failed to timely provide such Funding Notice to such Lender, unless waived by such Lenderrepayment). In additionthe event any Delinquent Advance Holder cures a delinquency, no Lender such Delinquent Advance Holder nonetheless shall be required make an bound by any amendment to or waiver or any provision of, or any action taken or omitted to be taken by the Servicer and/or the Non-Delinquent Advance Holders under, any Loan Document which is made subsequent to the Company (i) on an Installment Date occurring after April 30, 2017 if the Company has not completed its first Public Offering on or that Holder’s becoming a Delinquent Advance Holder and prior to ▇▇▇▇▇ ▇▇its curing the delinquency as provided in this Section 35(c), ▇▇▇▇provided, that such amendment or waiver of action was taken in accordance with the provisions of this Agreement.
(▇▇iv) if either ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ no longer serves as an executive officer the Company as Any Delinquent Advance Holder agrees to indemnify and save harmless Administrator, Servicer and each of the applicable Installment Dateother Holders and their respective successors and assigns, and each of their agents, employees, officers, directors, stockholders, partners and members (collectively, “Indemnified Parties”) for, from and against any claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or (iii) if an Event of Default has occurred nature, known or unknown, contingent or otherwise, whether incurred or imposed within or outside the judicial process, including, without limitation, reasonable attorneys’ fees and is continuing, provided that notwithstanding clauses (i) through (iii) above, each Lender may, in its sole discretion, elect to make such Advance to the Company disbursements imposed upon receipt or incurred by or asserted against any of the Funding Notice (Indemnified Parties by reason of Delinquent Advance Holder’s failure to comply with the extent not otherwise waived) as set forth above. If any Lender fails provisions hereof, including, without limitation, failing to make an Additional Advance (pursuant to a Funding Notice validly given by the Company hereunder) on an Installment Date (a “Defaulting Lender”) occurring on (a) April 15, 2017 as which is required pursuant to this Section 1.4, such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2.2, and seventy-five percent (75%) the terms of the Upfront Shares issued to Loan Documents, the terms of which shall survive the termination of this Agreement.] -44- Co-Lender shall be cancelled and forfeited automatically, without any action required on the part of the Defaulting Lender, or (b) May 15, 2017 or June 15, 2017 as required pursuant to this Section 1.4, such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2.Agreement
Appears in 1 contract
Sources: Master Repurchase and Securities Contract Agreement (Starwood Credit Real Estate Income Trust)
Additional Advances. Each Lender will, on each of April 15, 2017, May 15, 2017 and June 15, 2017 (each, together with i) On any Business Day prior to the Closing Repurchase Date, shall be deemed if at any time there exists Margin Excess with respect to be a Purchased Asset, Seller may submit to Buyer a request that Buyer transfer cash to Seller so as to increase the outstanding Purchase Price for such Purchased Asset in the amount (not to exceed the Margin Excess) requested by Seller (an “Installment Date”), deliver the amount of such Lender’s Pro Rata Share of Two Million Dollars ($2,000,000) (each such advance, together with the advances delivered on the Closing Date, an “Additional Advance”), by check payable . Buyer’s agreement to the Company or by wire transfer to a bank account designated by the Company, provided that each Lendermake any Additional Advance shall be in Buyer’s obligation to fund each Advance sole discretion and in any case is subject to the Lender’s receipt from the Company of a written notice (the “Funding Notice”), substantially in the form attached hereto as Exhibit E, satisfaction of the Company’s election to borrow such Advance at least five (5) Business Days following conditions precedent, both immediately prior to the date of making such Additional Advance (it being understood that neither Lender shall have an obligation to make the Advance to which such notice relates if the Company has failed to timely provide such Funding Notice to such Lender, unless waived by such Lender. In addition, no Lender shall be required make an Advance and also after giving effect to the Company consummation thereof:
(iA) on an Installment Date occurring after April 30, 2017 if the Company has not completed its first Public Offering on or prior to ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) if either ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ no longer serves as an executive officer the Company as of the applicable Installment Datefunding of such Additional Advance, no Margin Deficit that is due and payable, Potential Event of Default, or (iii) if an Event of Default has occurred and is continuing, provided that notwithstanding clauses continuing or would result from the funding of such Additional Advance;
(B) [intentionally omitted];
(C) the funding of the Additional Advance would not cause (i) through the aggregate outstanding Purchase Price for all Purchased Assets to exceed the Maximum Facility Amount or (ii) the Purchase Price of such Purchased Asset to exceed Seventy-Five Million and No/100 Dollars ($75,000,000.00) unless otherwise approved by Buyer;
(D) the amount of the Additional Advance is no less than One Million and No/100 Dollars ($1,000,000.00); and
(E) Buyer shall have satisfactorily completed all applicable credit approval requirements. 41
(ii) On the date of the Additional Advance, which shall occur following the final approval of the Additional Advance that all conditions set forth in this Article 3(k) have been satisfied, Buyer shall transfer cash to Seller as provided in this Article 3(k) (and in accordance with the wire instructions provided by Seller in such request). Upon approval by Buyer of a particular Additional Advance pursuant to this Article 3(k), Buyer and Seller shall modify the existing Confirmation for the applicable Transaction to set forth the new Advance Rate, the outstanding Purchase Price for such Purchased Asset and any other modifications to the terms set forth on the existing Confirmation.
(iii) above, each Lender may, in its sole discretion, elect to make such Advance Notwithstanding anything contained herein to the Company upon receipt of the Funding Notice contrary, Seller may not request an Additional Advance more than two (to the extent not otherwise waived2) as set forth above. If times in any Lender fails to make an Advance (pursuant to a Funding Notice validly given by the Company hereunder) on an Installment Date (a “Defaulting Lender”) occurring on (a) April 15, 2017 as required pursuant to this Section 1.4, such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2.2, and seventy-five percent (75%) of the Upfront Shares issued to Lender shall be cancelled and forfeited automatically, without any action required on the part of the Defaulting Lender, or (b) May 15, 2017 or June 15, 2017 as required pursuant to this Section 1.4, such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2.calendar month
Appears in 1 contract
Sources: Master Repurchase and Securities Contract Agreement (Fortress Credit Realty Income Trust)
Additional Advances. Each Subject to the terms and conditions of this ------------------- Agreement, Lender will, on each of April 15, 2017, May 15, 2017 and June 15, 2017 (each, together with the Closing Date, shall be deemed obligated to be an “Installment Date”), deliver make up to three additional advances of the amount of such Lender’s Pro Rata Share of Two Million Loan to Borrower as follows:
(i) One Hundred Seventy- Five Thousand Dollars ($2,000,000175,000.00) (the "First Additional Advance"); (ii) One Hundred Seventy-Five Thousand Dollars ($175,000.00) (the "Second Additional Advance"); and (iii) Four Hundred Thousand Dollars ($400,000.00) (the "Third Additional Advance") (each such advance, together with the advances delivered on the Closing Dateindividually, an “"Additional Advance”" and collectively the "Additional Advances"), by check payable to the Company or by wire transfer to a bank account designated by the Company, provided that each Lender’s obligation to fund each . Each such Additional Advance is subject to the Lender’s receipt from conditions set forth in this Agreement, with respect to that respective Additional Advance, including without limitation those listed on Schedule 6(a). ------------- Upon Borrower's good faith belief that the Company of a written conditions listed on Schedule 6(a) have been achieved, Borrower shall send notification and ------------- documentary support thereof to Lender at the notice (the “Funding Notice”), substantially address specified in the form attached hereto as Exhibit E, signature block of this Agreement. Borrower agrees to provide a reasonable number of days for Lender to research and confirm Borrower's achievement of the Company’s election to borrow such Advance at least five (5) Business Days prior milestones; with respect to the date of such Third Additional Advance (it being understood that neither only, Lender shall have an obligation 30 days to make research and determine whether Borrower has achieved the milestones required for the Third Additional Advance. If Lender disputes Borrower's achievement of the milestones, Lender shall provide reasonably detailed notice to Borrower of the reasons Lender believes Borrower has not achieved the milestones. Upon Lender's written confirmation that Borrower has achieved the milestones, Lender shall cause the appropriate Additional Advance to which such notice relates if be deposited in the Company has failed to timely provide such Funding Notice to such LenderDisbursement Account, unless waived by such Lender. In addition, no Lender shall be required make an Advance to the Company within two business days following (i) on an Installment Date occurring after April 30, 2017 if the Company has not completed its first Public Offering on or prior to ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) if either ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ no longer serves as an executive officer the Company as achievement of the applicable Installment Date, or (iii) if an Event of Default has occurred and is continuing, provided that notwithstanding clauses (i) through (iii) above, each Lender may, in its sole discretion, elect to make such Advance to the Company upon receipt of the Funding Notice (to the extent not otherwise waived) as set forth above. If any Lender fails to make an Advance (pursuant to a Funding Notice validly given by the Company hereunder) on an Installment Date (a “Defaulting Lender”) occurring on (a) April 15, 2017 as required pursuant to this Section 1.4, such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2.2milestones, and seventy-five percent (75%ii) of the Upfront Shares issued delivery to Lender shall be cancelled and forfeited automatically, without of any action documentation or certificates required on the part of the Defaulting Lender, or (b) May 15, 2017 or June 15, 2017 as required pursuant to under this Section 1.4, such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2Agreement.
Appears in 1 contract
Additional Advances. Each Lender will, (a) If Borrower shall receive a request for a future advance on each of April 15, 2017, May 15, 2017 and June 15, 2017 the Asset (each, together with the Closing Date, shall be deemed to be an “Installment DateUnderlying Additional Advance”) from the Underlying Borrower, Servicer, Co-Lender Agent or other Person pursuant to the Underlying Loan Documents for the Asset, Borrower may submit a written request for an Additional Advance (an “Additional Advance Request”), deliver the amount of such Lender’s Pro Rata Share of Two Million Dollars ($2,000,000) (each such advance, together with the advances delivered on the Closing Date, an “Advance”), by check payable to the Company or by wire transfer to a bank account designated by the Company, provided that each Lender’s obligation to fund each Advance is subject to the Lender’s receipt from the Company of a written notice (the “Funding Notice”), substantially in the form attached hereto as Exhibit ED, to Lender (but not more often than once per month unless approved by the Agent on the Underlying Loan (other than in connection with the funding of interest on the Company’s election to borrow such Advance at least Underlying Loan)) and, within five (5) Business Days after receipt of such Additional Advance Request, Lender shall make an Additional Advance to Borrower in an amount equal to the product of (i) the amount of the future advance requested to be funded by Borrower with respect to the Asset under the Underlying Loan Documents (the “Underlying Advance Request Amount”) multiplied by (ii) the Advance Rate, provided that each of the following conditions have been satisfied (or waived in writing by Lender in its sole discretion or pursuant to Section 2.07(b):
(i) no monetary or material non-monetary Default or Event of Default shall be continuing both as of the date of the Additional Advance Request and as of the date of funding of such Additional Advance;
(ii) no monetary or material non-monetary Underlying Loan Event of Default shall be continuing both as of the date of the Additional Advance Request and as of the date of funding of such Additional Advance;
(iii) all of the representations and warranties of Borrower and Guarantor contained in this Loan Agreement and the other Loan Documents shall be true and correct in all material respects both as of the date of the Additional Advance Request and as of the date of funding of such Additional Advance, expect for any exceptions disclosed to Lender in writing and approved by Lender prior to the date of such Advance Closing Date;
(it being understood that neither iv) Lender shall have an obligation received a copy of the Draw Request (as defined in the Underlying Loan Agreement) together with copies of all supporting documents and information received by Borrower in connection with such Draw Request and shall have determined in its reasonable discretion that all conditions precedent to make the Advance to which funding of such notice relates if future advance under the Company has failed to timely provide such Funding Notice to such LenderUnderlying Loan Documents including, unless waived by such Lender. In additionwithout limitation, no Lender each of the conditions set forth in Sections 2.9 and 2.10 of the Underlying Loan Agreement have been satisfied in all material respects;
(v) Borrower shall have funded, or shall be required make an Advance contemporaneously funding, to the Company Underlying Borrower, the Co-Lender Agent or other applicable party an amount equal to the difference between (i) on an Installment Date occurring the Underlying Advance Request Amount and (ii) the amount of the Additional Advance to be funded by Lender pursuant to the Additional Advance Request;
(vi) after April 30giving effect to such Additional Advance the aggregate amount of Additional Advances made by Lender shall not exceed the Additional Advance Cap; and
(vii) Borrower shall have paid all of Lender’s reasonable out of pocket costs and expenses (including, 2017 if without limitation, reasonable attorneys’ fees and disbursements and including the Company has not completed its first Public Offering on or prior to ▇▇▇▇▇ ▇▇cost of any construction consultant retained by Lender; provided, ▇▇▇▇however, (▇▇that for so long as Lender is a Co-Lender Affiliate, Lender shall use the same construction consultant as the Underlying Lender) if either ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ no longer serves as an executive officer incurred in connection with the Company review of and funding of such Additional Advance Request. Notwithstanding the foregoing, in the event that, as of the date of any Additional Advance Request, Lender is a Co-Lender Affiliate and the applicable Installment DateAffiliate of Lender that is the noteholder, co-lender or participant under the Underlying Loan has elected to fund and does fund its applicable portion of the applicable Underlying Additional Advance notwithstanding that the conditions to such Additional Advance in clauses (ii) and/or (iii) if an Event of Default has occurred this Section 2.07(a) are not satisfied, and is continuing, provided that notwithstanding the conditions set forth in clauses (i) through and (iiiiv)-(vii) aboveof this Section 2.07(a) are satisfied, each then Lender mayshall be obligated to fund such Additional Advance.
(b) In the event that (i) the Borrower determines (subject to the terms of the Co-Lender Agreement) not to fund any Underlying Additional Advance request with respect to the Asset due to either a default by Underlying Borrower or a failure to satisfy the applicable conditions precedent to the funding of such additional advance under the Underlying Loan Documents and such refusal to fund continues for ninety (90) days after the requested funding date for such Underlying Additional Advance request or (ii) a monetary or material non-monetary Underlying Loan Event of Default shall be continuing for ninety (90) days (the occurrence of any event described, and continuance of such event for the applicable period set forth, in the foregoing sub-clauses (i) and (ii) shall be referred to as a “Trigger Event”), then, within five (5) Business Days following any such Trigger Event, Borrower shall be required to make a mandatory principal repayment of the Loan to Lender in an amount equal to fifty percent (50%) of Borrower’s Funding Percentage of the remaining unfunded future funding commitments on the Asset minus the amount of any CAE Cure Payment previously made or simultaneously being made by Borrower (such repayment, the “Future Funding Paydown”); provided, however, that no Future Funding Paydown shall result in the termination of the Loan, and, in the event that the Underlying Borrower is able at a later time to correct or cure such default, Underlying Loan Event of Default or failed condition precedent to funding of the Underlying Additional Advance as determined by Lender in its sole good faith discretion, elect or Lender agrees in writing to make waive any such Advance to the Company upon receipt default, Underlying Loan Event of the Funding Notice (to the extent not otherwise waived) as set forth above. If any Lender fails to make an Advance (pursuant to a Funding Notice validly given by the Company hereunder) on an Installment Date (a “Defaulting Lender”) occurring on (a) April 15Default or failed condition precedent, 2017 as required pursuant to this Section 1.4, such Defaulting then Lender shall not be entitled obligated to receive any Installment Shares or Warrants to which it would otherwise be entitled to fund its pro rata share (based on such Installment Date pursuant to Sections 2.1 and 2.2, and seventy-five percent (75%the initial Advance Rate) of the Upfront Shares issued applicable Underlying Additional Advance request with respect to which the applicable Trigger Event existed. Notwithstanding the foregoing, in the event that, as of the date of any Additional Advance Request, Lender is a Co-Lender Affiliate, and the applicable Affiliate of Lender that is the noteholder, co-lender or participant under the Underlying Loan agrees in writing to waive any such default, Underlying Loan Event of Default or failed condition precedent in accordance with the Co-Lender Agreement and the Underlying Loan Documents, then Lender shall be cancelled and forfeited automaticallydeemed to have agreed to waive such default, without any action required on the part Underlying Loan Event of the Defaulting Lender, Default or (b) May 15, 2017 or June 15, 2017 as required pursuant to this Section 1.4, such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2failed condition precedent hereunder.
Appears in 1 contract
Sources: Loan and Security Agreement (TPG RE Finance Trust, Inc.)
Additional Advances. Each Lender will, Tenant shall be entitled to Additional Advances as set forth in this Section 6.5(c). Provided that no Event of Default on each the part of April 15, 2017, May 15, 2017 and June 15, 2017 Tenant has occurred:
(each, together i) If Tenant expends funds (from whatever source) for the development of the Planned Improvements in accordance with the Closing Date, Planned Improvements Requirements (provided that any amounts expended in excess of one hundred and ten percent (110%) of any applicable line item in the Construction Budget shall be deemed require Landlord’s consent (not to be an unreasonably withheld) to be included) (any such expending of funds (from whatever source), a “Installment DateQualifying Spend”) in excess of two hundred fifty million dollars ($250,000,000.00) and provides Landlord with backup documentation reasonably acceptable to Landlord with respect to the same (the “First Advance Milestone”), Tenant may deliver the amount of such Lender’s Pro Rata Share of Two Million Dollars ($2,000,000) (each such advance, together with the advances delivered on the Closing Date, an “Advance”), by check payable to the Company or by wire transfer to a bank account designated by the Company, provided that each Lender’s obligation to fund each Advance is subject to the Lender’s receipt from the Company of a written notice (the “Funding First Advance Notice”), substantially ) to Landlord within sixty (60) days of satisfaction of achieving the First Advance Milestone. Within thirty (30) days of Landlord’s receipt of the First Advance Notice and an endorsement to Landlord’s owner’s title insurance policy increasing the insured amount thereunder by $100,000,000.00 in the form attached hereto as Exhibit EG or in another form reasonably acceptable to Landlord (at Tenant’s sole cost and expense), Landlord shall advance to Tenant an amount equal to $100,000,000 (the “First Additional Advance”). Landlord shall cooperate reasonably and in good faith (at no unreimbursed cost to Landlord) in Tenant’s efforts to cause such title insurance endorsement to be issued. Upon Landlord’s funding of the Company’s election First Additional Advance, Base Rent shall increase by an amount equal to borrow such (a) if and after the Base Rent Conditions have been satisfied, seven million dollars ($7,000,000.00) per annum or (b) unless and until the Base Rent Conditions have been satisfied eight million five hundred thousand dollars ($8,500,000.00) per annum, and Landlord and Tenant shall enter into an amendment to this Lease setting forth the increased Base Rent.
(ii) If, from and after achieving the First Advance at least five (5) Business Days prior to the date of such Advance (it being understood that neither Lender shall have an obligation to make the Advance to which such notice relates if the Company has failed to timely provide such Funding Notice to such LenderMilestone, unless waived by such Lender. In addition, no Lender shall be required make an Advance to the Company (i) on an Installment Date occurring after April 30, 2017 if the Company has not completed its first Public Offering on or prior to T▇▇▇▇▇ ▇▇makes additional Qualifying Spend in excess of two hundred million dollars ($200,000,000.00) and provides Landlord with backup documentation reasonably acceptable to Landlord with respect to the same (the “Second Advance Milestone”), ▇▇▇▇Tenant may deliver a written notice (the “Second Advance Notice”) to Landlord within sixty (60) days of satisfaction of achieving the Second Advance Milestone. Within thirty (30) days of Landlord’s receipt of the Third Advance Notice and an endorsement to Landlord’s owner’s title insurance policy increasing the insured amount thereunder by $100,000,000.00 in the form attached hereto as Exhibit G or in another form reasonably acceptable to Landlord (at Tenant’s sole cost and expense), Landlord shall advance to Tenant an amount equal to $100,000,000 (▇▇the “Second Additional Advance”). Landlord shall cooperate reasonably and in good faith (at no unreimbursed cost to Landlord) in Tenant’s efforts to cause such title insurance endorsement to be issued. Upon Landlord’s funding of the Second Additional Advance, Base Rent shall increase by an amount equal to (a) if either ▇▇▇▇ ▇▇▇▇and after the Base Rent Conditions have been satisfied, seven million dollars ($7,000,000.00) per annum or (b) unless and until the Base Rent Conditions have been satisfied eight million five hundred thousand dollars ($8,500,000.00) per annum, and Landlord and Tenant shall enter into an amendment to this Lease setting forth the increased Base Rent.
(iii) If, from and after achieving the Second Advance Milestone, T▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ no longer serves as an executive officer the Company as makes additional Qualifying Spend in excess of the applicable Installment Date, or two hundred million dollars (iii$200,000,000.00) if an Event of Default has occurred and is continuing, provided that notwithstanding clauses (i) through (iii) above, each Lender may, in its sole discretion, elect provides Landlord with backup documentation reasonably acceptable to make such Advance Landlord with respect to the Company upon same (the “Third Advance Milestone”), Tenant may deliver a written notice (the “Third Advance Notice”) to Landlord within sixty (60) days of satisfaction of achieving the Third Advance Milestone. Within thirty (30) days of Landlord’s receipt of the Funding Third Advance Notice and an endorsement to Landlord’s owner’s title insurance policy increasing the insured amount thereunder by $100,000,000.00 in the form attached hereto as Exhibit G or in another form reasonably acceptable to Landlord (at Tenant’s sole cost and expense), Landlord shall advance to Tenant an amount equal to $100,000,000 (the extent not otherwise waived“Third Additional Advance”). Landlord shall cooperate reasonably and in good faith (at no unreimbursed cost to Landlord) as set forth abovein Tenant’s efforts to cause such title insurance endorsement to be issued. If any Lender fails Upon Landlord’s funding of the Third Additional Advance, Base Rent shall increase by an amount equal to make an Advance (pursuant to a Funding Notice validly given by the Company hereunder) on an Installment Date (a “Defaulting Lender”) occurring on (a) April 15if and after the Base Rent Conditions have been satisfied, 2017 as required pursuant to this Section 1.4, such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2.2, and seventy-five percent seven million dollars (75%$7,000,000.00) of the Upfront Shares issued to Lender shall be cancelled and forfeited automatically, without any action required on the part of the Defaulting Lender, per annum or (b) May 15unless and until the Base Rent Conditions have been satisfied eight million five hundred thousand dollars ($8,500,000.00) per annum, 2017 or June 15, 2017 as required pursuant and Landlord and Tenant shall enter into an amendment to this Section 1.4, such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2Lease setting forth the increased Base Rent.
Appears in 1 contract
Sources: Ground Lease (Bally's Chicago, Inc.)
Additional Advances. Each (a) Notwithstanding that all Commitments (other than to make Loans deemed made pursuant to Section 2.12(c) of the Credit Agreement in respect of Letter of Credit Disbursements, the Percentage Share of each Lender willin respect thereof being reflected in Schedule I hereto) have previously terminated as of the First Amendment Effective Time pursuant to the First Amendment, (i) the Lenders have agreed to provide, severally and not jointly or jointly and severally, additional advances of Loans pursuant to the Credit Agreement on the date hereof in the amount of Fourteen Million Dollars ($14,000,000.00) (the “Third Amendment Effective Time Draw”); (ii) the Lenders have agreed to provide, if and only if the Required DDTL Approving Lenders elect in the sole and absolute discretion of such Required DDTL Approving Lenders that all Lenders shall so provide, an additional advance in the amount of Five Million Dollars ($5,000,000.00) following the satisfaction of the Third Amendment First Delayed Draw Pre-Conditions (the “Third Amendment First Delayed Draw”); and (iii) the Lenders may in their sole and absolute discretion provide, but in each case if and only if all Lenders unanimously agree to so provide, a further additional advance in the amount of April 15up to Five Million Dollars ($5,000,000.00) (the “Third Amendment Second Delayed Draw” and, 2017, May 15, 2017 and June 15, 2017 (each, together collectively with the Closing DateThird Amendment First Delayed Draw and the Third Amendment Effective Time Draw, the “Third Amendment Advances”). In the sole and absolute discretion of the Required Lenders, a portion of the Third Amendment Advances may be delivered to counsel to the Lenders for the purpose of paying legal fees and expenses in accordance with the Lender Fee Letter and such Third Amendment Advances shall nevertheless be considered Third Amendment Advances even if such funds are not advanced to the Borrowers but are applied as provided therein. The Loan Parties agree that the Lenders have not committed to provide the Third Amendment First Delayed Draw or the Third Amendment Second Delayed Draw, and the Lenders agree that, if the Required DDTL Approving Lenders elect to provide the Third Amendment First Delayed Draw in the sole and absolute discretion of such Required DDTL Approving Lenders, all Lenders shall make their Percentage Share of the Third Amendment First Delayed Draw as reflected on Schedule I hereto on the date selected by the Required DDTL Approving Lenders and that any Lender’s failure to advance their Percentage Share of the Third Amendment First Delayed Draw on such date (if the Required DDTL Approving Lenders elect to make the Third Amendment First Delayed Draw) shall be deemed to be an “Installment Date”)a Lender Default that renders such non-advancing Lender a Defaulting Lender. The Borrowers agree that, if the Lenders agree to provide the Third Amendment Second Delayed Draw, the Borrowers shall cause a Responsible Officer (as defined in the Term Loan Documents and the Convertible Notes Documents, respectively) of Invacare to deliver the amount of such Lender’s Pro Rata Share of Two Million Dollars ($2,000,000) (each such advance, together with the advances delivered on the Closing Date, an “Advance”), by check payable a certificate to the Company or by wire transfer to a bank account designated by Term Loan Agent and the Company, provided that each Lender’s obligation to fund each Advance is subject to the Lender’s receipt from the Company of a written notice (the “Funding Notice”), substantially in the form attached hereto as Exhibit E, of the Company’s election to borrow such Advance Convertible Notes Agent at least five (5) Business Days prior to the date incurrence of the Third Amendment Second Delayed Draw, together with information and in the form required by the Term Loan Documents and the Convertible Notes Documents so that the Third Amendment Second Delayed Draw satisfies all respective conditions for Required Additional Debt Terms thereunder, and to certify to the Administrative Agent and the Lenders that the Responsible Officer has done so. The Third Amendment Advances (if and when advanced), together with the Second Amendment Advance (as defined in the Second Amendment), the Additional Advance (as defined in the First Amendment), the Remaining Advance (as defined in the First Amendment), and the Pre-Assignment Principal Balance (as defined in the First Amendment), are and shall be deemed to have been made in the aggregate as a Loan to the Borrowers under the Credit Agreement and to constitute the principal balance of the Loans, in the amount of Fifty-Two Million Three Hundred Twenty-Five Thousand Eight Hundred Dollars ($52,325,800.00) (the “Pre-LC Draw Maximum Principal Obligations”), and the Principal Share of each Lender in respect of the Pre-LC Draw Maximum Principal Obligations is set forth on Schedule I hereto. Any payments or proceeds applied to the Pre-LC Draw Maximum Principal Obligations and the accrued interest thereon shall be applied (1) first to the portion thereof that do not constitute either (A) the Junior Portion of the Third Amendment First Delayed Draw or the interest thereon; or (B) the Junior Portion of the Third Amendment Second Delayed Draw or the interest thereon, (2) second to the portion thereof that constitutes the Junior Portion of the Third Amendment First Delayed Draw or the interest thereon, and (3) third to the portion thereof that constitutes the Junior Portion of the Third Amendment Second Delayed Draw. The Borrowers confirm that all Commitments remain terminated, and agree that they have requested the Third Amendment Advances to be made pursuant to the same terms as the other advances constituting the Loans;
(b) Each Lender agrees severally and not jointly or jointly and severally that upon the effectiveness of this Amendment on the Third Amendment Effective Time each such Lender shall make the Third Amendment Effective Date Draws on the Third Amendment Effective Time in the aggregate principal amount equal to the amount of its Percentage Share indicated on Schedule I hereto of the amount of such Advance (it being understood that neither Lender shall have an obligation to make Third Amendment Effective Date Draws, and, in each case, when made, the Advance to which such notice relates if the Company has failed to timely provide such Funding Notice to such Lender, unless waived by such Lender. In addition, no Lender Third Amendment Effective Date Draws shall be required make an Advance added to the Company (i) on an Installment Date occurring after April 30, 2017 if the Company has not completed its first Public Offering on or prior to ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) if either ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ no longer serves as an executive officer the Company as of the applicable Installment Date, or (iii) if an Event of Default has occurred and is continuing, provided that notwithstanding clauses (i) through (iii) above, each Lender may, in its sole discretion, elect to make such Advance to the Company upon receipt of the Funding Notice (to the extent not otherwise waived) as set forth above. If any Lender fails to make an Advance (pursuant to constitute a Funding Notice validly given by the Company hereunder) on an Installment Date (a “Defaulting Lender”) occurring on (a) April 15, 2017 as required pursuant to this Section 1.4, such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2.2, and seventy-five percent (75%) of the Upfront Shares issued to Lender shall be cancelled and forfeited automatically, without any action required on the part of the Defaulting Lenderoutstanding Revolving Loans under the Credit Agreement. In each case, or if and when made, the Third Amendment First Delayed Draws and Third Amendment Second Delayed Draws shall be added to and constitute a part of the outstanding Revolving Loans under the Credit Agreement.
(bc) May 15Upon the making of the Third Amendment Advances hereunder, 2017 or June 15, 2017 as required pursuant the Administrative Agent shall promptly update the Register to this Section 1.4, such Defaulting Lender shall not be entitled give effect to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2the Third Amendment Advances.
Appears in 1 contract
Sources: Loan and Security Agreement (INVACARE HOLDINGS Corp)
Additional Advances. Each (a) If Borrower shall receive a request for a future advance on the Asset (an “Underlying Additional Advance”) from the Underlying Borrower, Servicer, Co-Lender willAgent or other Person pursuant to the Underlying Loan Documents for the Asset, Borrower may submit a written request for an Additional Advance (an “Additional Advance Request”) to Lender (but not more often than once per month unless approved by the Agent on each of April 15, 2017, May 15, 2017 and June 15, 2017 the Underlying Loan (each, together other than in connection with the Closing Date, shall be deemed to be an “Installment Date”), deliver the amount funding of such Lender’s Pro Rata Share of Two Million Dollars ($2,000,000) (each such advance, together with the advances delivered interest on the Closing DateUnderlying Loan)) and, an “Advance”), by check payable to the Company or by wire transfer to a bank account designated by the Company, provided that each Lender’s obligation to fund each Advance is subject to the Lender’s receipt from the Company of a written notice (the “Funding Notice”), substantially in the form attached hereto as Exhibit E, of the Company’s election to borrow such Advance at least within five (5) Business Days after receipt of such Additional Advance Request, Lender shall make an Additional Advance to Borrower in an amount equal to the product of (i) the amount of the future advance requested to be funded by Borrower with respect to the Asset under the Underlying Loan Documents (the “Underlying Advance Request Amount”) multiplied by (ii) the Advance Rate, provided that each of the following conditions have been satisfied (or waived in writing by Lender in its sole discretion or pursuant to Section 2.07(b):
(i) no monetary or material non-monetary Default or Event of Default shall be continuing both as of the date of the Additional Advance Request and as of the date of funding of such Additional Advance;
(ii) no monetary or material non-monetary Underlying Loan Event of Default shall be continuing both as of the date of the Additional Advance Request and as of the date of funding of such Additional Advance;
(iii) all of the representations and warranties of Borrower and Guarantor contained in this Loan Agreement and the other Loan Documents shall be true and correct in all material respects both as of the date of the Additional Advance Request and as of the date of funding of such Additional Advance, expect for any exceptions disclosed to Lender in writing and approved by Lender prior to the date of such Advance Closing Date;
(it being understood that neither iv) Lender shall have an obligation received a copy of the Draw Request (as defined in the Underlying Loan Agreement) together with copies of all supporting documents and information received by Borrower in connection with such Draw Request and shall have determined in its reasonable discretion that all conditions precedent to make the Advance to which funding of such notice relates if future advance under the Company has failed to timely provide such Funding Notice to such LenderUnderlying Loan Documents including, unless waived by such Lender. In additionwithout limitation, no Lender each of the conditions set forth in Sections 2.9 and 2.10 of the Underlying Loan Agreement have been satisfied in all material respects;
(v) Borrower shall have funded, or shall be required make an Advance contemporaneously funding, to the Company Underlying Borrower, the Co-Lender Agent or other applicable party an amount equal to the difference between (i) on an Installment Date occurring the Underlying Advance Request Amount and (ii) the amount of the Additional Advance to be funded by Lender pursuant to the Additional Advance Request;
(vi) after April 30giving effect to such Additional Advance the aggregate amount of Additional Advances made by Lender shall not exceed the Additional Advance Cap; and
(vii) Borrower shall have paid all of Lender’s reasonable out of pocket costs and expenses (including, 2017 if without limitation, reasonable attorneys’ fees and disbursements and including the Company has not completed its first Public Offering on or prior to ▇▇▇▇▇ ▇▇cost of any construction consultant retained by Lender; provided, ▇▇▇▇however, (▇▇that for so long as Lender is a Co-Lender Affiliate, Lender shall use the same construction consultant as the Underlying Lender) if either ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ no longer serves as an executive officer incurred in connection with the Company review of and funding of such Additional Advance Request. Notwithstanding the foregoing, in the event that, as of the date of any Additional Advance Request, Lender is a Co-Lender Affiliate and the applicable Installment DateAffiliate of Lender that is the noteholder, co-lender or participant under the Underlying Loan has elected to fund and does fund its applicable portion of the applicable Underlying Additional Advance notwithstanding that the conditions to such Additional Advance in clauses (ii) and/or (iii) if an Event of Default has occurred this Section 2.07(a) are not satisfied, and is continuing, provided that notwithstanding the conditions set forth in clauses (i) through and (iiiiv)-(vii) aboveof this Section 2.07(a) are satisfied, each then Lender mayshall be obligated to fund such Additional Advance.
(b) In the event that (i) the Borrower determines (subject to the terms of the Co-Lender Agreement) not to fund any Underlying Additional Advance request with respect to the Asset due to either a default by Underlying Borrower or a failure to satisfy the applicable conditions precedent to the funding of such additional advance under the Underlying Loan Documents and such refusal to fund continues for ninety (90) days after the requested funding date for such Underlying Additional Advance request or (ii) a monetary or material non-monetary Underlying Loan Event of Default shall be continuing for ninety (90) days (the occurrence of any event described, and continuance of such event for the applicable period set forth, in the foregoing sub-clauses (i) and (ii) shall be referred to as a “Trigger Event”), then, within five (5) Business Days following any such Trigger Event, Borrower shall be required to make a mandatory principal repayment of the Loan to Lender in an amount equal to fifty percent (50%) of Borrower’s Funding Percentage of the remaining unfunded future funding commitments on the Asset minus the amount of any CAE Cure Payment previously made or simultaneously being made by Borrower (such repayment, the “Future Funding Paydown”); provided, however, that no Future Funding Paydown shall result in the termination of the Loan, and, in the event that the Underlying Borrower is able at a later time to correct or cure such default, Underlying Loan Event of Default or failed condition precedent to funding of the Underlying Additional Advance as determined by Lender in its sole good faith discretion, elect or Lender agrees in writing to make waive any such Advance to the Company upon receipt default, Underlying Loan Event of the Funding Notice (to the extent not otherwise waived) as set forth above. If any Lender fails to make an Advance (pursuant to a Funding Notice validly given by the Company hereunder) on an Installment Date (a “Defaulting Lender”) occurring on (a) April 15Default or failed condition precedent, 2017 as required pursuant to this Section 1.4, such Defaulting then Lender shall not be entitled obligated to receive any Installment Shares or Warrants to which it would otherwise be entitled to fund its pro rata share (based on such Installment Date pursuant to Sections 2.1 and 2.2, and seventy-five percent (75%the initial Advance Rate) of the Upfront Shares issued applicable Underlying Additional Advance request with respect to which the applicable Trigger Event existed. Notwithstanding the foregoing, in the event that, as of the date of any Additional Advance Request, Lender is a Co-Lender Affiliate, and the applicable Affiliate of Lender that is the noteholder, co-lender or participant under the Underlying Loan agrees in writing to waive any such default, Underlying Loan Event of Default or failed condition precedent in accordance with the Co-Lender Agreement and the Underlying Loan Documents, then Lender shall be cancelled and forfeited automaticallydeemed to have agreed to waive such default, without any action required on the part Underlying Loan Event of the Defaulting Lender, Default or (b) May 15, 2017 or June 15, 2017 as required pursuant to this Section 1.4, such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2failed condition precedent hereunder.
Appears in 1 contract
Sources: Loan and Security Agreement (TPG RE Finance Trust, Inc.)
Additional Advances. Each (a) If Borrower shall receive a request for a future advance on the Asset (an “Underlying Additional Advance”) from the Underlying Borrower, Servicer, Co-Lender willAgent or other Person pursuant to the Underlying Loan Documents for the Asset, Borrower may submit a written request for an Additional Advance (an “Additional Advance Request”) to Lender (but not more often than once per month unless approved by the Agent on each of April 15, 2017, May 15, 2017 and June 15, 2017 the Underlying Loan (each, together other than in connection with the Closing Datefunding of interest on the Underlying Loan) and not in an amount less than $90,000) and, within seven (7) Business Days after receipt of such Additional Advance Request, Lender shall be deemed make an Additional Advance to be Borrower in an “Installment Date”), deliver amount equal to the product of (i) the amount of such Lender’s Pro Rata Share of Two Million Dollars ($2,000,000) (each such advance, together the future advance requested to be funded by Borrower with the advances delivered on the Closing Date, an “Advance”), by check payable respect to the Company or Asset under the Underlying Loan Documents (the “Underlying Advance Request Amount”) multiplied by wire transfer to a bank account designated by (ii) the CompanyAdvance Rate, provided that each of the following conditions have been satisfied (or waived in writing by Lender in its sole discretion or pursuant to Section 2.07(b):
(i) no monetary or material non-monetary Default or Event of Default shall be continuing both as of the date of the Additional Advance Request and as of the date of funding of such Additional Advance;
(ii) no monetary or material non-monetary Underlying Loan Event of Default shall be continuing both as of the date of the Additional Advance Request and as of the date of funding of such Additional Advance;
(iii) all of the representations and warranties of Borrower and Guarantor contained in this Loan Agreement and the other Loan Documents shall be true and correct in all material respects both as of the date of the Additional Advance Request and as of the date of funding of such Additional Advance, expect for any exceptions disclosed to Lender in writing and approved by Lender prior to the Closing Date;
(iv) Lender shall have received a copy of the Draw Request (as defined in the Underlying Loan Agreement) together with copies of all supporting documents and information received by Borrower in connection with such Draw Request and shall have determined in its reasonable discretion that all conditions precedent to the funding of such future advance under the Underlying Loan Documents including, without limitation, each of the conditions set forth in Section 2.9 of the Underlying Loan Agreement have been satisfied in all material respects;
(v) Borrower shall have funded, or shall be contemporaneously funding, to the Underlying Borrower, the Co-Lender Agent or other applicable party an amount equal to the difference between (i) the Underlying Advance Request Amount and (ii) the amount of the Additional Advance to be funded by Lender pursuant to the Additional Advance Request;
(vi) after giving effect to such Additional Advance the aggregate amount of Additional Advances made by Lender shall not exceed the Additional Advance Cap; and
(vii) Borrower shall have paid all of Lender’s obligation reasonable out of pocket costs and expenses (including, without limitation, reasonable attorneys’ fees and disbursements and including the cost of any construction consultant retained by Lender; provided, however, that for so long as Lender is a Co-Lender Affiliate, Lender shall use the same construction consultant as the Underlying Lender) incurred in connection with the review of and funding of such Additional Advance Request. Notwithstanding the foregoing, in the event that, as of the date of any Additional Advance Request, Lender is a Co-Lender Affiliate and the applicable Affiliate of Lender that is the noteholder, co-lender or participant under the Underlying Loan has elected to fund each and does fund its applicable portion of the applicable Underlying Additional Advance is notwithstanding that the conditions to such Additional Advance in clauses (ii) and/or (iii) of this Section 2.07(a) are not satisfied, and provided that the conditions set forth in clauses (i) and (iv)-(vii) of this Section 2.07(a) are satisfied, then Lender shall be obligated to fund such Additional Advance.
(b) In the event that (i) the Borrower determines (subject to the Lender’s receipt from terms of the Company Participation Agreement and Co-Lender Agreement) not to fund any Underlying Additional Advance request with respect to the Asset due to either a default by Underlying Borrower or a failure to satisfy the applicable conditions precedent to the funding of such additional advance under the Underlying Loan Documents and such refusal to fund continues for ninety (90) days after the requested funding date for such Underlying Additional Advance request or (ii) a written notice monetary or material non-monetary Underlying Loan Event of Default shall be continuing for ninety (90) days (the occurrence of any event described, and continuance of such event for the applicable period set forth, in the foregoing sub-clauses (i) and (ii) shall be referred to as a “Funding NoticeTrigger Event”), substantially in the form attached hereto as Exhibit Ethen, of the Company’s election to borrow such Advance at least within five (5) Business Days prior following any such Trigger Event, Borrower shall be required to make a mandatory principal repayment of the Loan to Lender in an amount equal to fifty percent (50%) of Borrower’s Funding Percentage of the remaining unfunded future funding commitments on the Asset minus the amount of any CAE Cure Payment previously made or simultaneously being made by Borrower (such repayment, the “Future Funding Paydown”); provided, however, that no Future Funding Paydown shall result in the termination of the Loan, and, in the event that the Underlying Borrower is able at a later time to correct or cure such default, Underlying Loan Event of Default or failed condition precedent to funding of the Underlying Additional Advance as determined by Lender in its sole good faith discretion, or Lender agrees in writing to waive any such default, Underlying Loan Event of Default or failed condition precedent, then Lender shall be obligated to fund its pro rata share (based on the initial Advance Rate) of the applicable Underlying Additional Advance request with respect to which the applicable Trigger Event existed. Notwithstanding the foregoing, in the event that, as of the date of any Additional Advance Request, Lender is a Co-Lender Affiliate, and the applicable Affiliate of Lender that is the noteholder, co-lender or participant under the Underlying Loan agrees in writing to waive any such Advance (it being understood that neither default, Underlying Loan Event of Default or failed condition precedent in accordance with the Co-Lender shall have an obligation to make Agreement, Participation Agreement and the Advance to which such notice relates if the Company has failed to timely provide such Funding Notice to such LenderUnderlying Loan Documents, unless waived by such Lender. In addition, no then Lender shall be required make an Advance deemed to the Company (i) on an Installment Date occurring after April 30have agreed to waive such default, 2017 if the Company has not completed its first Public Offering on or prior to ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) if either ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ no longer serves as an executive officer the Company as of the applicable Installment Date, or (iii) if an Underlying Loan Event of Default has occurred and is continuing, provided that notwithstanding clauses (i) through (iii) above, each Lender may, in its sole discretion, elect to make such Advance to the Company upon receipt of the Funding Notice (to the extent not otherwise waived) as set forth above. If any Lender fails to make an Advance (pursuant to a Funding Notice validly given by the Company or failed condition precedent hereunder) on an Installment Date (a “Defaulting Lender”) occurring on (a) April 15, 2017 as required pursuant to this Section 1.4, such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2.2, and seventy-five percent (75%) of the Upfront Shares issued to Lender shall be cancelled and forfeited automatically, without any action required on the part of the Defaulting Lender, or (b) May 15, 2017 or June 15, 2017 as required pursuant to this Section 1.4, such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2.
Appears in 1 contract
Sources: Loan and Security Agreement (TPG RE Finance Trust, Inc.)
Additional Advances. Each Lender will(a) Notwithstanding that all Commitments (other than to make Loans deemed made pursuant to Section 2.12(c) of the Credit Agreement in respect of Letter of Credit Disbursements) have previously terminated as of the First Amendment Effective Time pursuant to the First Amendment, the Lenders have agreed to provide, severally and not jointly or jointly and severally, an additional advance of Loans pursuant to the Credit Agreement on each the date hereof in the amount of April 15, 2017, May 15, 2017 and June 15, 2017 Twelve Million Dollars (each$12,000,00.00) (the “Second Amendment Advance”). The Second Amendment Advance, together with the Closing DateAdditional Advance (as defined in the First Amendment), shall be the Remaining Advance (as defined in the First Amendment), and the Pre-Assignment Principal Balance (as defined in the First Amendment), are deemed to be an have been made in the aggregate as a Loan to the Borrowers under the Credit Agreement and to constitute the principal balance of the Loans as of the date hereof, in the amount of Twenty-Eight Million Three Hundred Twenty-Five Thousand Eight Hundred Dollars ($28,325,800.00) (the “Installment DateExisting Principal Obligations”). The Borrowers confirm that all Commitments remain terminated, deliver and agree that they have requested the Second Amendment Advance to be made pursuant to the same terms as the other advances constituting the Loans;
(b) Each Lender agrees severally and not jointly or jointly and severally that upon the effectiveness of this Amendment on the Second Amendment Effective Time each such Lender shall make the Second Amendment Advance on the Second Amendment Effective Time in the aggregate principal amount equal to the amount of its Percentage Share indicated on Schedule I hereto of the amount of such Lender’s Pro Rata Share of Two Million Dollars ($2,000,000) (Second Amendment Advance, and, in each such advancecase, together with when made, the advances delivered on the Closing Date, an “Advance”), by check payable to the Company or by wire transfer to a bank account designated by the Company, provided that each Lender’s obligation to fund each Second Amendment Advance is subject to the Lender’s receipt from the Company of a written notice (the “Funding Notice”), substantially in the form attached hereto as Exhibit E, of the Company’s election to borrow such Advance at least five (5) Business Days prior to the date of such Advance (it being understood that neither Lender shall have an obligation to make the Advance to which such notice relates if the Company has failed to timely provide such Funding Notice to such Lender, unless waived by such Lender. In addition, no Lender shall be required make an Advance added to the Company (i) on an Installment Date occurring after April 30, 2017 if the Company has not completed its first Public Offering on or prior to ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) if either ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ no longer serves as an executive officer the Company as of the applicable Installment Date, or (iii) if an Event of Default has occurred and is continuing, provided that notwithstanding clauses (i) through (iii) above, each Lender may, in its sole discretion, elect to make such Advance to the Company upon receipt of the Funding Notice (to the extent not otherwise waived) as set forth above. If any Lender fails to make an Advance (pursuant to constitute a Funding Notice validly given by the Company hereunder) on an Installment Date (a “Defaulting Lender”) occurring on (a) April 15, 2017 as required pursuant to this Section 1.4, such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2.2, and seventy-five percent (75%) of the Upfront Shares issued to Lender shall be cancelled and forfeited automatically, without any action required on the part of the Defaulting Lenderoutstanding Revolving Loans under the Credit Agreement.
(c) Upon the making of the Second Amendment Advance hereunder, or (b) May 15, 2017 or June 15, 2017 as required pursuant the Administrative Agent shall promptly update the Register to this Section 1.4, such Defaulting Lender shall not be entitled give effect to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2the Second Amendment Advance.
Appears in 1 contract
Sources: Loan and Security Agreement (INVACARE HOLDINGS Corp)
Additional Advances. Each Lender willSubject to receipt of the Required Approval from the Members, the Manager shall be permitted, if the Manager shall determine in its reasonable opinion that it is necessary or advisable that the Company have additional funds, to request of the TRB Members on the one hand (acting jointly in proportion to their respective Percentage Interests in all cases for purposes of this Section 3.5 and Section 3.6(a) below) and RBH Partners, on the other hand, that they contribute to the Company such additional funds pursuant to a written notice to the TRB Members and RBH Partners (the “Additional Advance Notice”) specifying the aggregate amount of the requested Additional Advance, each Member’s pro-rata amount of April 15such Additional Advance based on its relative Percentage Interest and the date such advance must be contributed, 2017which, May 15, 2017 and June 15, 2017 (each, together with the Closing Dateexcept as otherwise provided herein, shall be deemed to be not less than ten (10) days after the Additional Advance Notice is given. By sending an “Installment Date”), deliver the amount of such Lender’s Pro Rata Share of Two Million Dollars ($2,000,000) (each such advance, together with the advances delivered on the Closing Date, an “Advance”), by check payable Additional Advance Notice to the Company or by wire transfer to a bank account designated by the Companyother Members, provided that each Lender’s obligation to fund each any Member may, without having obtained Required Approval, require an Additional Advance is subject to the Lender’s receipt from the Company of a written notice (the “Funding Notice”), substantially in the form attached hereto as Exhibit E, of the Company’s election to borrow such Advance at least five (5) Business Days prior to the date of such Advance (it being understood that neither Lender shall have an obligation to make the Advance to which such notice relates if the Company has failed to timely provide such Funding Notice to such Lender, unless waived by such Lender. In addition, no Lender shall be required make an Advance to the Company (i) on an Installment Date occurring after April 30, 2017 if to cure or prevent defaults under the Company has not completed its first Public Offering on or prior to ▇▇▇BRT Senior Mortgage and the current mortgages secured by ▇▇ ▇▇, ▇▇▇▇, (▇▇) if either ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇ ▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ no longer serves as (including, without limitation, to cover the principal balance due thereunder if such mortgage(s) shall have matured or shall be maturing within next 30 days or if same shall have been accelerated upon a default by the Company), (ii) in the event of an executive officer emergency repair to the Company as of Property (to prevent imminent harm to humans or to property belonging to third parties or required to avoid fines or criminal sanctions), (iii) to the applicable Installment Dateextent such Additional Advance is to be made pursuant to Section 3.7(a), or (iiiiv) if an Event of Default has occurred and is continuing, provided that notwithstanding clauses (i) through (iii) above, each Lender may, in its sole discretion, elect to make such Advance obtain the funds necessary to exercise the Company upon receipt right to extend the five-year term of the Funding Notice (to the extent not otherwise waived) BRT Senior Mortgage for an additional two years as set forth abovein the loan documents executed in connection BRT Senior Mortgage. If any Lender fails to make an Advance (Except for Additional Advances required pursuant to a Funding an Additional Advance Notice validly given sent pursuant to the preceding sentence, all Additional Advances shall necessitate that Required Approval be obtained. Such additional funds actually received by the Company hereunder) on an Installment Date (a “Defaulting Lender”) occurring on (a) April 15, 2017 as required pursuant to this Section 1.4, such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2.2, and seventy-five percent (75%) of the Upfront Shares issued to Lender shall be cancelled referred to herein as the “Additional Advances” and forfeited automatically, without any action required on the part of the Defaulting Lender, or (b) May 15, 2017 or June 15, 2017 individually as required pursuant to this Section 1.4, such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2an “Additional Advance.”
Appears in 1 contract
Sources: Limited Liability Company Operating Agreement (BRT Realty Trust)
Additional Advances. Each Lender willThe Lenders shall make one or more Additional Advances to the Borrowers, on each of April 15, 2017, May 15, 2017 subject to and June 15, 2017 (each, together in accordance with the Closing Datefollowing terms and conditions:
(a) The Borrowers shall have satisfied the terms and conditions set forth in Part B, and (i) with respect to the Fremont Additional Advance, Part C and (ii) with respect to the ▇▇ ▇▇▇▇▇▇ Lease Acquisition, Part D, of SCHEDULE 2.1 attached hereto.
(b) Each Additional Advance shall be deemed in an amount not less than (i) with respect to be an “Installment Date”)the Fremont Additional Advances, deliver the amount of such Lender’s Pro Rata Share of Two One Million Dollars ($2,000,0001,000,000) and (each such advanceii) with respect to Additional Advances to be used for working capital purposes, together with Five Hundred Thousand Dollars ($500,000). The Lenders shall only make one (1) Additional Advance for the advances delivered on the Closing Date▇▇ ▇▇▇▇▇▇ Lease Acquisition, an “Advance”)which Additional Advance shall be made as a Term Loan and shall not exceed $800,000, by check payable to the Company or by wire transfer to a bank account designated by the Company, provided that each Lender’s obligation to fund each Advance is and shall be subject to the Lender’s receipt from the Company of a written notice (the “Funding Notice”), substantially in the form attached hereto as Exhibit E, satisfaction of the Company’s election terms and conditions set forth in part D of SCHEDULE 2.1.
(c) The Borrowers shall have submitted its Notice of Additional Advance (i) with respect to borrow any Fremont Additional Advance and the ▇▇ ▇▇▇▇▇▇ Lease Acquisition Additional Advance, at least fourteen (14) Business Days prior to the date such Advance is requested to be disbursed and (ii) with respect to any Additional Advances of Revolving Loans, at least five (5) Business Days prior to the date such Advance is requested to be disbursed.
(d) The calculation of the amount of any Additional Advance, shall be made as of the date the Borrowers submit its Notice of Additional Advance for such Advance. The Borrowers acknowledge and agree that once the amount of any Advance is calculated as of such date, such amount shall be fixed and such request for an Additional Advance shall be deemed irrevocable.
(it being understood that neither Lender e) The Administrative Agent (on behalf of the Lenders) shall have an obligation determined to make its satisfaction (provided, however, that such determination shall be consistent with, and similar in substance to, the determination of such funding criteria calculations as of the date of this Agreement) based on information and documentation provided by the Borrowers to the Administrative Agent (on behalf of the Lenders) at least five (5) Business Days prior to the proposed date of the funding of the requested Additional Advance to which such notice relates if the Company has failed to timely provide such Funding Notice that after giving effect to such LenderAdditional Advance, unless waived by such Lender. In addition, no Lender shall be required make the Projects will generate an Advance annualized Net Operating Income sufficient to the Company produce (i) an aggregate Cash on Cash Return of at least 11%, (ii) an Installment Date occurring aggregate Debt Service Coverage of at least 1.30 to 1.00 and (iii) a Portfolio LTV equal to, or less than, 85%, in each case, calculated based on the assumption that (x) with respect to any Advance made prior to the occurrence of any Partial Release pursuant to SECTION 2.04 hereof, the full amount of the Loans have been disbursed and are outstanding, less any undisbursed amounts allocated to phase II of the Fremont Additional Advance (as more particularly described on the Budget) and/or Schedule 5 annexed hereto, and (y) with respect to any Advance made after April 30the occurrence of a Partial Release pursuant to SECTION 2.04 hereof, 2017 if the Company Required Release Paydown Amount has not completed its been paid and is outstanding; provided, however, that for the purposes of determining satisfaction of this condition, but not for the purposes of determining satisfaction of the condition set forth in Paragraph C.4 of Schedule 2.1, the parties shall use the annualized Net Operating Income determined as of the end of the most recently ended fiscal quarter.
(f) The REIT Net Worth Test shall have been satisfied.
(g) During the term of the Loan (the "TERM"), the Borrowers shall pay to the Administrative Agent (on behalf of the Lenders) a unused line fee (the "UNUSED LINE FEE") in an amount equal to the product of (i) twenty-five hundredths of one percent (0.25%) per annum and (ii) the aggregate positive difference, if any, between (x) the Maximum Loan Amount and (y) the aggregate amount of all Advances made to date for each day during the applicable calendar quarter, divided by the number of days in such calendar quarter. The Unused Line Fee shall be payable, in arrears, on the first Public Offering on or prior day of each calendar quarter during the Term.
(h) Additional Advances of the Term Loans shall not be made more frequently than once per calendar month during the Term. Additional Advances of the Revolving Loan shall not be made more frequently than twice per calendar month during the Term.
(i) Additional Advances of Term Loans may only be made to ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) if either ▇▇fund the ▇▇ ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ no longer serves as an executive officer Lease Acquisition and the Company as payment of the applicable Installment Date, or (iii) if an Event of Default has occurred construction and is continuing, provided that notwithstanding clauses (i) through (iii) above, each Lender may, in its sole discretion, elect to make such Advance Capital Improvement Costs with respect to the Company upon receipt of Fremont Project as more particularly described on SCHEDULE 5 attached hereto (the Funding Notice (to the extent not otherwise waived) as set forth above. If any Lender fails to make an Advance (pursuant to a Funding Notice validly given by the Company hereunder) on an Installment Date (a “Defaulting Lender”) occurring on (a) April 15, 2017 as required pursuant to this Section 1.4, such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2.2, and seventy-five percent (75%) of the Upfront Shares issued to Lender shall be cancelled and forfeited automatically, without any action required on the part of the Defaulting Lender, or (b) May 15, 2017 or June 15, 2017 as required pursuant to this Section 1.4, such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2"FREMONT CONSTRUCTION WORK").
Appears in 1 contract
Additional Advances. Each Lender will, on each of April 15, 2017, May 15, 2017 and June 15, 2017 (each, together with the Closing Date, shall be deemed to be an “Installment Date”), deliver the amount of such Lender’s Pro Rata Share of Two Million Dollars ($2,000,000) (each such advance, together with the advances delivered on the Closing Date, an “Advance”), by check payable to the Company or by wire transfer to a bank account designated by the Company, provided Provided that each Lender’s obligation to fund each Advance is subject to the Lender’s receipt from the Company of a written notice (the “Funding Notice”), substantially in the form attached hereto as Exhibit E, of the Company’s election to borrow such Advance at least five (5) Business Days prior to the date of such Advance (it being understood that neither Lender shall have an obligation to make the Advance to which such notice relates if the Company has failed to timely provide such Funding Notice to such Lender, unless waived by such Lender. In addition, no Lender shall be required make an Advance to the Company (i) on an Installment Date occurring after April 30, 2017 if the Company has not completed its first Public Offering on or prior to ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) if either ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ no longer serves as an executive officer the Company as of the applicable Installment Date, or (iii) if an Event of Default has occurred and is continuing, provided that notwithstanding clauses (i) through (iii) above, each Lender may, in its sole discretion, elect to make such Advance to the Company upon receipt of the Funding Notice (to the extent not otherwise waived) as set forth above. If any Lender fails to make an Advance (pursuant to a Funding Notice validly given by the Company hereunder) on an Installment Date (a “Defaulting Lender”) occurring on (a) April 15, 2017 as required pursuant to this Section 1.4, such Defaulting Lender Borrower shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2.2, and seventy-five percent (75%) additional Advances for the construction of the Upfront Shares issued New Improvements in accordance with the following procedures and subject to the satisfaction of the following conditions:
(a) The Borrower shall deliver to Lender a fully executed Application for Advance that has been prepared in accordance with the Disbursement Agreement. The Application for Advance shall have appended thereto all mechanics and materialmen’s lien waivers and copies of all invoices for which payment is being sought, all in accordance with the Disbursement Agreement;
(b) [RESERVED;]
(c) Lender shall have five (5) business days after receipt of an Application for Advance within which to conduct inspections and/or have the Project Inspector to satisfy itself that the work covered by the Application for Advance has been or is being accomplished in a satisfactory manner. Lender shall deliver written objections to any Application for Advance within said five (5) business day period or Lender shall be cancelled deemed to have approved such Application. If all conditions precedent to the requested Construction Advance have been complied with to the reasonable satisfaction of Lender and forfeited automaticallythe Title Company, without Lender shall advance the amount set forth in such Application for Advance, at its discretion, either directly to Borrower or through the Title Company within said five (5) day period. Each Construction Advance made pursuant to an Application for Advance for payment of any action required other items set forth in the Approved Budget shall be advanced to Borrower or through the Title Company, at Lender’s discretion; The payment by Lender and/or the Title Company of any Application for Advance shall not constitute an approval or acceptance of the work or materials by the Lender, and Borrower hereby agrees that Lender shall be relieved from any liability or responsibility relating to: (1) the quality of the work, the quantity of the work, the rate of progress in completion of the work, or the sufficiency of materials or labor being supplied in connection therewith; and (2) any errors, omissions, inconsistencies or other defects of any nature in the Plans;
(d) Any and each Construction Advance of the proceeds of the Loan shall be made only in accordance with the terms and conditions of the Approved Budget and the Construction Contract, and subject to the terms and conditions of this Loan Agreement. All expenses of making any Advance through the Title Company shall be borne by Borrower;
(e) There shall then exist no Event of Default that is continuing;
(f) The representations and warranties made in this Loan Agreement shall be true and correct in all material respects on and as of the date of each Advance, with the same effect as if made on that date, except to the extent that such representations and warranties relate solely to an earlier date;
(g) Borrower will procure and deliver to Lender releases or waivers of mechanic’s and materialmen’s liens and receipted bills with respect to the preceding month’s disbursement showing payment to all parties who have furnished materials or services or performed labor of any kind in connection with the construction of any of the New Improvements;
(h) The Title Insurance Policy shall be endorsed and down-dated so as to extend title insurance coverage in an amount equal to each subsequent Advance with no additional title exceptions noted thereon unless Lender does not deem such exceptions objectionable or Lender is provided other assurances with respect to such exceptions reasonably acceptable to Lender;
(i) There shall be delivered to Lender evidence satisfactory to Lender that the unadvanced Loan proceeds will be sufficient to pay for the completion of all New Improvements by the Completion Date in full accordance with the Plans. Such evidence may, at Lender’s reasonable request, include a certificate signed by the Project Inspector. To the extent that Loan proceeds are inadequate and subject to Section 4.10, Lender must be satisfied that Borrower has otherwise arranged, by the funding of a Borrower’s Deposit or otherwise, for the providing of funds necessary to complete the New Improvements by the Completion Date in accordance with the Plans. The Loan must at all times be “in balance,” meaning that the total amount of the Loan not yet advanced, plus retainage and agreed reserves, shall equal or exceed the estimated cost of completion of construction of the New Improvements;
(j) The work covered by each Application for Advance and all work preliminary thereto, shall have been performed to the reasonable satisfaction of Lender and the Project Inspector, except that an Application for Advance may request an Advance to cover the cost of pre-paid deposits or construction contract costs which a material supplier, contractor or sub-contractor requires to be paid prior to commencing work;
(k) With respect to Construction Advances for costs associated with the Phase 2 Improvements, Lender shall have received (i) the Phase 2 Plans, (ii) an assignment of the Phase 2 Plans substantially in accordance with terms of Section 4.19, with such changes thereto as may be necessary to reflect the application thereof to the Phase 2 Plans, and (iii) fully executed change orders to the Construction Contract increasing the guaranteed maximum price to construct the Phase 2 Improvements to the amount shown on the part of Approved Budget for the Defaulting Lender, or Phase 2 Improvements; and
(bl) May 15, 2017 or June 15, 2017 as required pursuant to this Section 1.4, such Defaulting Lender shall not be entitled to receive have received any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2all other documents that Lender may reasonably require.
Appears in 1 contract
Sources: Secured Construction Loan Agreement (Lakes Entertainment Inc)
Additional Advances. Each Lender will, on each shall make one additional advance of April 15, 2017, May 15, 2017 and June 15, 2017 (each, together with the Closing Date, shall be deemed to be an “Installment Date”), deliver Loan in the amount of such $1,900,000.00 fifteen (15) business days following a request therefore from Borrower and Lender’s Pro Rata Share of Two Million Dollars ($2,000,000) (each such advance's receipt, together with the advances delivered on the Closing Datereview, an “Advance”), by check payable to the Company or by wire transfer to a bank account designated by the Company, provided that each Lender’s obligation to fund each Advance is subject to the Lender’s receipt from the Company of a written notice (the “Funding Notice”), substantially in the form attached hereto as Exhibit E, approval and/or confirmation of the Company’s election to borrow such Advance at least five (5) Business Days prior to the date of such Advance (it being understood that neither Lender shall have an obligation to make the Advance to which such notice relates if the Company has failed to timely provide such Funding Notice to such Lender, unless waived by such Lender. In addition, no Lender shall be required make an Advance to the Company (i) on an Installment Date occurring after April 30, 2017 if the Company has not completed its first Public Offering on or prior to ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) if either ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ no longer serves as an executive officer the Company as of the applicable Installment Date, or (iii) if an Event of Default has occurred and is continuing, provided that notwithstanding clauses (i) through (iii) abovefollowing, each in form and content satisfactory to Lender may, in its sole discretion, elect to make such Advance to the Company upon receipt of the Funding Notice (to the extent not otherwise waived) as set forth above. If any Lender fails to make an Advance (pursuant to a Funding Notice validly given by the Company hereunder) on an Installment Date (a “Defaulting Lender”) occurring on :
(a) April 15There is not a material Event of Default hereunder or under any of the other Loan Documents.
(b) The representations and warranties contained in this Loan Agreement and in all other Loan Documents are true and correct in all material respects.
(c) Lender shall have received, 2017 at Borrower's expense, an endorsement to the Title Policy insuring the priority of the Mortgage with respect to such advance and indicating that no intervening liens exist against the Project.
(d) Borrower shall have paid the Costs incurred by Lender in connection with such advance (including title charges, and costs and expenses of Lender's attorneys).
(e) No change shall have occurred in the financial condition of Borrower or any Principal, which would have, in Lender's judgment, a material adverse effect on the Loan, the Project, or Borrower's or any Principal's ability to perform its obligations under the Loan Documents.
(f) No material condemnation or adverse, as required pursuant determined by Lender, zoning or usage change proceeding shall have occurred or shall have been threatened against the Project; the Project shall not have suffered any damage by fire or other casualty which has not been repaired or is not being restored in accordance with this Agreement; no law, regulation, ordinance, moratorium, injunctive proceeding, restriction, litigation, action, citation or similar proceeding or matter shall have been enacted, adopted, or threatened by any governmental authority, which would have, in Lender's judgment, a material adverse effect on the Project or Borrower's or any Principal's ability to this Section 1.4perform its obligations under the Loan Documents.
(g) On the thirtieth (30th) day of the month preceding the month in which the additional advance is requested, such Defaulting the proforma Net Operating Income (as defined on Schedule I attached hereto) of the Property shall be at least $1,800,000.00. Notwithstanding the foregoing, Lender shall not be entitled obligated to receive make any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2.2additional advance of Loan proceeds after February 27, and seventy-five percent (75%) of the Upfront Shares issued to Lender shall be cancelled and forfeited automatically, without any action required on the part of the Defaulting Lender, or (b) May 15, 2017 or June 15, 2017 as required pursuant to this Section 1.4, such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 22004.
Appears in 1 contract
Additional Advances. Each Lender will14
(a) If (i) Borrower requests an Additional Advance under Section [2.1(b)] of the Loan Agreement and the Administrator (or the Servicer acting on its behalf) reasonably determines that all conditions to the applicable Additional Advance set forth in Section [2.1(b)] of the Loan Agreement have been satisfied in full, then the Administrator (or the Servicer acting on its behalf) shall give written notice thereof to each of April 15the Holders, 2017, May 15, 2017 and June 15, 2017 (each, together with the Closing Date, which notice shall be deemed to be an “Installment Date”), deliver set forth the amount of such LenderAdditional Advance, the portion thereof that is payable by each Holder (which shall be based on such Holder’s Pro Rata Share Percentage Interest) and the date on which each Holder is requested to remit its pro rata share of Two Million Dollars such Additional Advance thereof to the Administrator ($2,000,000or the Servicer acting on its behalf), and shall describe in reasonable detail the purpose for such Additional Advance.
(b) Each Holder shall be obligated to fund its pro rata share of each Additional Advance based on each Holder’s Percentage Interest.
(each such advance, together with c) If any Holder defaults in its obligation to advance its pro rata share of any Additional Advance approved by Administrator (or the advances delivered Servicer acting on its behalf) on the Closing Date, an “Advance”), by check payable to the Company or by wire transfer to a bank account designated by the Company, provided that each Lender’s obligation to fund each Advance is subject to the Lender’s receipt from the Company of a written notice date (the “Funding NoticeDate”) that such Advance is required to be made hereunder (such unfunded amount, a “Delinquent Advance Amount”), substantially such Holder shall be a “Delinquent Advance Holder” for all purposes hereunder until and unless such delinquency is cured in accordance with the form attached hereto terms of clause (iii) below, and the following provisions shall apply:
(i) Each Holder that is not a Delinquent Advance Holder (a “Non-Delinquent Advance Holder”) shall have the right, but not the obligation, to fund such Delinquent Advance Holder’s portion of such Additional Advance, and the amount so funded by the Non-Delinquent Advance Holder shall bear interest at the Mortgage Default Rate, which shall be payable pursuant to Section 3 hereof (any Non-Delinquent Advance Holder making any such advance, an “Electing Non-Delinquent Advance Holder”). 14 Delete Section 35 if the Loan does not include future advances.
(ii) Subject to Delinquent Advance Holder’s right to cure as Exhibit Eprovided in clause (iii) below, but notwithstanding anything else to the contrary contained in this Agreement, a Delinquent Advance Holder shall have no right to participate in any discussions among and/or decisions by Holders hereunder and/or under the other Loan Documents. Further, any Delinquent Advance Holder shall be bound by any amendment to, or waiver of, any provision of, or any action taken or omitted to be taken by the Administrator, the Servicer and/or the Non-Delinquent Advance Holder(s) under, any Loan Document which is made subsequent to the Delinquent Advance Holder’s becoming a Delinquent Advance Holder and prior to such Delinquent Advance Holder’s cure of such delinquency.
(iii) A Delinquent Advance Holder may cure a delinquency arising out of its failure to fund its required portion of any Additional Advance if, within thirty (30) days following the Company’s election Funding Date (the “Cure Period”), it remits to borrow the Servicer its required portion of such Additional Advance (together with interest thereon at the Mortgage Default Rate for the period from the date such Advance at least five (5) Business Days prior to was made until the date of such Advance (it being understood that neither Lender shall have an obligation to make the Advance to which such notice relates if the Company has failed to timely provide such Funding Notice to such Lender, unless waived by such Lenderrepayment). In additionthe event any Delinquent Advance Holder cures a delinquency, no Lender such Delinquent Advance Holder nonetheless shall be required make an bound by any amendment to or waiver or any provision of, or any action taken or omitted to be taken by the Servicer and/or the Non-Delinquent Advance Holders under, any Loan Document which is made subsequent to the Company (i) on an Installment Date occurring after April 30, 2017 if the Company has not completed its first Public Offering on or that Holder’s becoming a Delinquent Advance Holder and prior to ▇▇▇▇▇ ▇▇its curing the delinquency as provided in this Section 35(c), ▇▇▇▇provided, that such amendment or waiver of action was taken in accordance with the provisions of this Agreement.
(▇▇iv) if either ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ no longer serves as an executive officer the Company as Any Delinquent Advance Holder agrees to indemnify and save harmless Administrator, Servicer and each of the applicable Installment Dateother Holders and their respective successors and assigns, and each of their agents, employees, officers, directors, stockholders, partners and members (collectively, “Indemnified Parties”) for, from and against any claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or (iii) if an Event of Default has occurred nature, known or unknown, contingent or otherwise, whether incurred or imposed within or outside the judicial process, including, without limitation, reasonable attorneys’ fees and is continuing, provided that notwithstanding clauses (i) through (iii) above, each Lender may, in its sole discretion, elect to make such Advance to the Company disbursements imposed upon receipt or incurred by or asserted against any of the Funding Notice (Indemnified Parties by reason of Delinquent Advance Holder’s failure to comply with the extent not otherwise waived) as set forth above. If any Lender fails provisions hereof, including, without limitation, failing to make an Additional Advance (pursuant to a Funding Notice validly given by the Company hereunder) on an Installment Date (a “Defaulting Lender”) occurring on (a) April 15, 2017 as which is required pursuant to this Section 1.4, such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2.2, and seventy-five percent (75%) the terms of the Upfront Shares issued to Lender Loan Documents, the terms of which shall be cancelled and forfeited automatically, without any action required on survive the part termination of the Defaulting Lender, or (b) May 15, 2017 or June 15, 2017 as required pursuant to this Section 1.4, such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2Agreement.]
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (Starwood Credit Real Estate Income Trust)
Additional Advances. Each Lender willExcept as set forth in Section 5.13, on each absent an Event of April 15Default hereunder or under any of the Loan Documents, 2017or an event which, May 15, 2017 and June 15, 2017 (each, together with the Closing Dategiving of notice or passage of time would constitute an Event of Default, Lender shall make additional advances of the Loan ("ADDITIONAL ADVANCES") of up to the positive difference between the Initial Funding Amount and $2,750,000 to pay for the working capital needs of the Project. Additional Advances shall be deemed to be an “Installment Date”), deliver the amount of such Lender’s Pro Rata Share of Two Million Dollars disbursed no more often than monthly and in amounts not less than $50,000. At least fifteen ($2,000,00015) (each such advance, together with the advances delivered on the Closing Date, an “Advance”), by check payable to the Company or by wire transfer to a bank account designated by the Company, provided that each Lender’s obligation to fund each Advance is subject to the Lender’s receipt from the Company of a written notice (the “Funding Notice”), substantially in the form attached hereto as Exhibit E, of the Company’s election to borrow such Advance at least five (5) Business Days business days prior to the date of any requested disbursement, Borrower shall provide Lender with the following:
(a) A written request for payment executed by Borrower detailing all costs for which payment is requested together with a statement that such Advance costs have not been, nor will be, funded by Construction Mortgagee; and
(it being understood that neither Lender shall have an obligation b) Copies of invoices, canceled checks and/or other evidence of payment of amounts due and payable by Borrower. Additional Advances are to make the Advance to which such notice relates be made only if the Company has failed to timely provide such Funding Notice to such Lender, unless waived by such Lender. In addition, no Lender shall be required make an Advance to the Company (i) on an Installment Date occurring after April 30, 2017 if the Company has not completed its first Public Offering on or prior to ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) if either ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ no longer serves as an executive officer the Company as of the applicable Installment Date, or (iii) if an Event of Default (as hereinafter defined) has occurred occurred, and is continuingare subject to Lender's approval, provided that notwithstanding clauses (i) through (iii) above, each Lender may, in its sole discretion, elect to make such Advance to the Company upon receipt of the Funding Notice (which approval shall not be unreasonably withheld to the extent not otherwise waived) the Additional Advance requested is in an amount and for purposes consistent with the Business Plan (as set forth abovehereinafter defined). If any Lender fails reserves the right to make an require its independent consultant to review and approve each Additional Advance (pursuant to a Funding Notice validly given by requested. Notwithstanding the Company hereunder) on an Installment Date (a “Defaulting Lender”) occurring on (a) April 15foregoing, 2017 as required pursuant to this Section 1.4, such Defaulting Lender shall not be entitled obligated to receive make any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2.2Additional Advance after August 31, and seventy-five percent (75%) of the Upfront Shares issued to Lender shall be cancelled and forfeited automatically, without any action required on the part of the Defaulting Lender, or (b) May 15, 2017 or June 15, 2017 as required pursuant to this Section 1.4, such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 21995.
Appears in 1 contract
Additional Advances. Each Lender will, on each of April 15, 2017, May 15, 2017 and June 15, 2017 (each, together with i) On any Business Day prior to the Closing Repurchase Date, shall be deemed if at any time the effective Advance Rate based on the outstanding Purchase Price with respect to be a Purchased Asset is less than the Advance Rate as set forth in the Confirmation for such Purchased Asset, Seller may submit to Administrative Agent a request that Buyers transfer cash to Seller so as to increase the outstanding Purchase Price for such Purchased Asset in the amount requested by Seller (an “Installment Date”), deliver the amount of such Lender’s Pro Rata Share of Two Million Dollars ($2,000,000) (each such advance, together with the advances delivered on the Closing Date, an “Additional Advance”), by check payable . Buyers’ agreement to the Company or by wire transfer to a bank account designated by the Company, provided that each Lender’s obligation to fund each make any Additional Advance is subject to the Lender’s receipt from the Company of a written notice (the “Funding Notice”), substantially shall be in the form attached hereto as Exhibit Esole discretion of Administrative Agent, on behalf of the Company’s election to borrow such Advance at least five (5) Business Days prior to the date of such Advance (it being understood that neither Lender shall have an obligation to make the Advance to which such notice relates if the Company has failed to timely provide such Funding Notice to such Lender, unless waived by such Lender. In addition, no Lender shall be required make an Advance to the Company (i) on an Installment Date occurring after April 30, 2017 if the Company has not completed its first Public Offering on or prior to ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) if either ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ no longer serves as an executive officer , and in any case is subject to the Company satisfaction of the following conditions precedent, both immediately prior to making such Additional Advance and also after giving effect to the consummation thereof:
(A) as of the applicable Installment Datefunding of such Additional Advance, no Margin Deficit that is due and payable or (iii) if an Event of Default has occurred and is continuing, provided that notwithstanding clauses continuing or would result from the funding of such Additional Advance;
(iB) through (iii) above, each Lender may, in its sole discretion, elect to make such Advance to the Company upon receipt funding of the Funding Notice Additional Advance would not cause the related Purchased Asset to exceed the applicable Maximum Advance Rate;
(C) the funding of the Additional Advance would not cause the aggregate outstanding Purchase Price for all Purchased Assets to exceed the extent not otherwise waivedMaximum Facility Amount;
(D) as the amount of the Additional Advance is no less than $500,000; and
(E) Administrative Agent, on behalf of Buyers, shall have satisfactorily completed all applicable credit approval requirements.
(ii) On the date of the Additional Advance, which shall occur following the final approval of the Additional Advance that all conditions set forth abovein this Article 3(k) have been satisfied, Buyers shall transfer cash to Seller as provided in this Article 3(k) (and in accordance with the wire instructions provided by Seller in such request). If any Lender fails to make an Upon approval by Administrative Agent, on behalf of Buyers, of a particular Additional Advance (pursuant to a Funding Notice validly given by the Company hereunder) on an Installment Date (a “Defaulting Lender”) occurring on (a) April 15, 2017 as required pursuant to this Section 1.4Article 3(k), such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to Administrative Agent, on such Installment Date pursuant to Sections 2.1 and 2.2behalf of Buyers, and seventy-five percent (75%) of Seller shall modify the Upfront Shares issued existing Confirmation for the applicable Transaction to Lender shall be cancelled set forth the new Advance Rate, outstanding Purchase Price and forfeited automatically, without Buyer’s LTV for such Purchased Asset and any action required other modifications to the terms set forth on the part of the Defaulting Lender, or (b) May 15, 2017 or June 15, 2017 as required pursuant to this Section 1.4, such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2existing Confirmation.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract Agreement (Claros Mortgage Trust, Inc.)
Additional Advances. Each Lender willSubject to the terms and conditions set forth in this Section 2.1(b), within 5 Business Days after the request of Borrowers by delivery of a borrowing request, KFT Trust agrees to make term loans to Borrowers on or prior to March 31, 2014, in an aggregate principal amount not to exceed $50,000,000. Once repaid, whether such repayment is voluntary or required, the Term Loan Advance may not be reborrowed. The obligation of KFT Trust to make the term loans to the Borrowers under this Section 2.1(b) is subject to the following conditions:
(i) At the time of and after giving effect to such advance, no Event of Default shall have occurred and be continuing;
(ii) The Borrowers shall have provided to KFT Trust a near term cash flow forecast demonstrating the need for such Term Loan Advance;
(iii) The Borrowers shall have executed and delivered to KFT Trust a Warrant, in the form of Exhibit H with respect to the amount advanced, with such value and such number of shares as is set forth in such Warrant; and
(iv) The Qualified Debt Offering shall not have been consummated.”
2.7 Section 2.1(d)(i) of the Original Loan Agreement is hereby amended by deleting it in its entirety and replacing it with the following:
(i) Borrower will pay interest on the Term Loan Advance on the first day of each calendar month, beginning on the first day of April 15, 2017, May 15, 2017 and June 15, 2017 (each, together with the month immediately following one full month after the Closing Date, provided that interest may, at Borrowers’ election, be paid as PIK Interest calculated at the Term Loan Interest Rate. The entire Term Loan Advance principal balance and all accrued but unpaid interest hereunder (including PIK Interest), shall be deemed due and payable on the Term Loan Maturity Date. Borrowers shall make all payments under this Agreement without setoff, recoupment or deduction and regardless of any counterclaim or defense. Payments to each Lender hereunder shall be an “Installment Date”), deliver made to such Lender at the amount account from time to time designated by such Lender by written notice to the Company. Each payment on account of such Lender’s the Term Loan Advance shall be paid to Lenders in accordance with their Pro Rata Share shares. For clarification, the addition of Two Million Dollars ($2,000,000) (each such advance, together PIK Interest to the outstanding principal balance of the Term Loan Advance in accordance with the advances delivered on the Closing Date, an “Advance”), by check payable to the Company or by wire transfer to a bank account designated by the Company, provided that each Lender’s obligation to fund each Advance is subject to the Lender’s receipt from the Company of a written notice (the “Funding Notice”), substantially in the form attached hereto as Exhibit E, of the Company’s election to borrow such Advance at least five (5) Business Days prior to the date of such Advance (it being understood that neither Lender shall have an obligation to make the Advance to which such notice relates if the Company has failed to timely provide such Funding Notice to such Lender, unless waived by such Lender. In addition, no Lender shall be required make an Advance to the Company (i) on an Installment Date occurring after April 30, 2017 if the Company has not completed its first Public Offering on or prior to ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) if either ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ no longer serves as an executive officer the Company as of the applicable Installment Date, or (iii) if an Event of Default has occurred and is continuing, provided that notwithstanding clauses (i) through (iii) above, each Lender may, in its sole discretion, elect to make such Advance to the Company upon receipt of the Funding Notice (to the extent not otherwise waived) as set forth above. If any Lender fails to make an Advance (pursuant to a Funding Notice validly given by the Company hereunder) on an Installment Date (a “Defaulting Lender”) occurring on (a) April 15, 2017 as required pursuant to this Section 1.4, such Defaulting Lender terms hereof shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2.2, and seventy-five percent (75%constitute an additional Advance hereunder.”
2.8 Section 2.1(d)(ii) of the Upfront Shares issued to Lender shall be cancelled Original Loan Agreement is hereby amended by deleting it in its entirety and forfeited automatically, without any action required on replacing it with the part of the Defaulting Lender, or (b) May 15, 2017 or June 15, 2017 as required pursuant to this Section 1.4, such Defaulting Lender shall not be entitled to receive any Installment Shares or Warrants to which it would otherwise be entitled to on such Installment Date pursuant to Sections 2.1 and 2.following:
Appears in 1 contract