Loan Advances. (a) On the date hereof, the outstanding principal balance of the Original Note, as amended by the First Amendment, is $36,250,000, and the outstanding principal balance of the First Additional Note is $10,000,000. Lender shall lend to Borrower an additional amount equal to the New Loan Amount, which will be advanced as follows: on the Closing Date or, if later, the date on which Borrower fulfills all conditions precedent to funding, Lender will advance to Borrower $38,750,000 ("Initial Advance") and, at the request of the Borrower made in accordance with and subject to the conditions contained in Section 2.1(b), Lender will advance to Borrower on or before August 1, 2001 in one or more tranches the additional aggregate amount of not more than $25,000,000 ("Unfunded Loan Amount"). (b) Lender's obligation to make advances of all or any portion of the Unfunded Loan Amount following the Initial Advance shall be subject to the conditions that, with respect to each such advance requested: (i) no Default or Event of Default shall have occurred and be continuing; (ii) no Material Adverse Condition shall exist with respect to Borrower, the Fund taken as a whole, any other member of the Borrower Control Group or any Operating Company; provided, that, if a Material Adverse Condition exists solely with respect to one or more AACDFK Entities and one or more members of the Borrower Control Group (excluding the Borrower and the Fund), that own, directly or indirectly, an interest in such AACDFK Entities (as long as the Material Adverse Condition affecting the applicable members of the Borrower Control Group is solely caused by or results solely from the Material Adverse Condition of the subject AACDFK Entities), and all of the other conditions to Lender's obligation to make advances of all or any portion of the Unfunded Loan Amount are satisfied, Lender shall be obligated to fund such subsequent advance as long as none of the proceeds of such advance shall be advanced, contributed or otherwise invested, directly or indirectly, in any Entity as to which a Material Adverse Condition exists at the time of such advance; (iii) Lender shall have received Borrower's written request for each advance not less than 30 nor more than 60 days prior to the requested funding date for such advance, specifying the amount requested, the use of the proceeds attributable to such advance, the new Collateral to be furnished in connection therewith, the Borrower's calculation (with all necessary supporting information) demonstrating the Debt Service Coverage Ratio, and the proposed funding date, and certifying that no Default or Event of Default has occurred and is continuing; (iv) advances shall not be made more often than once in any rolling 30-day period; (v) no advance other than the last such advance shall be in an amount less than $5,000,000; (vi) Lender shall have received payment from Borrower of a fee equal to three quarters of one percent (0.75%) of the amount of such advance; (vii) in the event that subsequent to the Closing Date (x) any member of the Borrower Control Group shall have acquired any direct or indirect Equity Interest in any Entity, or (y) any member of the Borrower Control Group shall have made any loans to any Entity, or (z) any member of the Borrower Control Group shall have purchased or otherwise acquired any property of any Entity, Lender shall have received a perfected, first priority Lien in such interest, loan and property, as created and evidenced by such instruments (including new pledge agreements, Direction Letters, and amendments, if required by Lender, to the Amended and Restated Deposit Account Agreement) as Lender may request, all in form and substance reasonably satisfactory to Lender; provided, however, that the foregoing shall not be deemed to constitute a consent or waiver by Lender (to the extent that such consent is otherwise required by this Agreement or any Loan Document) with respect to any such purchase, acquisition or loan by Borrower or any member of the Borrower Control Group; (viii) the conditions precedent to funding contained in Section 3.1(a)(3), (4), (5), (6), (7), (8), (9), (10) and (11) shall have been fulfilled insofar as Lender shall deem them applicable to any subsequent advance; provided, that, (x) the conditions precedent to funding contained in Section 3.1(a)(3), (4), (5), (6), and (7) shall only be applicable with respect to any new Collateral, and (y) the representations and warranties set forth in the last two sentences of Section 4.1(r) hereto shall not be remade with respect to any of the AACDFK Entities; and (ix) Debt Service Achievement shall be in effect. (c) Notwithstanding anything in this Section 2.1 to the contrary, until such time as (i) either the BT Guaranty is terminated or the loan made by Bankers Trust Company pursuant to the BT Agreement has been extended on terms satisfactory to Lender in Lender's sole and absolute discretion, and (ii) all obligations of Prometheus ES to make capital contributions to Intown have been satisfied, Lender shall have no obligation to advance any portion of the Unfunded Loan Amount except in accordance with the following: fundings of portions of the Unfunded Loan Amount shall be permitted only to the extent that, after giving effect to such advance and the application by Borrower of the proceeds thereof (as hereinafter required to be applied), the aggregate of the remaining Unfunded Loan Amount plus the balance in the Retained Amount Reserve shall be equal to or greater than the sum of (x) the lesser of $35,500,000 and the maximum principal amount guaranteed under the BT Guaranty, and (y) the amount which Prometheus ES is obligated to contribute to the capital of Intown. To the extent that proceeds of the Unfunded Loan Amount are disbursed for such purposes, Borrower and the applicable member(s) of the Borrower Control Group shall use, directly or indirectly, such proceeds to (A) repay a portion of the loan made by Bankers Trust Company under the BT Agreement in order to terminate or reduce the principal amount of the BT Guaranty or otherwise to induce Bankers Trust Company to extend such loan on terms satisfactory to Lender in Lender's sole and absolute discretion, and (B) subject to Section 2.1(e), fund all or a portion of the obligations of Prometheus ES to contribute capital to Intown. (d) Notwithstanding anything contained herein to the contrary, prior to disbursement of any other portion of the Unfunded Loan Amount to be advanced at any time, there shall be deposited into the Interest Reserve of the Deposit Account an amount which shall be sufficient to pay all interest, on the portion of the Unfunded Loan Amount as to which Borrower has requested a disbursement, which will become due and payable (i) on each Payment Date following the date of such disbursement and occurring during the Fiscal Quarter in which such disbursement is to occur, and (ii) at Lender's discretion, on each of the first and second Payment Dates occurring during the Fiscal Quarter next succeeding the Fiscal Quarter in which such disbursement is to occur, all as estimated in accordance with the provisions of the Amended and Restated Deposit Account Agreement. (e) Notwithstanding anything to the contrary contained in this Section 2.1, Lender shall have no obligation to disburse the last $3,750,000 of the Unfunded Loan Amount unless Prometheus ES shall have actually received a distribution of cash (which shall not have been merely "deemed" to have been made pursuant to the Intown Agreement) constituting the "Class A Preferred Return" (as such term is defined in the Intown Agreement) for the second calendar quarter of 2001).
Appears in 2 contracts
Sources: Loan Agreement (Lazard Freres Real Estate Investors LLC), Loan Agreement (Lazard Freres Real Estate Investors LLC)
Loan Advances. (ai) On During the Reinvestment Period, the Borrower may, at its option, request the Lenders to make advances of funds (each, a “Loan Advance”) under this Agreement pursuant to a Funding Notice; provided, however, that no Lender shall be obligated to make any Loan Advance on or after the date hereofthat is two (2) Business Days prior to the Reinvestment Period End Date, unless the outstanding principal balance Borrower has entered into a binding commitment to purchase an Eligible Loan prior to the declaration of the Original Note, as amended by Termination Date or the First Amendment, is $36,250,000, Reinvestment Period End Date pursuant to Section 9.2(a) and the outstanding principal balance of the First Additional Note related Advance Date is $10,000,000. not more than thirty (30) days after such declaration; provided, further, that no Lender shall lend be obligated to Borrower an additional amount equal to make any Advance if such Advance would result in such Lender exceeding its Commitment.
(ii) Following the New Loan Amount, which will be advanced as follows: on receipt of a Funding Notice during the Closing Date or, if later, the date on which Borrower fulfills all conditions precedent to funding, Lender will advance to Borrower $38,750,000 ("Initial Advance") and, at the request of the Borrower made in accordance with Reinvestment Period and subject to the terms and conditions contained in Section 2.1(b)hereinafter set forth, the Lenders shall fund such Loan Advance. Notwithstanding anything to the contrary herein, no Lender will advance shall make any Loan Advance if, after giving effect to Borrower on or before August 1, 2001 in one or more tranches such Advance and the additional aggregate amount of not more than $25,000,000 ("Unfunded Loan Amount").
(b) Lender's obligation addition to make advances of all or any portion the Collateral of the Unfunded Loan Amount following Eligible Loans to be acquired by the Initial Advance shall be subject to Borrower with the conditions thatproceeds of such Advance, with respect to each such advance requested:
(i) no in the sole discretion of any such Lender, a Default or Event of Default shall have occurred and would or could reasonably be continuing;
expected to result therefrom or (ii) no Material Adverse Condition shall exist with respect to Borrower, the Fund taken as a whole, any other member of aggregate Advances Outstanding would exceed the Borrower Control Group or any Operating Company; provided, that, if a Material Adverse Condition exists solely with respect to one or more AACDFK Entities and one or more members of the Borrower Control Group (excluding the Borrower and the Fund), that own, directly or indirectly, an interest in such AACDFK Entities (as long as the Material Adverse Condition affecting the applicable members of the Borrower Control Group is solely caused by or results solely from the Material Adverse Condition of the subject AACDFK Entities), and all of the other conditions to Lender's obligation to make advances of all or any portion of the Unfunded Loan Amount are satisfied, Lender shall be obligated to fund such subsequent advance as long as none of the proceeds of such advance shall be advanced, contributed or otherwise invested, directly or indirectly, in any Entity as to which a Material Adverse Condition exists at the time of such advance;Borrowing Base.
(iii) Lender shall have received Borrower's written request for each advance not less than 30 nor more than 60 days prior to the requested funding date for such advance, specifying the amount requested, the use of the proceeds attributable to such advance, the new Collateral to be furnished in connection therewith, the Borrower's calculation (with all necessary supporting information) demonstrating the Debt Service Coverage Ratio, and the proposed funding date, and certifying that So long as no Default or Event of Default has occurred and is continuing;, the Borrower may, with the written consent of the Administrative Agent, add additional Persons who satisfy the requirements set forth in Section 12.16 (and subject to recordation in the Register) as ▇▇▇▇▇▇▇ and, upon prior written notice to the Lenders, increase the Commitments hereunder (up to $800,000,000); provided that the Commitment of any Lender may only be increased with the prior written consent of such Lender, in its sole discretion, and the Administrative Agent. Each additional Lender shall become a party hereto by executing and delivering to the Administrative Agent, the Collateral Agent, the Collateral Manager and the Borrower a Joinder Supplement.
(iv) advances shall The Borrower may, within 90 days but not be made less than 30 days prior to the Reinvestment Period End Date, make a request to the Lenders to extend the Reinvestment Period End Date for an additional period of one or more often than once in any rolling 30-day period;
(v) no advance other than the last years, which response to such advance request shall be in an amount less than $5,000,000;
delivered to the Borrower (vi) Lender shall have received payment from Borrower with failure to deliver such response deemed a denial of a fee equal to three quarters of one percent (0.75%) such request). Upon mutual agreement among the Administrative Agent, each of the amount of such advance;
(vii) in the event that subsequent to the Closing Date (x) any member of relevant Lenders, the Borrower Control Group and the Collateral Manager, the Reinvestment Period End Date shall have acquired any direct or indirect Equity Interest in any Entity, or (y) any member of the be extended. The Borrower Control Group shall have made any loans to any Entity, or (z) any member of the Borrower Control Group shall have purchased or otherwise acquired any property of any Entity, Lender shall have received a perfected, first priority Lien in such interest, loan and property, as created and evidenced by such instruments (including new pledge agreements, Direction Letters, and amendments, if required by Lender, to the Amended and Restated Deposit Account Agreement) as Lender may request, all in form and substance reasonably satisfactory to Lender; provided, however, confirms that the foregoing shall not be deemed to constitute a consent or waiver by Lender (to the extent that such consent is otherwise required by this Agreement or any Loan Document) with respect to any such purchase, acquisition or loan by Borrower or any member of the Borrower Control Group;
(viii) the conditions precedent to funding contained in Section 3.1(a)(3), (4), (5), (6), (7), (8), (9), (10) and (11) shall have been fulfilled insofar as Lender shall deem them applicable to any subsequent advance; provided, that, (x) the conditions precedent to funding contained in Section 3.1(a)(3), (4), (5), (6), and (7) shall only be applicable with respect to any new Collateral, and (y) the representations and warranties set forth in the last two sentences of Section 4.1(r) hereto shall not be remade with respect to any of the AACDFK Entities; and
(ix) Debt Service Achievement shall be in effect.
(c) Notwithstanding anything in this Section 2.1 to the contrary, until such time as (i) either the BT Guaranty is terminated Lenders or the loan made by Bankers Trust Company pursuant to the BT Agreement has been extended on terms satisfactory to Lender Administrative Agent, in Lender's their sole and absolute discretion, and (ii) all obligations of Prometheus ES without regard to make capital contributions to Intown have been satisfied, Lender shall have no obligation to advance any portion the value or performance of the Unfunded Loan Amount except in accordance with the following: fundings of portions of the Unfunded Loan Amount shall be permitted only to the extent thatLoans or any other factor, after giving effect to such advance and the application by Borrower of the proceeds thereof (as hereinafter required to be applied), the aggregate of the remaining Unfunded Loan Amount plus the balance in the Retained Amount Reserve shall be equal to or greater than the sum of (x) the lesser of $35,500,000 and the maximum principal amount guaranteed under the BT Guaranty, and (y) the amount which Prometheus ES is obligated to contribute to the capital of Intown. To the extent that proceeds of the Unfunded Loan Amount are disbursed for such purposes, Borrower and the applicable member(s) of the Borrower Control Group shall use, directly or indirectly, such proceeds to (A) repay a portion of the loan made by Bankers Trust Company under the BT Agreement in order to terminate or reduce the principal amount of the BT Guaranty or otherwise to induce Bankers Trust Company may elect not to extend such loan on terms satisfactory to Lender in Lender's sole and absolute discretion, and (B) subject to Section 2.1(e), fund all or a portion of the obligations of Prometheus ES to contribute capital to IntownReinvestment Period End Date.
(d) Notwithstanding anything contained herein to the contrary, prior to disbursement of any other portion of the Unfunded Loan Amount to be advanced at any time, there shall be deposited into the Interest Reserve of the Deposit Account an amount which shall be sufficient to pay all interest, on the portion of the Unfunded Loan Amount as to which Borrower has requested a disbursement, which will become due and payable (i) on each Payment Date following the date of such disbursement and occurring during the Fiscal Quarter in which such disbursement is to occur, and (ii) at Lender's discretion, on each of the first and second Payment Dates occurring during the Fiscal Quarter next succeeding the Fiscal Quarter in which such disbursement is to occur, all as estimated in accordance with the provisions of the Amended and Restated Deposit Account Agreement.
(e) Notwithstanding anything to the contrary contained in this Section 2.1, Lender shall have no obligation to disburse the last $3,750,000 of the Unfunded Loan Amount unless Prometheus ES shall have actually received a distribution of cash (which shall not have been merely "deemed" to have been made pursuant to the Intown Agreement) constituting the "Class A Preferred Return" (as such term is defined in the Intown Agreement) for the second calendar quarter of 2001).
Appears in 2 contracts
Sources: Loan and Security Agreement (Kayne Anderson BDC, Inc.), Loan and Security Agreement (Kayne Anderson BDC, Inc.)
Loan Advances. (a) On Advances shall be made only with respect to an Eligible Property which is added to the date hereofCollateral Pool and in any and all events, Lender shall be satisfied, in the outstanding principal balance exercise of its sole judgment and discretion with the Original NoteEligible Property. In any and all events, only a real property which has been fully improved and is being legally used as amended by a residential rental multi-family property can be an Eligible Property and added to the First AmendmentCollateral Pool. Notwithstanding anything to the contrary in this Agreement, Borrower acknowledges and agrees that whether an individual Eligible Property is $36,250,000, added to the Collateral Pool and the outstanding principal balance of the First Additional Note is $10,000,000. Lender shall lend to Borrower an additional amount equal to the New Loan Amount, which will be advanced as follows: on the Closing Date or, if later, the date on which Borrower fulfills all conditions precedent to funding, Lender will advance to Borrower $38,750,000 ("Initial Advance") and, at the request of the Borrower made in accordance with and subject to the conditions contained in Section 2.1(b), Lender will advance to Borrower on or before August 1, 2001 in one or more tranches the additional aggregate amount of the proceeds of the Loan which Lender approves to be advanced with respect to the same are within Lender’s sole discretion. Additionally, Lender may require an additional covenant, as specified below, regarding the Debt Service Coverage Ratio (as defined in this Agreement) with respect to an Eligible Property, which may not more than $25,000,000 ("Unfunded Loan Amount")be applicable to any or all of the other Eligible Properties within the Collateral Pool. The additional covenant will be set to measure the actual performance of the Eligible Property on a going forward basis compared to the Borrower’s projections for the same, which projections were submitted to and approved by Lender at the time the Eligible Property was admitted to the Collateral Pool. The additional covenant shall require such Eligible Property to have a Debt Service Coverage Ratio of at least 1.25 to 1.00 measured on the 1st day after 18 full calendar months have elapsed from the date that the Eligible Property was admitted to the Collateral Pool.
(b) Lender's obligation Lender shall not be required to make advances of any Advance hereunder until the pre-closing requirements, all or any portion of the Unfunded Loan Amount following the Initial Advance shall be subject to the other conditions that, with respect to each such advance requested:
(i) no Default or Event of Default shall have occurred and be continuing;
(ii) no Material Adverse Condition shall exist with respect to Borrower, the Fund taken as a whole, any other member of the Borrower Control Group or any Operating Company; provided, that, if a Material Adverse Condition exists solely with respect to one or more AACDFK Entities and one or more members of the Borrower Control Group (excluding the Borrower and the Fund), that own, directly or indirectly, an interest in such AACDFK Entities (as long as the Material Adverse Condition affecting the applicable members of the Borrower Control Group is solely caused by or results solely from the Material Adverse Condition of the subject AACDFK Entities), and all other requirements set forth in this Agreement have been completed and fulfilled to satisfaction of the other conditions to Lender's obligation to make advances of all or any portion of the Unfunded Loan Amount are satisfied, at Borrower’s sole cost and expense. In no event shall Lender shall be obligated to fund such subsequent advance as long as none of the proceeds of such advance shall be advanced, contributed or otherwise invested, directly or indirectly, in any Entity as to which a Material Adverse Condition exists at the time of such advance;
(iii) Lender shall have received Borrower's written request for each advance not less than 30 nor more than 60 days prior to the requested funding date for such advance, specifying the amount requested, the use of the proceeds attributable to such advance, the new Collateral to be furnished in connection therewith, the Borrower's calculation (with all necessary supporting information) demonstrating the Debt Service Coverage Ratio, and the proposed funding date, and certifying that no Default or make an Advance if an Event of Default has occurred and is continuing;.
(c) On or prior to the date of the making of an Advance (including the initial Advance) of the Loan, Borrower shall provide to Lender each of the following, in form and substance acceptable to the Lender for each Eligible Property which is being added to the Collateral Pool by a the owner of the same who is being added as a Borrower pursuant to the terms of to this Agreement:
(i) A written draw request for an Advance in a specific amount and written authorization and instructions for the funding of the same to the Borrower which will receive the same.
(ii) A policy of title insurance insuring the lien of the Mortgage as a first lien in an amount equal to the allocated portion of such Advance for each such Eligible Property, with such coverages and endorsements, and in such form and content, as Lender shall require and as may be available under law from a title insurance company as is acceptable to Lender.
(iii) Four (4) copies of a current, certified Survey of each such Eligible Property, which shall be prepared in accordance with the Lender’s requirements therefor.
(iv) advances shall not be made more often than once An environmental assessment or report for each such Eligible Property, in any rolling 30-day period;form and substance satisfactory to the Lender and addressed to the Lender.
(v) no advance other than A physical condition report for each such Eligible Property addressed to Lender and completed by a consultant acceptable to Lender and attesting to the last such advance shall be in an amount less than $5,000,000;structural integrity and useful lives of the components of the existing improvements.
(vi) Certificates of insurance indicating that all insurance required by Lender shall have received payment as set forth in Section 4.4 hereof, from Borrower of a fee equal time to three quarters of one percent (0.75%) of the amount of such advance;time, and satisfactory as to coverage, limits, deductibles and companies, are in place.
(vii) in A copy of the event that subsequent to the Closing Date (x) any member Organizational Documents of the Borrower Control Group shall have acquired any direct owning such Eligible Property, certified as true, correct and complete by an officer or indirect Equity Interest authorized signatory of such Borrower, together with (i) a current certificate of good standing from the jurisdiction in any Entitywhich such Borrower is organized (and from the jurisdiction in which its Eligible Property is located, if different from the jurisdiction in which such Borrower is organized), and (ii) resolutions and/or consents of those parties necessary to authorize the transaction contemplated hereby.
(viii) The most current available financial statements of all Borrowers and Guarantor, signed and certified as true, correct and complete by either an officer or (y) any member authorized signatory of the Borrower Control Group shall have made any loans same, which are to any Entity, or (z) any member of the Borrower Control Group shall have purchased or otherwise acquired any property of any Entity, be satisfactory to Lender shall have received a perfected, first priority Lien in such interest, loan and property, as created and evidenced by such instruments (including new pledge agreements, Direction Letters, and amendments, if required by Lender, to the Amended and Restated Deposit Account Agreement) as Lender may request, all in form and substance reasonably and a certificate, in form and substance satisfactory to Lender, from the Chief Financial Officer or Chief Executive Officer of Guarantor certifying to Guarantor’s compliance with the financial covenants set forth on Schedule 8.
(ix) Information satisfactory to Lender that each such Eligible Property is in compliance with all applicable zoning regulations.
(x) A flood zone certification from a consultant acceptable to the Lender indicating that such Eligible Property is not located in a flood plain or any other flood-prone area as designated by any governmental agency; provided, however, that if any Eligible Property is so located and flood insurance is required by law, Borrower shall provide proof of flood insurance to the foregoing shall not Lender.
(xi) Property tax information with respect to each Eligible Property satisfactory to Lender.
(xii) A true, complete and correct rent roll for the Eligible Property and a true, correct and complete copy of the form of lease being used at the Eligible Property, both of which must be deemed acceptable to constitute a consent Lender in its sole discretion in form and content. Borrower acknowledges that without limiting any other term, covenant or waiver condition for an Advance based on an Eligible Property being part of the Collateral Pool, the tenancy at such Eligible Property must be as set forth on the rent roll approved by Lender with all leases (unless otherwise specified on the approved rent roll) being in full force and effect, with the tenants listed thereon having accepted possession and paying full and all rent and all other sums due and payable under their leases as are set forth on the rent roll and for the term of the leases, as set forth on the rent roll.
(xiii) An appraisal with respect to each such Eligible Property in form and substance satisfactory to Lender.
(xiv) Copy of the extent that such consent is otherwise required by this Agreement or any Loan DocumentSwap Contract, if applicable.
(xv) The Budget, Plans and Specifications, Project Schedule, Construction Contracts (including the identity of all Contractors) and all permits with respect to any such purchase, acquisition or loan by Borrower or any member and all construction of the Borrower Control Group;
(viii) the conditions precedent to funding contained in Section 3.1(a)(3), (4), (5), (6), (7), (8), (9), (10) and (11) shall have been fulfilled insofar as Lender shall deem them applicable to any subsequent advance; provided, that, (x) the conditions precedent to funding contained in Section 3.1(a)(3), (4), (5), (6), and (7) shall only be applicable Improvements with respect to any new Collateralthe Eligible Property achieving Stabilization, are delivered to and (y) the representations and warranties set forth approved by Lender in the last two sentences exercise of Section 4.1(r) hereto its sole discretion. In the case of permits, the same shall not be remade issued, final and non-appealable, without any appeal having been filed and pending. In the case of the Budget, if the total cost exceeds the amount of all Advances to be made with respect to such Eligible Property in order for the same to achieve Stabilization, then Borrower shall demonstrate to Lender that it has the necessary funds on hand and available and prior to Lender making any Advance, Borrower shall demonstrate to Lender’s satisfaction, in the exercise of Lender’s sole discretion, that Borrower has first paid for all costs in excess of the AACDFK Entities; and
(ix) Debt Service Achievement amount of the Advance and that the amount of the Advance shall be sufficient to pay for the remaining costs which will be incurred and/or need to be paid in effectorder for the Eligible Property to achieve Stabilization. In connection with the construction of Improvements, in addition to Lender first approving any and all Contractors, Lender shall also approve of the Architect, in the exercise of Lender’s sole discretion.
(cxvi) Notwithstanding anything All such other agreements, documents, instruments, certificates and/or exhibits which may be required, in the Lender’s judgment, including market data on the locale of the Eligible Property, to assure compliance with the requirements of this Section 2.1 Agreement and to enable Lender to determine, in the contrary, until such time as (i) either the BT Guaranty is terminated or the loan made by Bankers Trust Company pursuant to the BT Agreement has been extended on terms satisfactory to Lender in Lender's exercise of its sole and absolute discretion, that such Eligible Property satisfies its underwriting requirements for residential rental multi-family properties , an Advance and (ii) all obligations of Prometheus ES to make capital contributions to Intown have been satisfied, Lender shall have no obligation to advance any portion be part of the Unfunded Loan Amount except in accordance with the following: fundings of portions of the Unfunded Loan Amount shall be permitted only to the extent that, after giving effect to such advance and the application by Borrower of the proceeds thereof (as hereinafter required to be applied), the aggregate of the remaining Unfunded Loan Amount plus the balance in the Retained Amount Reserve shall be equal to or greater than the sum of (x) the lesser of $35,500,000 and the maximum principal amount guaranteed under the BT Guaranty, and (y) the amount which Prometheus ES is obligated to contribute to the capital of Intown. To the extent that proceeds of the Unfunded Loan Amount are disbursed for such purposes, Borrower and the applicable member(s) of the Borrower Control Group shall use, directly or indirectly, such proceeds to (A) repay a portion of the loan made by Bankers Trust Company under the BT Agreement in order to terminate or reduce the principal amount of the BT Guaranty or otherwise to induce Bankers Trust Company to extend such loan on terms satisfactory to Lender in Lender's sole and absolute discretion, and (B) subject to Section 2.1(e), fund all or a portion of the obligations of Prometheus ES to contribute capital to IntownCollateral Pool.
(d) Notwithstanding anything contained herein On or prior to the contrarydate of closing and, prior to disbursement as applicable, the making of any other portion of Advance (including the Unfunded Loan Amount to be advanced at any timeinitial Advance) under the Loan, there the following documents shall be deposited into executed and delivered to Lender, in quantity, form and substance acceptable to the Interest Reserve of Lender and to its counsel, to evidence and secure the Deposit Account an amount which shall be sufficient to pay all interest, on the portion of the Unfunded Loan Amount as to which Borrower has requested a disbursement, which will become due and payable Loan:
(i) on each Payment Date following This Agreement executed by Opportunity OP at the date closing of such disbursement and occurring during the Fiscal Quarter in which such disbursement is to occur, and Loan.
(ii) The Note executed by Opportunity OP at Lender's discretion, on each the closing of the Loan. In the case of a new entity which is to become a Borrower and thereby adding an Eligible Property to the Collateral Pool, an allonge to the Note, in form and content as required by Lender and its counsel whereby such new entity shall join in the Note and this Agreement as a Borrower thereunder and hereunder.
(iii) A Mortgage executed by each added Borrower that owns an Eligible Property to the Collateral Pool to secure the obligations of such Borrower under this Agreement, the Note and the other Loan Documents. The amount of each such Mortgage shall be in the amount of the Advances to be received by such Borrower with respect to the Eligible Property owned by it and being added to the Collateral Pool.
(iv) A security agreement (which may be incorporated within the Mortgage), which creates a first priority security interest in all equipment and second Payment Dates occurring in all of such Borrower’s intangible property relating to such Eligible Property, perfected by appropriate Uniform Commercial Code Financing Statements naming such Borrower, as debtor, and Lender, as Secured Party.
(v) The Assignments of Leases and Rents from each Borrower executing a Mortgage.
(vi) The Guaranty executed by Guarantor at the closing of the Loan. At such time as an additional Borrower is added and an Eligible Property is added to the Collateral Pool, Guarantor shall execute and deliver such consent, acknowledgement and confirmation of its liability with respect to the same and any and all Mortgages and other Loan Documents as Lender shall require
(vii) An Environmental Indemnity with respect to each Eligible Property executed by the Borrower owning such Eligible Property, Opportunity OP and Guarantor.
(viii) A current written opinion from outside counsel of Borrower and the Guarantor in form and substance reasonably acceptable to the Lender, addressed to the Lender at the closing of the Loan and as each Eligible Property is added to the Collateral Pool.
(ix) The Assignment from Opportunity OP in favor of Lender with respect to each Borrower as each Eligible Property is added to the Collateral Pool.
(x) The Assignment and Subordination of Property Management Agreement with respect to each Management Agreement and the Eligible Property which is added to the Collateral Pool and a subordination agreement executed by Guarantor and Advisor with respect to the payment of fees and any other sums by Guarantor to Advisor pursuant to the Advisory Agreement with respect to any Eligible Property which is added to the Collateral Pool upon the occurrence and during the Fiscal Quarter next succeeding continuance of an Event of Default under this Agreement or any of the Fiscal Quarter other Loan Documents.
(xi) The Assignment of Contracts and the Contractor’s Consent and Certificate from any and all Contractors and the Architect’s Consent and Certificate from the Architect, to the extent there is any Construction of Improvements at such Eligible Property.
(xii) Such other Loan Documents or other documents as the Lender may, in the exercise of its reasonable judgment, require to evidence and secure the Loan. The Lender may designate which of the Loan Documents are to be filed and/or placed of record, the order of filing and/or recording thereof, and the offices in which such disbursement is the same are to occurbe filed and/or recorded. Borrower shall pay all filing, all as estimated in accordance with documentary, recording and/or registration taxes and/or fees, if any, due upon the provisions of the Amended and Restated Deposit Account AgreementLoan Documents.
(e) A Property shall be an “Eligible Property” and added to the Collateral Pool if such Property meets the following requirements, as determined by Lender in its sole discretion, and provided that Lender shall have the right to reject any Property proposed by Borrower as an Eligible Property to be included in the Collateral Pool for any or no reason. Borrower acknowledges and agrees that no Property will be added to the Collateral Pool after May 31, 2014, provided, in the event an Eligible Property is added to the Collateral Pool on or prior to May 31, 2014, Advances for the same may be made after May 31, 2014 provided the approval of such Eligible Property and addition to the Collateral Pool provides for the making of such Advances as part of the Budget for the same and all other terms, covenants and conditions of this Agreement for the making of any or all such Advances are satisfied pursuant to this Agreement. Borrower acknowledges and agrees that notwithstanding anything to the contrary, in no event shall Lender make an additional Advance pursuant to Section 2.1(d) after May 31, 2014.
(i) Such Property shall (i) be lawfully zoned, used and occupied as a residential multi-family rental property; (ii) owned in fee by an entity which is wholly owned by Opportunity OP and which entity owns no other assets or is engaged in any other business other than the ownership and operation of such Property and (iii) meet all of Lender’s underwriting and due diligence criteria in the exercise of Lender’s sole discretion, including, without limitation, those pertaining to environmental matters, market criteria, rental rates and physical condition. Borrower acknowledges and agrees that in order to be considered by Lender to be an Eligible Property and added to the Collateral Pool, Borrower shall submit to Lender a submission package including such information as Lender may require, from time to time, including, without limitation, a full description of the Property, a cash flow projection at acquisition and Stabilization, a plan to achieve Stabilization, including the Budget and Project Schedule.
(ii) All of the conditions set forth in Section 2.2(c) above as may pertain to the entity desiring to become a Borrower hereunder and owning the Property or to the Property which is being considered to be added to the Collateral Pool shall be satisfied as determined by Lender.
(iii) All of the documents listed in Section 2.2(d) shall be executed and delivered as they pertain to such new Borrower, Guarantor, Opportunity OP and/or the Property and all of the other requirements and conditions to qualify such Property as an Eligible Property to be added to the Collateral Pool required under or pursuant to this Agreement shall be satisfied, as determined by Lender in the exercise of Lender’s sole discretion.
(f) No Advance shall constitute a waiver of any condition precedent to the agreement of Lender to make any future Advance. All conditions precedent to the obligation of Lender to make any Advance are imposed hereby solely for the benefit of Lender, and no other party may require satisfaction of any such condition precedent or shall be entitled to assume that Lender will make or refuse to make any Advance in the absence of strict compliance with such condition precedent. Lender, in its sole discretion, may waive any requirement of this Agreement for any Advance. Notwithstanding anything to the contrary contained herein, in this Section 2.1the event that Lender has made an Advance and then determines that a condition precedent to such Advance required to be satisfied was, in fact, not satisfied, upon the request of Lender, Borrower agrees to cooperate with Lender and use good faith efforts to satisfy any such requirement to extent such requirement can then be satisfied, provided, however, under no circumstances shall have no obligation Borrower be required to disburse prepay such Advance nor shall such failure to satisfy such requirement constitute an Event of Default unless Borrower ceases to cooperate with Lender or ceases to use good faith efforts to satisfy such requirement.
(g) As a condition to the last $3,750,000 making of any Advance of proceeds of the Unfunded Loan Amount unless Prometheus ES Loan, Guarantor shall have actually received a distribution of cash (which shall not have been merely "deemed" demonstrate to have been made pursuant to the Intown Agreement) constituting the "Class A Preferred Return" (as such term is defined Lender’s satisfaction, in the Intown Agreement) for the second calendar quarter exercise of 2001).Lender’s sole judgment, that Guarantor has, on a consolidated basi
Appears in 2 contracts
Sources: Loan Agreement, Loan Agreement (Resource Real Estate Opportunity REIT, Inc.)
Loan Advances. (a) On the date hereof, the outstanding principal balance of the Original Note, as amended by the First Amendment, is $36,250,000, and the outstanding principal balance of the First Additional Note is $10,000,000. The Lender shall lend to Borrower an additional amount equal make loans to the New Loan Amount, which will be advanced as follows: on the Closing Date or, if later, the date on which Borrower fulfills all conditions precedent (each loan hereinafter referred to funding, Lender will advance to Borrower $38,750,000 (an "Initial Advance") andfrom time to time commencing on the date hereof and shall continue for a period of twenty four (24) months thereafter ending on June 7, at 2015 (the request of “Initial Term”) in such amounts as may be requested by the Borrower made in accordance with and subject to the conditions contained in Section 2.1(b), Lender will advance to Borrower on or before August 1, 2001 in one or more tranches the additional aggregate amount of not more than $25,000,000 ("Unfunded Loan Amount").
(b) Lender's obligation to make advances of all or any portion of the Unfunded Loan Amount following the Initial Advance shall be subject to the conditions that, with respect to each such advance requested:
(i) no Default or Event of Default shall have occurred and be continuing;
(ii) no Material Adverse Condition shall exist with respect to Borrower, the Fund taken as a whole, any other member of the Borrower Control Group or any Operating Company; provided, that, if a Material Adverse Condition exists solely with respect to one or more AACDFK Entities and one or more members of the Borrower Control Group (excluding the Borrower and the Fund), that own, directly or indirectly, an interest in such AACDFK Entities (as long as the Material Adverse Condition affecting the applicable members of the Borrower Control Group is solely caused by or results solely from the Material Adverse Condition of the subject AACDFK Entities), and all of the other conditions to Lender's obligation to make advances of all or any portion of the Unfunded Loan Amount are satisfied, Lender shall be obligated to fund such subsequent advance as long as none of the proceeds of such advance shall be advanced, contributed or otherwise invested, directly or indirectly, in any Entity as to which a Material Adverse Condition exists at the time of such advance;
(iii) Lender shall have received Borrower's written request for each advance not less than 30 nor more than 60 days prior to the requested funding date for such advance, specifying the amount requested, the use of the proceeds attributable to such advance, the new Collateral to be furnished in connection therewith, the Borrower's calculation (with all necessary supporting information) demonstrating the Debt Service Coverage Ratio, and the proposed funding date, and certifying that no Default or Event of Default has occurred and is continuing;
(iv) advances shall not be made more often than once in any rolling 30-day period;
(v) no advance other than the last such advance shall be in an amount less than $5,000,000;
(vi) Lender shall have received payment from Borrower of a fee equal to three quarters of one percent (0.75%) of the amount of such advance;
(vii) in the event that subsequent to the Closing Date (x) any member of the Borrower Control Group shall have acquired any direct or indirect Equity Interest in any Entity, or (y) any member of the Borrower Control Group shall have made any loans to any Entity, or (z) any member of the Borrower Control Group shall have purchased or otherwise acquired any property of any Entity, Lender shall have received a perfected, first priority Lien in such interest, loan and property, as created and evidenced by such instruments (including new pledge agreements, Direction Letters, and amendments, if required by Lender, to the Amended and Restated Deposit Account Agreement) as Lender may request, all in form and substance reasonably satisfactory to Lenderprovisions hereof; provided, however, that the foregoing Outstanding Principal Balance at any time shall not exceed Seven Hundred and Fifty Thousand dollars ($750,000.00). Each Advance will be deemed to constitute evidenced by a consent Note and Security Agreement, in the forms attached hereto as Exhibit A and Exhibit B, respectively. At the end of such Initial Term, this Agreement shall terminate unless extended for one or waiver more additional periods of six (6) months each (each, a “Renewal Term”) by Lender mutual written agreement of the parties.
(b) All requests for Advances shall be made by the Borrower to the extent Lender in writing (in such form as is reasonably satisfactory to the Lender) to include email which specifies the amount of the Advance to be made and the date the proceeds of the Advance are requested to be made available to the Borrower (a "Loan Request"); provided, that such consent is otherwise required by this Agreement or Lender upon receipt of any Loan Document) with respect Request shall have up to any such purchase, acquisition or loan by Borrower or any member of the Borrower Control Group;
(viii) the conditions precedent to funding contained in Section 3.1(a)(3), (4), (5), (6), seven (7) business days in which to transfer such funds to Borrower except the first payment of US$150,000 which shall be made on 7th June 2013 per prior agreement. Advances may not be in any amount less than twenty-five thousand dollars ($25,000.00), . Borrower agrees to provide seven (8), 7) days written notice for any Loan Request below one hundred thousand dollars (9), $100,000.00) and ten (10) and days written notice for any Loan Request that is above one hundred thousand dollars (11) shall have been fulfilled insofar as Lender shall deem them applicable to any subsequent advance; provided, that, (x) the conditions precedent to funding contained in Section 3.1(a)(3$100,000.00), (4), (5), (6), and (7) shall only be applicable with respect to any new Collateral, and (y) the representations and warranties set forth in the last two sentences of Section 4.1(r) hereto shall not be remade with respect to any of the AACDFK Entities; and
(ix) Debt Service Achievement shall be in effect.
(c) Notwithstanding anything in A Loan Request received by the Lender on a day that is not a Business Day or that is received by Lender after 1:00 P.M., EST, on a Business Day shall be treated as having been received by the Lender on the first following Business Day. There may not be more than one Advance made on any one day; provided, however that the Lender may waive this Section 2.1 limitation at its discretion. The Lender shall not incur liability to the contrary, until Borrower for treating any such time request as (i) either a Loan Request if the BT Guaranty Lender believes in good faith that the Person making the request is terminated or the loan made by Bankers Trust Company pursuant to the BT Agreement has been extended on terms satisfactory to Lender in Lender's sole and absolute discretion, and (ii) all obligations of Prometheus ES to make capital contributions to Intown have been satisfied, Lender shall have no obligation to advance any portion an authorized officer of the Unfunded Loan Amount except in accordance with the following: fundings of portions of the Unfunded Loan Amount shall be permitted only to the extent that, after giving effect to such advance and the application by Borrower of the proceeds thereof (as hereinafter required to be applied), the aggregate of the remaining Unfunded Loan Amount plus the balance in the Retained Amount Reserve shall be equal to or greater than the sum of (x) the lesser of $35,500,000 and the maximum principal amount guaranteed under the BT Guaranty, and (y) the amount which Prometheus ES is obligated to contribute to the capital of Intown. To the extent that proceeds of the Unfunded Loan Amount are disbursed for such purposes, Borrower and the applicable member(s) of the Borrower Control Group shall use, directly or indirectly, such proceeds to (A) repay a portion of the loan made by Bankers Trust Company under the BT Agreement in order to terminate or reduce the principal amount of the BT Guaranty or otherwise to induce Bankers Trust Company to extend such loan on terms satisfactory to Lender in Lender's sole and absolute discretion, and (B) subject to Section 2.1(e), fund all or a portion of the obligations of Prometheus ES to contribute capital to IntownBorrowing.
(d) Notwithstanding anything contained herein Advances shall be made by direct wire transfer of funds from the Lender to Borrower’s designated account pursuant to the contrary, prior to disbursement of any other portion of the Unfunded Loan Amount to be advanced at any time, there shall be deposited into the Interest Reserve of the Deposit Account an amount which shall be sufficient to pay all interest, on the portion of the Unfunded Loan Amount as to which Borrower has requested a disbursement, which will become due and payable (i) on each Payment Date following the date of such disbursement and occurring during the Fiscal Quarter wire instructions set forth in which such disbursement is to occur, and (ii) at Lender's discretion, on each of the first and second Payment Dates occurring during the Fiscal Quarter next succeeding the Fiscal Quarter in which such disbursement is to occur, all as estimated in accordance with the provisions of the Amended and Restated Deposit Account Agreement.Exhibit C.
(e) Notwithstanding anything Lender may refuse to the contrary contained in this Section 2.1, Lender shall have no obligation to disburse the last $3,750,000 make any requested Advance if an Event of the Unfunded Loan Amount unless Prometheus ES shall have actually received a distribution of cash (which shall not have been merely "deemed" to have been made pursuant to the Intown Agreement) constituting the "Class A Preferred Return" Default (as defined below) has occurred and is continuing hereunder either at the time the request is given or the date the Advance is to be made, or if an event has occurred or condition exists which, with the giving of notice or passing of time or both, would constitute an Event of Default hereunder as of such term is defined in the Intown Agreement) for the second calendar quarter of 2001)dates.
Appears in 1 contract
Sources: Revolving Line of Credit Agreement (Standard Drilling, Inc.)
Loan Advances. (a) On the date hereof, the outstanding principal balance of the Original Note, as amended by the First Amendment, is $36,250,000, and the outstanding principal balance of the First Additional Note is $10,000,000. The Lender shall lend to Borrower an additional amount equal to the New Loan Amount, which will be advanced as follows: on the Closing Date or, if later, the date on which Borrower fulfills all conditions precedent to funding, Lender will advance to Borrower $38,750,000 ("Initial Advance") and, at the request of the Borrower made in accordance with and subject to the conditions contained in Section 2.1(b), Lender will advance to Borrower on or before August 1, 2001 in one or more tranches the additional aggregate amount of not more than $25,000,000 ("Unfunded Loan Amount").
(b) Lender's obligation agrees to make advances of all or any portion of to the Unfunded Loan Amount following the Initial Advance shall be Borrower from time to time until December 1, 1995, subject to the conditions that, with respect to each such advance requested:
(i) no Default or Event of Default shall have occurred and be continuing;
(ii) no Material Adverse Condition shall exist with respect to Borrower, the Fund taken as a whole, any other member of the Borrower Control Group or any Operating Company; provided, that, if a Material Adverse Condition exists solely with respect to one or more AACDFK Entities and one or more members of the Borrower Control Group (excluding the Borrower and the Fund), that own, directly or indirectly, an interest in such AACDFK Entities (as long as the Material Adverse Condition affecting the applicable members of the Borrower Control Group is solely caused by or results solely from the Material Adverse Condition of the subject AACDFK Entities), and all of the other terms and conditions to Lender's obligation to make of this Agreement. All requests by the Borrower for advances of all or any portion of the Unfunded Loan Amount are satisfied, Lender shall be obligated made in such manner and form and with such prior notice to fund the Lender as the Lender may reasonably require from time to time. Each request for an advance shall be for a minimum amount of $50,000.00. Each such subsequent advance as long as none request shall contain or be accompanied by such information and documents (which shall be Certified if required by the Lender) concerning the Collateral, the Borrower's financial condition, use of the proceeds of such advance and of advances previously made and/or any other matters as the Lender may from time to time require. In no event shall the Lender be advanced, contributed or otherwise invested, directly or indirectly, in obligated to make any Entity as to which a Material Adverse Condition exists at the time of such advance;
(iii) Lender shall have received Borrower's written request for each advance not less than 30 nor more than 60 days prior to the requested funding date for such advance, specifying the amount requested, the use of the proceeds attributable to such advance, the new Collateral to be furnished in connection therewith, the Borrower's calculation (with all necessary supporting information) demonstrating the Debt Service Coverage Ratio, and the proposed funding date, and certifying that no Default or hereunder if an Event of Default has occurred and is continuing;
(iv) advances shall not be made more often than once in any rolling 30-day period;
(v) no advance other than under the last Note or if such advance would cause the total principal amount of advances made and outstanding hereunder to exceed the Maximum Loan Amount. Even if the total principal amount of advances outstanding shall at any time and for any reason exceed the Maximum Loan Amount, the Borrower shall nonetheless be liable for the entire principal amount outstanding, with interest thereon at the rate and calculated in an the manner provided in the Note, in accordance with this Agreement and the Note. If the total principal amount less than $5,000,000;
(vi) of advances outstanding hereunder shall at any time exceed the Maximum Loan Amount, the Borrower shall immediately pay to the Lender shall have received payment from Borrower of a fee equal to three quarters of one percent (0.75%) of upon demand the amount of such advance;
(vii) excess, with interest thereon at the rate and calculated in the event manner provided in the Note. The Borrower agrees that subsequent the Borrower shall be liable for, and the Collateral shall secure, the repayment of each advance made by the Lender to or for the Borrower hereunder, with interest at the rate and calculated in the manner provided in the Note, whether or not such advance was duly requested or authorized by the Borrower and whether or not any person requesting such advance was duly authorized to make such request. Subject to all of the terms and conditions of this Agreement and the other Loan Documents, the Borrower may borrow hereunder until December 1, 1995. Borrower acknowledges and agrees that on December 1, 1995, the Lender shall advance to the Closing Date (x) any member Borrower the balance of the Borrower Control Group shall have acquired any direct or indirect Equity Interest in any EntityLoan, or (y) any member of the Borrower Control Group shall have made any loans to any Entity, or (z) any member of the Borrower Control Group shall have purchased or otherwise acquired any property of any Entity, Lender shall have received a perfected, first priority Lien in should such interest, loan and property, as created and evidenced by such instruments (including new pledge agreements, Direction Letters, and amendments, if required by Lender, to the Amended and Restated Deposit Account Agreement) as Lender may request, all in form and substance reasonably satisfactory to Lender; provided, however, that the foregoing shall not be deemed to constitute a consent or waiver by Lender (to the extent that such consent is otherwise required by this Agreement or any Loan Document) with respect to any such purchase, acquisition or loan by Borrower or any member of the Borrower Control Group;
(viii) the conditions precedent to funding contained in Section 3.1(a)(3), (4), (5), (6), (7), (8), (9), (10) and (11) shall have been fulfilled insofar as Lender shall deem them applicable to any subsequent advance; provided, that, (x) the conditions precedent to funding contained in Section 3.1(a)(3), (4), (5), (6), and (7) shall only be applicable with respect to any new Collateral, and (y) the representations and warranties set forth in the last two sentences of Section 4.1(r) hereto shall not be remade with respect to any of the AACDFK Entities; and
(ix) Debt Service Achievement shall be in effect.
(c) Notwithstanding anything in this Section 2.1 to the contrary, until such time as (i) either the BT Guaranty is terminated or the loan made by Bankers Trust Company pursuant to the BT Agreement has been extended on terms satisfactory to Lender in Lender's sole and absolute discretion, and (ii) all obligations of Prometheus ES to make capital contributions to Intown have been satisfied, Lender shall have no obligation to advance any portion of the Unfunded Loan Amount except in accordance with the following: fundings of portions of the Unfunded Loan Amount shall be permitted only to the extent that, after giving effect to such advance and the application by Borrower of the proceeds thereof (as hereinafter required to be applied), the aggregate of the remaining Unfunded Loan Amount plus the balance in the Retained Amount Reserve shall be equal to or greater than the sum of (x) the lesser of $35,500,000 and the maximum principal amount guaranteed under the BT Guaranty, and (y) the amount which Prometheus ES is obligated to contribute to the capital of Intown. To the extent that proceeds of the Unfunded Loan Amount are disbursed for such purposes, Borrower and the applicable member(s) of the Borrower Control Group shall use, directly or indirectly, such proceeds to (A) repay a portion of the loan made by Bankers Trust Company under the BT Agreement in order to terminate or reduce the principal amount of the BT Guaranty or otherwise to induce Bankers Trust Company to extend such loan on terms satisfactory to Lender in Lender's sole and absolute discretion, and (B) subject to Section 2.1(e), fund all or a portion of the obligations of Prometheus ES to contribute capital to Intown.
(d) Notwithstanding anything contained herein to the contrary, prior to disbursement of any other portion of the Unfunded Loan Amount to be advanced at any time, there shall be deposited into the Interest Reserve of the Deposit Account an amount which shall be sufficient to pay all interest, on the portion of the Unfunded Loan Amount as to which Borrower has requested a disbursement, which will become due and payable (i) on each Payment Date following the date of such disbursement and occurring during the Fiscal Quarter in which such disbursement is to occur, and (ii) at Lender's discretion, on each of the first and second Payment Dates occurring during the Fiscal Quarter next succeeding the Fiscal Quarter in which such disbursement is to occur, all as estimated in accordance with the provisions of the Amended and Restated Deposit Account Agreement.
(e) Notwithstanding anything to the contrary contained in this Section 2.1, Lender shall have no obligation to disburse the last $3,750,000 of the Unfunded Loan Amount unless Prometheus ES shall have actually received a distribution of cash (which shall funds not have been merely "deemed" to have been made pursuant to previously advanced by the Intown Agreement) constituting the "Class A Preferred Return" (as such term is defined in the Intown Agreement) for the second calendar quarter of 2001)Lender.
Appears in 1 contract
Loan Advances. (a) On Borrower shall receive, on the date hereof, one borrowing hereunder with respect to the outstanding principal balance Note in the amount shown on ▇▇▇▇▇▇’s settlement statement prepared in connection with the closing of the Original Note, as amended by the First Amendment, is $36,250,000, and the outstanding principal balance of the First Additional Note is $10,000,000. Lender shall lend to Borrower an additional amount equal to the New Loan Amount, which will be advanced as follows: on the Closing Date or, if later, the date on which Borrower fulfills all conditions precedent to funding, Lender will advance to Borrower $38,750,000 ("Initial Advance") and, at the request of the Borrower made in accordance with and subject to the conditions contained in Section 2.1(b), Lender will advance to Borrower on or before August 1, 2001 in one or more tranches the additional aggregate amount of not more than $25,000,000 ("Unfunded Loan Amount")Loan.
(b) Lender's obligation Upon the earlier to make advances occur of all or any portion (x) the date on which the balance of the Unfunded Shortfall Reserve Account is drawn below $500,000.00 for the first (1st) time during the term of the Mortgage Loan Amount following and (y) the Initial applicable Additional Advance shall be subject to the conditions thatEnd Date, with respect to each such advance requested:
provided that (iA) no Default or Event of Default then exists, and (B) the Shortfall Reserve Account Release Date has not yet occurred, Lender shall have occurred fund one (1) additional advance of the Loan (which advance shall be treated as a contribution by Borrower to Mortgage Borrower and Borrower hereby directs Lender to deposit such advance into the Shortfall Reserve Account held by Mortgage Lender) in an amount equal to $4,250,000.00 (the “Shortfall Additional Advance”), subject to the satisfaction of the following terms and conditions:
(i) no more than one (1) Shortfall Additional Advance shall be continuingpermitted hereunder;
(ii) no Material Adverse Condition Borrower shall exist with respect have obtained evidence as may be required by ▇▇▇▇▇▇, including an updated title report, showing title to the Property to be vested in Mortgage Borrower, the Fund taken as a whole, any other member with no subordinate items and with no exceptions to title of the Property other than Permitted Encumbrances (with affirmative insurance that no Taxes are delinquent, no mechanic’s or supplier’s liens have attached (or if inchoate mechanic’s or supplier’s liens have, that they are subordinate to the lien of the Security Instrument));
(iii) no Casualty or Condemnation shall have occurred;
(iv) Borrower Control Group or any Operating Companyshall have paid to Lender a draw fee of $750 and reimbursed all of Lender’s outstanding fees and expenses relating to the Shortfall Additional Advance, the Loan and/or the Mortgage Loan; provided, and
(v) in no event shall the amount of the Shortfall Additional Advance be greater than the lesser of (x) the Maximum Shortfall Additional Advance Amount and (y) the amount that, together with all previous Additional Advances, equals the Maximum Additional Advance Amount. For the avoidance of doubt, if a Material Adverse Condition exists solely the Shortfall Additional Advance has not been fully disbursed to Borrower in accordance with respect this Agreement by the earlier to one or more AACDFK Entities occur of (I) the Shortfall Reserve Account Release Date and one or more members of the Borrower Control Group (excluding the Borrower and the Fund), that own, directly or indirectly, an interest in such AACDFK Entities (as long as the Material Adverse Condition affecting II) the applicable members of the Borrower Control Group is solely caused by or results solely from the Material Adverse Condition of the subject AACDFK Entities)Additional Advance End Date, and all of the other conditions then Lender’s commitment to Lender's obligation to make advances of fund all or any portion of the Unfunded Loan Amount are satisfied, Shortfall Additional Advance shall immediately terminate and Lender shall be obligated thereafter have no further obligation to fund such subsequent advance as long as none of the proceeds of such advance shall be advanced, contributed or otherwise invested, directly or indirectly, in make any Entity as to which a Material Adverse Condition exists at the time of such advance;Shortfall Additional Advance under this Agreement.
(iiic) Lender shall have received Borrower's written request for each advance not less than 30 nor more than 60 days prior to the requested funding date for such advance, specifying the amount requested, the use of the proceeds attributable to such advance, the new Collateral to be furnished in connection therewith, the Borrower's calculation (with all necessary supporting information) demonstrating the Debt Service Coverage Ratio, and the proposed funding date, and certifying that Provided no Default or Event of Default has occurred and is continuing;
then exists, ▇▇▇▇▇▇ agrees to fund one (iv1) advances shall not be made more often than once in any rolling 30-day period;
(v) no additional advance other than the last such advance shall be in an amount less than $5,000,000;
(vi) Lender shall have received payment from Borrower of a fee equal to three quarters of one percent (0.75%) of the amount of such advance;
Loan directly to Borrower (vii) in the event that subsequent “Unabated Tax Earn-Out Additional Advance”), subject to the Closing Date (x) any member satisfaction of the Borrower Control Group shall have acquired any direct or indirect Equity Interest in any Entity, or (y) any member of the Borrower Control Group shall have made any loans to any Entity, or (z) any member of the Borrower Control Group shall have purchased or otherwise acquired any property of any Entity, Lender shall have received a perfected, first priority Lien in such interest, loan following terms and property, as created and evidenced by such instruments (including new pledge agreements, Direction Letters, and amendments, if required by Lender, to the Amended and Restated Deposit Account Agreement) as Lender may request, all in form and substance reasonably satisfactory to Lender; provided, however, that the foregoing shall not be deemed to constitute a consent or waiver by Lender (to the extent that such consent is otherwise required by this Agreement or any Loan Document) with respect to any such purchase, acquisition or loan by Borrower or any member of the Borrower Control Group;
(viii) the conditions precedent to funding contained in Section 3.1(a)(3), (4), (5), (6), (7), (8), (9), (10) and (11) shall have been fulfilled insofar as Lender shall deem them applicable to any subsequent advance; provided, that, (x) the conditions precedent to funding contained in Section 3.1(a)(3), (4), (5), (6), and (7) shall only be applicable with respect to any new Collateral, and (y) the representations and warranties set forth in the last two sentences of Section 4.1(r) hereto shall not be remade with respect to any of the AACDFK Entities; and
(ix) Debt Service Achievement shall be in effect.
(c) Notwithstanding anything in this Section 2.1 to the contrary, until such time as (i) either the BT Guaranty is terminated or the loan made by Bankers Trust Company pursuant to the BT Agreement has been extended on terms satisfactory to Lender in Lender's sole and absolute discretion, and (ii) all obligations of Prometheus ES to make capital contributions to Intown have been satisfied, Lender shall have no obligation to advance any portion of the Unfunded Loan Amount except in accordance with the following: fundings of portions of the Unfunded Loan Amount shall be permitted only to the extent that, after giving effect to such advance and the application by Borrower of the proceeds thereof (as hereinafter required to be applied), the aggregate of the remaining Unfunded Loan Amount plus the balance in the Retained Amount Reserve shall be equal to or greater than the sum of (x) the lesser of $35,500,000 and the maximum principal amount guaranteed under the BT Guaranty, and (y) the amount which Prometheus ES is obligated to contribute to the capital of Intown. To the extent that proceeds of the Unfunded Loan Amount are disbursed for such purposes, Borrower and the applicable member(s) of the Borrower Control Group shall use, directly or indirectly, such proceeds to (A) repay a portion of the loan made by Bankers Trust Company under the BT Agreement in order to terminate or reduce the principal amount of the BT Guaranty or otherwise to induce Bankers Trust Company to extend such loan on terms satisfactory to Lender in Lender's sole and absolute discretion, and (B) subject to Section 2.1(e), fund all or a portion of the obligations of Prometheus ES to contribute capital to Intown.
(d) Notwithstanding anything contained herein to the contrary, prior to disbursement of any other portion of the Unfunded Loan Amount to be advanced at any time, there shall be deposited into the Interest Reserve of the Deposit Account an amount which shall be sufficient to pay all interest, on the portion of the Unfunded Loan Amount as to which Borrower has requested a disbursement, which will become due and payable (i) on each Payment Date following the date of such disbursement and occurring during the Fiscal Quarter in which such disbursement is to occur, and (ii) at Lender's discretion, on each of the first and second Payment Dates occurring during the Fiscal Quarter next succeeding the Fiscal Quarter in which such disbursement is to occur, all as estimated in accordance with the provisions of the Amended and Restated Deposit Account Agreement.
(e) Notwithstanding anything to the contrary contained in this Section 2.1, Lender shall have no obligation to disburse the last $3,750,000 of the Unfunded Loan Amount unless Prometheus ES shall have actually received a distribution of cash (which shall not have been merely "deemed" to have been made pursuant to the Intown Agreement) constituting the "Class A Preferred Return" (as such term is defined in the Intown Agreement) for the second calendar quarter of 2001).conditions:
Appears in 1 contract
Sources: Mezzanine Loan and Security Agreement (Clipper Realty Inc.)
Loan Advances. The proceeds of the Loan shall be disbursed as follows:
(a) On The Loan Opening shall be made at such time as all of the conditions and requirements of this Agreement required to be performed by Borrower or other parties prior to the Loan Opening have been satisfied or performed.
(b) if any Loan proceeds are disbursed by Lender into an escrow, including the Construction Escrow, such proceeds shall be considered to be disbursed to Borrower from the date hereofof deposit into escrow, and interest shall accrue on such proceeds from such date.
(c) Borrower shall pay, and hereby requests and authorizes Lender, in the outstanding principal balance event of a Default in the payment thereof by Borrower, to make direct advances for payment and reimbursement of, all interest, charges, costs and expenses incurred by Lender in connection with the Loan, including without limitation: (i) all interest due on the Loan; (ii) all title examination, survey, escrow, filing, search and recording fees and charges; (iii) all fees and disbursements of architects, engineers and appraisers engaged by Lender; (iv) all documentary stamp and other taxes and charges imposed by law on the issuance or recording of any of the Original NoteLoan Documents; (v) all title, as amended casualty; liability, performance or other insurance or bond premiums; (vi) all reasonable fees and disbursements of Lender's Counsel; and (vii) any amounts required to be paid by the First Amendment, is $36,250,000, and the outstanding principal balance Borrower under this Agreement or any of the First Additional Note is $10,000,000. Lender shall lend other Loan Documents after the occurrence of a Default (all of which indicated in this Section 2.6(c) are herein collectively referred to Borrower an additional amount equal to as the New "Loan Amount, which will be advanced as follows: on the Closing Date or, if later, the date on which Borrower fulfills all conditions precedent to funding, Lender will advance to Borrower $38,750,000 ("Initial Advance") and, at the request of the Borrower made in accordance with and subject to the conditions contained in Section 2.1(b), Lender will advance to Borrower on or before August 1, 2001 in one or more tranches the additional aggregate amount of not more than $25,000,000 ("Unfunded Loan AmountExpenses").
(bd) Lender's obligation to make advances of all or any portion of the Unfunded Any Loan Amount following the Initial Advance shall be subject to the conditions that, with respect to each such advance requested:
(i) no Default or Event made for payment of Default shall have occurred and be continuing;
(ii) no Material Adverse Condition shall exist with respect to Borrower, the Fund taken as a whole, any other member specified cost of the Borrower Control Group or any Operating Company; provided, that, if a Material Adverse Condition exists solely with respect to one or more AACDFK Entities and one or more members of the Borrower Control Group (excluding the Borrower and the Fund), that own, directly or indirectly, an interest in such AACDFK Entities (as long as the Material Adverse Condition affecting the applicable members of the Borrower Control Group is solely caused by or results solely from the Material Adverse Condition of the subject AACDFK Entities), and all of the other conditions to Lender's obligation to make advances of all or any portion of the Unfunded Loan Amount are satisfied, Lender shall be obligated to fund such subsequent advance as long as none of the proceeds of such advance shall be advanced, contributed or otherwise invested, directly or indirectly, in any Entity as to which a Material Adverse Condition exists at the time of such advance;
(iii) Lender shall have received Borrower's written request for each advance not less than 30 nor more than 60 days prior to the requested funding date for such advance, specifying the amount requested, the use of the proceeds attributable to such advance, the new Collateral to be furnished in connection therewith, the Borrower's calculation (with all necessary supporting information) demonstrating the Debt Service Coverage Ratio, and the proposed funding date, and certifying that no Default or Event of Default has occurred and is continuing;
(iv) advances shall not be made more often than once in any rolling 30-day period;
(v) no advance other than the last such advance shall be in an amount less than $5,000,000;
(vi) Lender shall have received payment from Borrower of a fee equal to three quarters of one percent (0.75%) of the amount of such advance;
(vii) in the event that subsequent to the Closing Date (x) any member of the Borrower Control Group shall have acquired any direct or indirect Equity Interest in any Entity, or (y) any member of the Borrower Control Group shall have made any loans to any Entity, or (z) any member of the Borrower Control Group shall have purchased or otherwise acquired any property of any Entity, Lender shall have received a perfected, first priority Lien in such interest, loan and property, as created and evidenced by such instruments (including new pledge agreements, Direction Letters, and amendments, if required by Lender, to the Amended and Restated Deposit Account Agreement) as Lender may request, all in form and substance reasonably satisfactory to Lender; provided, however, that the foregoing shall not be deemed to constitute a consent or waiver by Lender (to the extent that such consent is otherwise required by this Agreement or any Loan Document) with respect to any such purchase, acquisition or loan by Borrower or any member of the Borrower Control Group;
(viii) the conditions precedent to funding contained in Section 3.1(a)(3), (4), (5), (6), (7), (8), (9), (10) and (11) shall have been fulfilled insofar as Lender shall deem them applicable to any subsequent advance; provided, that, (x) the conditions precedent to funding contained in Section 3.1(a)(3), (4), (5), (6), and (7) shall only be applicable with respect to any new Collateral, and (y) the representations and warranties set forth in the last two sentences of Section 4.1(r) hereto shall not be remade with respect to any of the AACDFK Entities; and
(ix) Debt Service Achievement shall be in effect.
(c) Notwithstanding anything in this Section 2.1 to the contrary, until such time as (i) either the BT Guaranty is terminated or the loan made by Bankers Trust Company pursuant to the BT Agreement has been extended on terms satisfactory to Lender in Lender's sole and absolute discretion, and (ii) all obligations of Prometheus ES to make capital contributions to Intown have been satisfied, Lender shall have no obligation to advance any portion of the Unfunded Loan Amount except Project in accordance with the following: fundings of portions Approved Budget. No amendment of the Unfunded Loan Amount Approved Budget shall be permitted only to made without Lender's prior written consent, which consent shall not be unreasonably withheld or delayed. No reallocation of line items within the extent that, after giving effect to such advance and the application by Borrower of the proceeds thereof (as hereinafter required to be applied), the aggregate of the remaining Unfunded Loan Amount plus the balance in the Retained Amount Reserve Approved Budget shall be equal to or greater than the sum of (x) the lesser of $35,500,000 and the maximum principal amount guaranteed under the BT Guaranty, and (y) the amount which Prometheus ES is obligated to contribute to the capital of Intown. To the extent that proceeds of the Unfunded Loan Amount are disbursed for such purposes, Borrower and the applicable member(s) of the Borrower Control Group shall use, directly or indirectly, such proceeds to (A) repay a portion of the loan made by Bankers Trust Company under the BT Agreement in order to terminate or reduce the principal amount of the BT Guaranty or otherwise to induce Bankers Trust Company to extend such loan on terms satisfactory to Lender in without Lender's sole and absolute discretion, and (B) subject to Section 2.1(e), fund all or a portion of the obligations of Prometheus ES to contribute capital to Intown.
(d) Notwithstanding anything contained herein to the contrary, prior to disbursement of any other portion of the Unfunded Loan Amount to be advanced at any time, there shall be deposited into the Interest Reserve of the Deposit Account an amount which shall be sufficient to pay all interest, on the portion of the Unfunded Loan Amount as to which Borrower has requested a disbursementwritten consent, which will become due and payable (i) on each Payment Date following the date of such disbursement and occurring during the Fiscal Quarter in which such disbursement is to occur, and (ii) at Lender's discretion, on each of the first and second Payment Dates occurring during the Fiscal Quarter next succeeding the Fiscal Quarter in which such disbursement is to occur, all as estimated in accordance with the provisions of the Amended and Restated Deposit Account Agreement.
(e) Notwithstanding anything to the contrary contained in this Section 2.1, Lender shall have no obligation to disburse the last $3,750,000 of the Unfunded Loan Amount unless Prometheus ES shall have actually received a distribution of cash (which consent shall not have been merely "deemed" to have been made pursuant to the Intown Agreement) constituting the "Class A Preferred Return" (as such term is defined in the Intown Agreement) for the second calendar quarter of 2001)be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Loan Agreement (United Homes Inc)
Loan Advances. (a) On Subject to the date hereofprovisions of this Agreement, and also subject to the terms and conditions of the other Loan Documents, the outstanding principal balance of the Original Note, as amended by the First Amendment, is $36,250,000, Lender shall make and the outstanding principal balance of Borrower shall accept the First Additional Note is $10,000,000. Lender shall lend to Borrower an additional amount equal to Loan in periodic Advances not exceeding, in the New aggregate, the Loan Amount. The first Advance, which will to be advanced made upon the Loan Closing, or at such time thereafter as follows: on the Closing Date or, if later, the date on which Borrower fulfills Lender has determined that all conditions precedent to funding, Lender will advance to Borrower $38,750,000 ("Initial Advance") and, at the request of the Borrower made in accordance with and subject to the conditions contained in Section 2.1(b), Lender will advance to Borrower on or before August 1, 2001 in one or more tranches the additional aggregate amount of not more than $25,000,000 ("Unfunded Loan Amount").
(b) Lender's obligation to make advances of all or any portion of the Unfunded Loan Amount following the Initial first Advance shall be subject to the conditions that, with respect to each such advance requested:
(i) no Default or Event of Default shall have occurred and be continuing;
(ii) no Material Adverse Condition shall exist with respect to Borrower, the Fund taken as a whole, any other member of the Borrower Control Group or any Operating Company; provided, that, if a Material Adverse Condition exists solely with respect to one or more AACDFK Entities and one or more members of the Borrower Control Group (excluding the Borrower and the Fund), that own, directly or indirectly, an interest in such AACDFK Entities (as long as the Material Adverse Condition affecting the applicable members of the Borrower Control Group is solely caused by or results solely from the Material Adverse Condition of the subject AACDFK Entities), and all of the other conditions to Lender's obligation to make advances of all or any portion of the Unfunded Loan Amount are been satisfied, Lender shall be obligated to fund such subsequent advance as long as none of the proceeds of such advance shall be advanced, contributed or otherwise invested, directly or indirectly, in any Entity as to which a Material Adverse Condition exists at the time of such advance;
(iii) Lender shall have received Borrower's written request for each advance not less than 30 nor more than 60 days prior to the requested funding date for such advance, specifying the amount requested, the use of the proceeds attributable to such advance, the new Collateral to be furnished in connection therewith, the Borrower's calculation (with all necessary supporting information) demonstrating the Debt Service Coverage Ratio, and the proposed funding date, and certifying that no Default or Event of Default has occurred and is continuing;
(iv) advances shall not be made more often than once in any rolling 30-day period;
(v) no advance other than the last such advance shall be in an amount less than $5,000,000;
(vi) Lender shall have received payment from Borrower of a fee equal to three quarters (i)95% of one percent (0.75%) Project Hard Costs and 100 % of the amount of such advance;
(vii) in the event that subsequent to the Closing Date (x) any member of the Borrower Control Group shall have acquired any direct or indirect Equity Interest in any Entity, or (y) any member of the Borrower Control Group shall have made any loans to any Entity, or (z) any member of the Borrower Control Group shall have purchased or otherwise acquired any property of any Entity, Lender shall have received a perfected, first priority Lien in such interest, loan and propertySoft Costs, as created and evidenced by such instruments (including new pledge agreements, Direction Letters, and amendments, if required approved by Lender, to the Amended (ii) such other costs and Restated Deposit Account Agreement) expenses of Loan Closing, as Lender may request, all in form and substance reasonably satisfactory to Lender; provided, however, that the foregoing shall not be deemed to constitute a consent or waiver approved by Lender (to the extent that such consent is otherwise required by this Agreement or any Loan Document) with respect to any such purchase, acquisition or loan by Borrower or any member of the Borrower Control Group;
(viii) the conditions precedent to funding contained in Section 3.1(a)(3), (4), (5), (6), (7), (8), (9), (10) and (11) shall have been fulfilled insofar as Lender shall deem them applicable to any subsequent advance; provided, that, (x) the conditions precedent to funding contained in Section 3.1(a)(3), (4), (5), (6), and (7) shall only be applicable with respect to any new Collateral, and (y) the representations and warranties set forth in the last two sentences of Section 4.1(r) hereto shall not be remade with respect to any of the AACDFK Entities; and
(ix) Debt Service Achievement shall be in effect.
(c) Notwithstanding anything in this Section 2.1 to the contrary, until such time as (i) either the BT Guaranty is terminated or the loan made by Bankers Trust Company pursuant to the BT Agreement has been extended on terms satisfactory to Lender in Lender's its sole and absolute discretion, and (iii) such other costs and expenses in accordance with Section 6.1(b) below (the "Initial Advance"). All Advances following the Initial Advance are hereinafter called "Construction Advances."
(b) Borrower hereby requests and authorizes Lender to make Advances directly to itself for payment and reimbursement of all interest, charges, costs and expenses incurred by Lender in connection with the Loan, pursuant to this Agreement or other Loan Documents, including, but not limited to, (i) interest due on the Loan and any points, loan fees, service charges, commitment fees, or other fees due to Lender in connection with the Loan; (ii) all obligations title examination, survey, escrow, filing, search, recording and registration fees and charges; (iii) all documentary stamp and other taxes and charges imposed by law on the issuance or recording of Prometheus ES to make capital contributions to Intown have been satisfied, Lender shall have no obligation to advance any portion of the Unfunded Loan Amount except Documents; (iv) all appraisal fees; (v) all title, casualty, liability, payment, performance or other insurance or bond premiums; (vi) all fees and disbursements for legal services including, without limitation, in-house attorney's costs and fees, and outside counsel engaged in connection with the preparation, negotiation, enforcement or administration of this Agreement or any of the Loan Documents; and (vii) any amounts required to be paid by Borrower under this Agreement, the Mortgage or any Loan Document after the occurrence of a Default (all of which are herein referred to as "Loan Expenses").
(c) No Advance of Loan Proceeds shall be made at any time that the Loan is not "In Balance" as provided in Section 6.13 of this Agreement. Any Advance of Loan Proceeds must be made for payment of a specified cost of the Project in strict accordance with the following: fundings of portions Project Budget. No amendment of the Unfunded Loan Amount Project Budget shall be permitted only made without Lender's prior written consent. No reallocation of line items within the Project Budget shall be made unless Borrower can demonstrate to Lender's satisfaction that (i) sufficient funds remain in the extent that, after giving effect to such advance and line item from which the application by Borrower of the proceeds thereof (as hereinafter required amount is to be applied), the aggregate of the remaining Unfunded Loan Amount plus the balance reallocated to pay all Project Costs that may be paid from that line item; (ii) no line items in the Retained Amount Reserve shall be equal to or greater Project Budget (other than the sum of (xline item to which the reallocation is sought) the lesser of $35,500,000 and the maximum principal amount guaranteed under the BT Guarantyare required, and (y) the amount which Prometheus ES is obligated to contribute to the capital of Intown. To the extent that proceeds of the Unfunded Loan Amount are disbursed for such purposes, Borrower and the applicable member(s) of the Borrower Control Group shall use, directly or indirectly, such proceeds to (A) repay a portion of the loan made by Bankers Trust Company under the BT Agreement in order to terminate or reduce the principal amount of the BT Guaranty or otherwise to induce Bankers Trust Company to extend such loan on terms satisfactory to Lender in Lender's sole and absolute discretionjudgment, to be increased; and (Biii) subject Borrower shall present paid receipts or other proof of payment prior to Section 2.1(e), fund all or a portion of the obligations of Prometheus ES to contribute capital to Intownsubsequent Advances.
(d) Notwithstanding anything contained herein to Except for the contraryInitial Advance, prior to disbursement of any other portion of the Unfunded Loan Amount to be advanced at any time, there shall be deposited into the Interest Reserve of the Deposit Account an amount which shall be sufficient to pay made at the Loan Opening, Lender shall make each Advance within five (5) business days following receipt of all interest, on information required by Lender for the portion of the Unfunded Loan Amount as to which Borrower has requested a disbursement, which will become due and payable (i) on each Payment Date following the date funding of such disbursement and occurring during the Fiscal Quarter in which such disbursement is to occur, and (ii) at Lender's discretion, on each of the first and second Payment Dates occurring during the Fiscal Quarter next succeeding the Fiscal Quarter in which such disbursement is to occur, all as estimated in accordance with the provisions of the Amended and Restated Deposit Account AgreementAdvance.
(e) Notwithstanding anything The following shall be conditions precedent to the contrary contained in this Section 2.1, first Advance of Loan Proceeds. The Lender shall have no obligation not be required to disburse Advance any Loan Proceeds until the last $3,750,000 following conditions are satisfied, at the exercise of the Unfunded Loan Amount unless Prometheus ES shall have actually received a distribution Borrower, in the sole discretion of cash the Lender and Lender's counsel as to form, content and execution:
(i) Receipt and review by the Lender of the appraisal for the Project which shall not have been merely "deemed" must be satisfactory to have been made the Lender in all respects.
(ii) Receipt and review by Lender of any other documents and information requested by the Lender in accordance with the Commitment.
(iii) Deposit by Guarantor of $1,803,360 into an interest bearing account pursuant to the Intown Agreementterms and conditions of the Pledge Agreement made December 21, 2001 by and between the Guarantor and Lender.
(iv) constituting the "Class A Preferred Return" (as such term is defined in the Intown Agreement) for the second calendar quarter of 2001)Construction budget and hard and soft costs.
Appears in 1 contract
Loan Advances. (a) On Subject to and upon the date hereofterms and conditions of this Agreement, during the Revolving Loan Period, Bank agrees to make one or more Loan Advances to Borrower for Approved Purposes in an aggregate principal amount at any one time outstanding up to but not exceeding the Maximum Loan Amount. Within the limit of the Maximum Loan Amount in effect from time to time, during the Revolving Loan Period, Borrower may borrow, repay, and reborrow at any time and from time to time from the Effective Date to the earlier of (1) the expiration of the Revolving Loan Period, or (2) the Termination Date. If, by virtue of payments made on the Loan during the Revolving Loan Period, the principal amount owed on the Loan prior to the Termination Date reaches zero at any point, Borrower agrees that all of the Collateral and all of the Loan Documents shall remain in full force and effect to secure any Loan Advances made thereafter and the Obligations, and Bank shall be fully entitled to rely on all of the Collateral and all of the Loan Documents unless an appropriate release of all or any part of the Collateral or all or any part of the Loan Documents has been executed by Bank. The Loan may not exceed the Maximum Loan Amount at any time. Borrower acknowledges and agrees that the Maximum Loan Amount is calculated in conjunction with the Maximum Purchase Amount under the Mortgage Warehouse Agreement such that in no event shall the aggregate of the outstanding principal balance of the Original Note, as amended by the First Amendment, is $36,250,000, Loan hereunder and the outstanding principal balance Purchase Price of the First Additional Note is $10,000,000Purchased Mortgage Loans exceed [***] at any time. Lender shall lend to Borrower an additional amount equal to Upon the New Loan Amount, which will be advanced as follows: on the Closing Date or, if later, the date on which Borrower fulfills all conditions precedent to funding, Lender will advance to Borrower $38,750,000 ("Initial Advance") and, at the request expiration of the Borrower made in accordance with and subject to the conditions contained in Section 2.1(b), Lender will advance to Borrower on or before August 1, 2001 in one or more tranches the additional aggregate amount of not more than $25,000,000 ("Unfunded Revolving Loan Amount").
(b) Lender's obligation to make advances of all or any portion of the Unfunded Loan Amount following the Initial Advance shall be subject to the conditions that, with respect to each such advance requested:
(i) no Default or Event of Default shall have occurred and be continuing;
(ii) no Material Adverse Condition shall exist with respect to Borrower, the Fund taken as a whole, any other member of the Borrower Control Group or any Operating Company; provided, that, if a Material Adverse Condition exists solely with respect to one or more AACDFK Entities and one or more members of the Borrower Control Group (excluding the Borrower and the Fund), that own, directly or indirectly, an interest in such AACDFK Entities (as long as the Material Adverse Condition affecting the applicable members of the Borrower Control Group is solely caused by or results solely from the Material Adverse Condition of the subject AACDFK Entities)Period, and all of the other conditions to Lender's obligation to make advances of all or any portion of the Unfunded Loan Amount are satisfied, Lender shall be obligated to fund such subsequent advance as long as none of the proceeds of such advance shall be advanced, contributed or otherwise invested, directly or indirectly, in any Entity as to which a Material Adverse Condition exists at the time of such advance;
(iii) Lender shall have received Borrower's written request for each advance not less than 30 nor more than 60 days prior to the requested funding date for such advance, specifying the amount requested, the use of the proceeds attributable to such advance, the new Collateral to be furnished in connection therewith, the Borrower's calculation (with all necessary supporting information) demonstrating the Debt Service Coverage Ratio, and the proposed funding date, and certifying provided that no Default or Event of Default has occurred and is continuing;, the Loan shall, without any further action by Bank or Borrower, convert to a term loan (the “Term Loan”) in accordance with the terms hereof. Borrower shall initiate each Loan Advance by submitting to Bank a written Advance Request at least [***] prior to the proposed Advance Date. Bank shall have no liability to Borrower for any loss or damage suffered by Borrower as a result of Bank’s honoring of any requests, execution of any instructions, authorizations or agreements or reliance on any reports communicated to it telephonically, by facsimile or electronically, and purporting to have been sent to Bank by Borrower and Bank shall have no duty to verify the origin of any such communication or the identity or authority of the Person sending it. Subject to the terms and conditions of this Agreement, each Loan Advance shall be made available to Borrower by depositing the same, in immediately available funds, in an account of Borrower designated by Borrower maintained with Bank. If Bank agrees to make the subject Loan Advance, then no later than the Advance Date Bank shall reflect on its computer system the Loan Advance (the “Confirmation”). In the event Borrower disagrees with any terms of the Confirmation, Borrower shall immediately notify Bank of such disagreement. An objection by Borrower must state specifically that it is an objection, must specify the provision(s) being objected to by Borrower, must set forth such provision(s) in the manner that Borrower believes they should be stated, and must be received by Bank no more than one (1) Business Day after the Confirmation was received by Borrower.
(ivb) advances Any Confirmation by Bank shall be deemed received by Borrower on the date the Confirmation is posted on Bank’s computer system.
(c) Except as set forth in Section 3(a), each Confirmation, together with this Agreement, shall constitute conclusive evidence of the terms agreed between Bank and Borrower with respect to the Loan Advance to which the Confirmation relates, and Borrower’s acceptance of the related proceeds shall constitute Borrower’s agreement to the terms of such Confirmation. It is the intention of the parties that each Confirmation shall not be separate from this Agreement but shall be made more often than once a part of this Agreement.
(d) In no event shall Bank fund any Loan Advance when any Default or Event of Default has occurred and is continuing.
(e) The Loan shall be evidenced by, be repayable, and accrue interest in accordance with, this Agreement. The unpaid principal balance of the Loan shall be repaid as provided herein. Borrower agrees that Bank is authorized to record (1) the date and amount of each Loan Advance made by Bank pursuant hereto and (2) the date and amount of each payment of principal of each Loan Advance, in the books and records of Bank in such manner as is reasonable and customary for Bank, and that a certificate of an officer of Bank, setting forth in reasonable detail the information so recorded, shall constitute prima facie evidence of the accuracy of the information so recorded, absent manifest error; provided that the failure to make any such recording shall not in any rolling 30-day period;way affect the Obligations of Borrower or the rights of Bank hereunder. Subject to the terms and conditions in this Agreement and the other Loan Documents, Borrower may borrow, repay, and reborrow hereunder during the Revolving Loan Period. Bank may in its sole discretion request that the Loan be evidenced by a promissory note. In such event, Borrower shall prepare, execute and deliver to Bank a promissory note payable to the order of Bank (or, if requested by Bank, to Bank and its registered assigns) in a form reasonably acceptable to Borrower and Bank. Thereafter, the Loan and interest thereon shall at all times (including after assignment pursuant to Section 11(a)) be represented by one or more promissory notes in such form payable to the order of the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).
(vf) no advance other than During the last such advance shall be in an amount less than $5,000,000;
(vi) Lender shall have received payment from Borrower of a fee equal to three quarters of one percent (0.75%) of Revolving Loan Period, accrued and unpaid interest at the amount of such advance;
(vii) in the event that subsequent to the Closing Date (x) any member of the Borrower Control Group shall have acquired any direct or indirect Equity Interest in any Entity, or (y) any member of the Borrower Control Group shall have made any loans to any Entity, or (z) any member of the Borrower Control Group shall have purchased or otherwise acquired any property of any Entity, Lender shall have received a perfected, first priority Lien in such interest, loan and property, as created and evidenced by such instruments (including new pledge agreements, Direction Letters, and amendments, if required by LenderRate or, to the Amended extent applicable, the Default Rate, shall be payable monthly in arrears on the Facility Payment Date commencing on August 1, 2017; and
(g) Borrower shall make monthly payments of principal and Restated Deposit Account Agreement) as Lender may requestinterest during the Term Loan Period, commencing on Facility Payment Date succeeding the month in which the Conversion Date occurs and continuing on the Facility Payment Date of each month thereafter until the last day of the Term Loan Period. Each payment shall equal [***] of the principal balance on the Conversion Date plus all accrued and unpaid interest on the outstanding principal balance calculated by Bank in accordance with the terms hereof. On the last Business Day of the Term Loan Period, all remaining principal and accrued and unpaid interest shall be paid in form and substance reasonably satisfactory to Lenderfull. During the Term Loan Period, Borrower may make prepayments at any time; provided, however, that the foregoing shall not be deemed to constitute a consent or waiver by Lender (to the extent that such consent is otherwise required by this Agreement or any Loan Document) with respect to notwithstanding any such purchaseprepayment, acquisition or loan by Borrower or any member of the Borrower Control Group;
(viii) the conditions precedent to funding contained in Section 3.1(a)(3), (4), (5), (6), (7), (8), (9), (10) and (11) shall have been fulfilled insofar as Lender shall deem them applicable to any subsequent advance; provided, that, (x) the conditions precedent to funding contained in Section 3.1(a)(3), (4), (5), (6), and (7) shall only there will be applicable with respect to any new Collateral, and (y) the representations and warranties set forth no change in the last two sentences due date or amount of Section 4.1(r) hereto shall not be remade with respect to any of the AACDFK Entities; and
(ix) Debt Service Achievement shall be scheduled payments due hereunder unless Bank, in effect.
(c) Notwithstanding anything in this Section 2.1 to the contrary, until such time as (i) either the BT Guaranty is terminated or the loan made by Bankers Trust Company pursuant to the BT Agreement has been extended on terms satisfactory to Lender in Lender's its sole and absolute discretion, agrees in writing to such change
(h) If at any time the aggregate outstanding principal balance of the Loan exceeds the Borrowing Base in effect at such time, as determined by Bank (such excess, a “Borrowing Base Deficiency”), then Bank may by notice to Borrower require Borrower to transfer to Bank cash in an amount at least equal to the Borrowing Base Deficiency (such requirement, a “Margin Call”). Notice delivered pursuant to this Section 3(h) may be given by any written or electronic means. Any notice given before 5:00 p.m. (Eastern time) on a Business Day shall be met, and (ii) all obligations of Prometheus ES to make capital contributions to Intown have been the related Margin Call satisfied, Lender no later than 5:00 p.m. (Eastern time) on the next Business Day following such notice. The failure of Bank, on any one or more occasions, to exercise its rights hereunder, shall have no obligation not change or alter the terms and conditions to advance which this Agreement is subject or limit the right of Bank to do so at a later date. Borrower and Bank each agree that a failure or delay by Bank to exercise its rights hereunder shall not limit or waive Bank’s rights under this Agreement or otherwise existing by law or in any portion way create additional rights for Borrower. Bank may in its sole discretion accept the pledge of additional Collateral rather than cash to satisfy any Margin Calls.
(i) If a payment hereunder is not made by Borrower in a timely manner, Bank is authorized by Borrower to debit the amount of any such payments from the general deposit account of Borrower with Bank.
(j) Borrower represents that the proceeds of the Unfunded Loan Amount Advances will be used only for Approved Purposes.
(k) If any change subsequent to the date hereof in any applicable law, order, regulation, treaty or directive issued by any central bank or other Governmental Authority, or in the governmental or judicial interpretation or application thereof, or compliance by Bank with any request or directive (whether or not having the force of law) by any central bank or other Governmental Authority:
(1) subjects Bank to any tax of any kind whatsoever with respect to this Agreement or any Loans made hereunder, or change the basis of taxation of payments to Bank of principal, fee, interest or any other amount payable hereunder (except for change in the rate of tax on the overall net income of Bank);
(2) imposes, modifies or holds applicable any reserve, capital requirement, special deposit, compulsory loan or similar requirements against assets held by, or deposits or other liabilities in or for the account of, advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of Bank which are not otherwise included in the determination of the corporate base rate; or
(3) imposes on Bank any other condition; and such change increases the cost to Bank of purchasing or maintaining the Loan, or reduces any amount receivable in respect thereof, or reduces the rate of return on the capital of Bank or any Person controlling Bank, then, in any such case, Borrower shall promptly pay to Bank, upon its written demand, any additional amounts necessary to compensate Bank for such cost increase or reduction in the amounts receivable or rate of return, as determined by Bank, with respect to this Agreement and the other Loan Documents and the transactions contemplated hereby and thereby. If Bank becomes entitled to claim any additional amounts pursuant to this Section, it shall promptly notify Borrower in writing of the event by reason of which it has become so entitled. Bank shall provide with such notice a certificate as to any additional amounts payable pursuant to the foregoing sentence, containing the calculation thereof in reasonable detail, and such calculation shall be conclusive in the absence of manifest error. The provisions hereof shall survive the termination of this Agreement. Any and all payments by Borrower under or in respect of this Agreement or any other Loan Documents to which Borrower is a party shall be made free and clear of, and without deduction or withholding for or on account of, any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities (including penalties, interest and additions to tax) with respect thereto, whether now or hereafter imposed, levied, collected, withheld or assessed by any taxation authority or other Governmental Authority (collectively, “Taxes”), unless required by law. If Borrower shall be required under any applicable Requirement of Law to deduct or withhold any Taxes from or in respect of any sum payable under or in respect of this Agreement or any of the other Loan Documents to Bank, (1) Borrower shall make all such deductions and withholdings in respect of Taxes, (2) Borrower shall pay the full amount deducted or withheld in respect of Taxes to the relevant taxation authority or other Governmental Authority in accordance with the following: fundings any applicable Requirement of portions of the Unfunded Loan Amount shall be permitted only to the extent that, after giving effect to such advance and the application by Borrower of the proceeds thereof (as hereinafter required to be applied), the aggregate of the remaining Unfunded Loan Amount plus the balance in the Retained Amount Reserve shall be equal to or greater than the sum of (x) the lesser of $35,500,000 and the maximum principal amount guaranteed under the BT GuarantyLaw, and (y3) the sum payable by Borrower hereunder shall be increased as may be necessary so that after Borrower has made all required deductions and withholdings (including deductions and withholdings applicable to additional amounts payable under this Section 3(k)) Bank receives an amount which Prometheus ES is obligated to contribute equal to the capital sum it would have received had no such deductions or withholdings been made in respect of IntownNon-Excluded Taxes. To For purposes of this Agreement, the extent term “Non-Excluded Taxes” are Taxes other than, in the case of Bank, Taxes that are imposed on its overall net income (and franchise taxes imposed in lieu thereof) by the jurisdiction under the laws of which Bank is organized or of its applicable lending office, or any political subdivision thereof, unless such Taxes are imposed as a result of Bank having executed, delivered or performed its obligations or received payments under, or enforced, this Agreement or any of the other Loan Documents (in which case such Taxes will be treated as Non-Excluded Taxes). In addition, Borrower hereby agrees to pay any present or future stamp, recording, documentary, excise, property or value-added taxes, or similar taxes, charges or levies that arise from any payment made under or in respect of this Agreement or any other Loan Document or from the execution, delivery or registration of, any performance under, or otherwise with respect to, this Agreement or any other Loan Document (collectively, “Other Taxes”).
(l) Borrower agrees to pay Bank the Up-Front Fee, such payment to be made in Dollars, in immediately available funds, without deduction, set off or counterclaim. Bank may, in its sole discretion, net the Up-Front Fee from the proceeds of any Loan Advance made to Borrower.
(m) Bank may, from time to time and without notice to Borrower sell or offer to sell the Unfunded Loan Amount are disbursed for such purposesLoan, or interests therein, to one or more assignees or participants. Borrower further agrees that Bank is hereby authorized to disseminate and disclose any information (whether or not confidential or proprietary in nature) Bank now has or may hereafter obtain pertaining to Borrower, the Serviced Loans, the Loans and the applicable member(s) Loan Documents (including, without limitation, any credit or other information regarding Borrower, any of the Borrower Control Group shall useits principals, or any other person or entity liable, directly or indirectly, such proceeds for any part of the Loan, to (A1) repay a portion any assignee or participant or any prospective assignee or prospective participant, (2) any regulatory body having jurisdiction over Bank or the Loan, (3) any subservicer of the loan made by Bankers Trust Company Serviced Loans, including without limitation, any other mortgage originator under a standby servicing agreement wherein such originator will take over and service the BT Agreement in order Serviced Loans if an Agency terminates Borrower’s right to terminate service the Serviced Loans or reduce the principal amount of the BT Guaranty or if Borrower otherwise to induce Bankers Trust Company to extend such loan on terms satisfactory to Lender in Lender's sole and absolute discretiondefaults hereunder, and (B) subject d)any other persons or entities as may be necessary or appropriate in Bank’s reasonable judgment). Bank, as a courtesy to Section 2.1(e)Borrower but without obligation or liability for failure to do so, fund all will endeavor to notify Borrower of any such assignees, participants, subservicers or a portion mortgage originators, or prospective assignees, participants, subservicers or mortgage originators, to which Bank disseminates any of the obligations of Prometheus ES to contribute capital to Intowninformation described above.
(dn) Notwithstanding anything contained herein Except as otherwise provided in the Loan Documents or otherwise agreed by Bank, all payments and prepayments of the Obligations, including proceeds from the exercise of any rights under the Loan Documents or proceeds of any of the Collateral, shall be applied to the contraryObligations in the following order, prior any instructions from Borrower to disbursement of the contrary notwithstanding: (1) to the expenses for which Bank shall not have been reimbursed under the Loan Documents, and then to all indemnified amounts due under the Loan Documents; (2) to fees then owed Bank hereunder or under any other portion of the Unfunded Loan Amount Document; (3) to be advanced at any time, there shall be deposited into the Interest Reserve of the Deposit Account an amount which shall be sufficient to pay all interest, accrued interest on the portion of the Unfunded Loan Amount as Advance being paid or prepaid; (4) to which Borrower has requested a disbursement, which will become due and payable the principal portion of the Loan Advance being paid or prepaid; (i5) to the remaining accrued interest on each Payment Date following the date Loan; (6) to the remaining principal portion of such disbursement and occurring during the Fiscal Quarter in which such disbursement is to occur, Loan; and (ii7) at Lender's discretion, on each to any remaining Obligations. All amounts remaining after the foregoing application of the first and second Payment Dates occurring during the Fiscal Quarter next succeeding the Fiscal Quarter in which such disbursement is funds shall be paid to occur, all as estimated in accordance with the provisions of the Amended and Restated Deposit Account AgreementBorrower.
(eo) Notwithstanding anything else to the contrary contained or implied herein or in this Section 2.1any other Loan Document, Lender Bank shall have no obligation full, unlimited recourse against Borrower and its assets in order to disburse satisfy the last $3,750,000 of the Unfunded Loan Amount unless Prometheus ES shall have actually received a distribution of cash Obligations.
(which shall not have been merely "deemed" to have been made pursuant to the Intown Agreementp) constituting the "Class A Preferred Return" (as such term is defined For each calendar quarter that commences on or after June 30, 2018, in the Intown Agreement) for the second calendar quarter of 2001).event that the
Appears in 1 contract
Loan Advances. (a) On Upon satisfaction of all conditions contained in this Agreement, but subject to the date hereofprovisions of this Agreement, the outstanding principal balance Lender agrees to advance to the Borrower up to Three Million Five Hundred Thousand Dollars ($3,500,000) under the Loan for construction of the Original Note, as amended Improvements or the repayment of loans made available by the First Amendment, is $36,250,000, and the outstanding principal balance of the First Additional Note is $10,000,000. Lender shall lend to Borrower an additional amount equal to the New Loan Amount, which will be advanced as follows: on Borrower prior to the Closing Date or, if later, the date on which Borrower fulfills all conditions precedent to funding, Lender will advance to Borrower $38,750,000 ("Initial Advance") and, at the request for construction of the Improvements. All such Loan Advances shall be evidenced by the Note and secured by the Security Documents. Loan Advances will be made only to reimburse Borrower made in accordance with and subject for costs of construction to the conditions contained extent specified in Section 2.1(b)the Budget, Lender will advance up to Borrower on or before August 1, 2001 in one or more tranches the additional aggregate principal amount of not more than $25,000,000 ("Unfunded Loan Amount")the Loan.
(b) Lender's obligation Loan Advances for Improvements will be approved only pursuant to make advances and in accordance with the provisions of all or any portion of the Unfunded Loan Amount following the Initial Advance shall be subject to the conditions that, with respect to each such advance requested:
(i) no Default or Event of Default shall have occurred and be continuing;
(ii) no Material Adverse Condition shall exist with respect to Borrower, the Fund taken as a whole, any other member of the Borrower Control Group or any Operating Company; provided, that, if a Material Adverse Condition exists solely with respect to one or more AACDFK Entities and one or more members of the Borrower Control Group (excluding the Borrower and the Fund), that own, directly or indirectly, an interest in such AACDFK Entities (as long as the Material Adverse Condition affecting the applicable members of the Borrower Control Group is solely caused by or results solely from the Material Adverse Condition of the subject AACDFK Entities), and all of the other conditions to Lender's obligation to make advances of all or any portion of the Unfunded Loan Amount are satisfied, Lender shall be obligated to fund such subsequent advance as long as none of the proceeds of such advance shall be advanced, contributed or otherwise invested, directly or indirectly, in any Entity as to which a Material Adverse Condition exists at the time of such advance;
(iii) Lender shall have received Borrower's written request for each advance not less than 30 nor more than 60 days prior to the requested funding date for such advance, specifying the amount requested, the use of the proceeds attributable to such advance, the new Collateral to be furnished in connection therewith, the Borrower's calculation (with all necessary supporting information) demonstrating the Debt Service Coverage Ratio, and the proposed funding date, and certifying that no Default or Event of Default has occurred and is continuing;
(iv) advances shall not be made more often than once in any rolling 30-day period;
(v) no advance other than the last such advance shall be in an amount less than $5,000,000;
(vi) Lender shall have received payment from Borrower of a fee equal to three quarters of one percent (0.75%) of the amount of such advance;
(vii) in the event that subsequent to the Closing Date (x) any member of the Borrower Control Group shall have acquired any direct or indirect Equity Interest in any Entity, or (y) any member of the Borrower Control Group shall have made any loans to any Entity, or (z) any member of the Borrower Control Group shall have purchased or otherwise acquired any property of any Entity, Lender shall have received a perfected, first priority Lien in such interest, loan and property, as created and evidenced by such instruments (including new pledge agreements, Direction Letters, and amendments, if required by Lender, to the Amended and Restated Deposit Account Agreement) as Lender may request, all in form and substance reasonably satisfactory to Lender; provided, however, that the foregoing shall not be deemed to constitute a consent or waiver by Lender (to the extent that such consent is otherwise required by this Agreement or any Loan Document) with respect to any such purchase, acquisition or loan by Borrower or any member of the Borrower Control Group;
(viii) the conditions precedent to funding contained in Section 3.1(a)(3), (4), (5), (6), (7), (8), (9), (10) and (11) shall have been fulfilled insofar as Lender shall deem them applicable to any subsequent advance; provided, that, (x) the conditions precedent to funding contained in Section 3.1(a)(3), (4), (5), (6), and (7) shall only be applicable with respect to any new Collateral, and (y) the representations and warranties set forth in the last two sentences of Section 4.1(r) hereto shall not be remade with respect to any of the AACDFK Entities; and
(ix) Debt Service Achievement shall be in effectSections 4.1 through 4.3.
(c) Notwithstanding anything in this Section 2.1 to the contrary, until such time as (i) either the BT Guaranty is terminated or the loan made by Bankers Trust Company pursuant to the BT Agreement has been extended on terms satisfactory to Lender in Lender's sole and absolute discretion, and (ii) all obligations of Prometheus ES to make capital contributions to Intown have been satisfied, Lender shall have no obligation to advance any portion of the Unfunded Loan Amount except in accordance with the following: fundings of portions of the Unfunded Loan Amount shall be permitted only to the extent that, after giving effect to such advance and the application by Borrower of the proceeds thereof (as hereinafter required to be applied), the aggregate of the remaining Unfunded Loan Amount plus the balance in the Retained Amount Reserve shall be equal to or greater than the sum of (x) the lesser of $35,500,000 and the maximum principal amount guaranteed under the BT Guaranty, and (y) the amount which Prometheus ES is obligated to contribute to the capital of Intown. To the extent that proceeds of the Unfunded Loan Amount are disbursed for such purposes, Borrower and the applicable member(s) of the Borrower Control Group shall use, directly or indirectly, such proceeds to (A) repay a portion of the loan made by Bankers Trust Company under the BT Agreement in order to terminate or reduce the principal amount of the BT Guaranty or otherwise to induce Bankers Trust Company to extend such loan on terms satisfactory to Lender in Lender's sole and absolute discretion, and (B) subject to Section 2.1(e), fund all or a portion of the obligations of Prometheus ES to contribute capital to Intown.
(d) Notwithstanding anything contained herein to the contrary, prior in no event shall the Lender be required to disbursement approve any Loan Advance, or portion thereof, for any line item or cost category in excess of the amount budgeted therefor in the Budget, nor shall the Lender be obligated to approve any Loan Advance, or portion thereof, in respect of any other line item if the unadvanced portion of the Unfunded Loan Amount Advances budgeted in the Budget shall at any time appear, in the reasonable judgment of the Lender, to be advanced at any timeless than the amount which will be required for the completion of such item pursuant to the Plans and Specifications pertaining thereto. The Borrower may not, there shall be deposited into without the Interest Reserve written approval of the Deposit Account an amount Lender (which approval shall not be sufficient unreasonably withheld), reallocate any funds remaining unused to pay all interestother line items in the Budget. If, on the portion for any item of work, Loan Advances are disbursed in excess of the Unfunded amount budgeted therefor, the Borrower shall immediately remit such excess Loan Amount as Advances to which Borrower has requested a disbursement, which will become due and payable (i) on each Payment Date following the date of such Lender for disbursement and occurring during the Fiscal Quarter in which such disbursement is to occur, and (ii) at Lender's discretion, on each of the first and second Payment Dates occurring during the Fiscal Quarter next succeeding the Fiscal Quarter in which such disbursement is to occur, all as estimated in accordance with the provisions of the Amended and Restated Deposit Account Agreementhereunder.
(ed) Notwithstanding anything Loan Advances for construction of the Improvements will be made after the presentation of vouchers presented by any duly authorized representative of the Borrower based on ▇▇▇▇▇▇▇▇ for labor, materials incorporated in the Improvements, work completed, and other costs provided for in the Budget (subject to Section 2.1(c) above), but only after the Improvements for which a Loan Advance is requested are inspected by or on behalf of the Lender to verify the completed Improvements and quality of workmanship, as to the contrary contained in this Section 2.1, Lender shall have no obligation to disburse the last $3,750,000 of the Unfunded Loan Amount unless Prometheus ES shall have actually received a distribution of cash (which shall not have been merely "deemed" to have been made pursuant adherence to the Intown Agreement) constituting presented vouchers and the "Class A Preferred Return" (Plans and Specifications pertaining thereto, as such term is defined more fully set forth in the Intown Agreement) for the second calendar quarter of 2001)Sections 4.1 through 4.
Appears in 1 contract
Sources: Construction Loan Agreement (Central Sprinkler Corp)
Loan Advances. Advances made under the Note shall be in the form of a continual revolving credit whereby advances may be made, repaid and readvanced from time to time. The Mortgagee shall maintain an account on its books (a) On the "Loan Account"), which shall evidence at all times the amount from time to time outstanding under the Note. This Mortgage secures the unpaid balances of any advances or readvances made under the Note, this Mortgage, the Agreement or any other Loan Document after this Mortgage has been delivered to the appropriate County Officer for recordation. It is also expressly provided for and agreed that this Mortgage secures said future advances and readvances, whether such advances and readvances are obligatory or to be made at the option of Mortgagee or otherwise, to the same extent as if such future advances and readvances were made on the date hereof, the outstanding principal balance of the Original Note, as amended by the First Amendment, is $36,250,000, and the outstanding principal balance execution of the First Additional Note is $10,000,000. Lender shall lend to Borrower an additional amount equal to the New Loan Amount, which will this Mortgage although there may be advanced as follows: on the Closing Date or, if later, the date on which Borrower fulfills all conditions precedent to funding, Lender will no advance to Borrower $38,750,000 ("Initial Advance") and, at the request of the Borrower made in accordance with and subject to the conditions contained in Section 2.1(b), Lender will advance to Borrower on or before August 1, 2001 in one or more tranches the additional aggregate amount of not more than $25,000,000 ("Unfunded Loan Amount").
(b) Lender's obligation to make advances of all or any portion of the Unfunded Loan Amount following the Initial Advance shall be subject to the conditions that, with respect to each such advance requested:
(i) no Default or Event of Default shall have occurred and be continuing;
(ii) no Material Adverse Condition shall exist with respect to Borrower, the Fund taken as a whole, any other member of the Borrower Control Group or any Operating Company; provided, that, if a Material Adverse Condition exists solely with respect to one or more AACDFK Entities and one or more members of the Borrower Control Group (excluding the Borrower and the Fund), that own, directly or indirectly, an interest in such AACDFK Entities (as long as the Material Adverse Condition affecting the applicable members of the Borrower Control Group is solely caused by or results solely from the Material Adverse Condition of the subject AACDFK Entities), and all of the other conditions to Lender's obligation to make advances of all or any portion of the Unfunded Loan Amount are satisfied, Lender shall be obligated to fund such subsequent advance as long as none of the proceeds of such advance shall be advanced, contributed or otherwise invested, directly or indirectly, in any Entity as to which a Material Adverse Condition exists at the time of such advance;
(iii) Lender shall have received Borrower's written request for each execution of this Mortgage or no indebtedness outstanding at the time any advance not less than 30 nor more than 60 days prior to the requested funding date for such advance, specifying the amount requested, the use of the proceeds attributable to such advance, the new Collateral to be furnished in connection therewith, the Borrower's calculation (with all necessary supporting information) demonstrating the Debt Service Coverage Ratio, and the proposed funding date, and certifying that no Default or Event of Default has occurred and readvance is continuing;
(iv) advances shall not be made more often than once in any rolling 30-day period;
(v) no advance other than the last such advance shall be in an amount less than $5,000,000;
(vi) Lender shall have received payment from Borrower of a fee equal to three quarters of one percent (0.75%) of the made. The total amount of such advance;
(vii) in the event indebtedness that subsequent may be secured by this Mortgage may decrease or increase from time to the Closing Date (x) any member of the Borrower Control Group shall have acquired any direct or indirect Equity Interest in any Entity, or (y) any member of the Borrower Control Group shall have made any loans to any Entity, or (z) any member of the Borrower Control Group shall have purchased or otherwise acquired any property of any Entity, Lender shall have received a perfected, first priority Lien in such interest, loan and property, as created and evidenced by such instruments (including new pledge agreements, Direction Letters, and amendments, if required by Lender, to the Amended and Restated Deposit Account Agreement) as Lender may request, all in form and substance reasonably satisfactory to Lendertime; provided, however, that the foregoing total unpaid balance secured at any time shall not exceed Twenty Million Dollars ($20,000,000.00) plus interest thereon, and advances made by Mortgagee pursuant to this Mortgage, including without limitation, for the payment of taxes, assessments, insurance premiums, costs for the protection of the Mortgaged Property, reasonable attorneys' fees (at all tribunal levels) and court costs incurred in the collection of any or all of such sums of money and interest thereon. It shall be deemed an Event of Default hereunder if Mortgagor shall file a notice pursuant to constitute a consent or waiver by Lender (to Section 697.04(1)(b), Florida Statutes, limiting the extent amount of indebtedness that such consent is otherwise required may be secured by this Agreement Mortgage. All future advances and readvances shall be made within twenty (20) years from the date hereof or any Loan Document) with respect such longer period of time as may be authorized by Florida law, and all indebtedness created by such future advances and readvances shall be secured hereby. All provisions of this Mortgage shall apply to any such purchase, acquisition future advances or loan by Borrower or any member of the Borrower Control Group;
(viii) the conditions precedent to funding contained in Section 3.1(a)(3), (4), (5), (6), (7), (8), (9), (10) and (11) shall have been fulfilled insofar as Lender shall deem them applicable to any subsequent advance; provided, that, (x) the conditions precedent to funding contained in Section 3.1(a)(3), (4), (5), (6), and (7) shall only be applicable with respect to any new Collateral, and (y) the representations and warranties set forth in the last two sentences of Section 4.1(r) hereto shall not be remade with respect to any of the AACDFK Entities; and
(ix) Debt Service Achievement shall be in effect.
(c) Notwithstanding anything in this Section 2.1 to the contrary, until such time as (i) either the BT Guaranty is terminated or the loan made by Bankers Trust Company pursuant to the BT Agreement has been extended on terms satisfactory to Lender in Lender's sole and absolute discretion, and (ii) all obligations of Prometheus ES to make capital contributions to Intown have been satisfied, Lender shall have no obligation to advance any portion of the Unfunded Loan Amount except in accordance with the following: fundings of portions of the Unfunded Loan Amount shall be permitted only to the extent that, after giving effect to such advance and the application by Borrower of the proceeds thereof (as hereinafter required to be applied), the aggregate of the remaining Unfunded Loan Amount plus the balance in the Retained Amount Reserve shall be equal to or greater than the sum of (x) the lesser of $35,500,000 and the maximum principal amount guaranteed under the BT Guaranty, and (y) the amount which Prometheus ES is obligated to contribute to the capital of Intown. To the extent that proceeds of the Unfunded Loan Amount are disbursed for such purposes, Borrower and the applicable member(s) of the Borrower Control Group shall use, directly or indirectly, such proceeds to (A) repay a portion of the loan made by Bankers Trust Company under the BT Agreement in order to terminate or reduce the principal amount of the BT Guaranty or otherwise to induce Bankers Trust Company to extend such loan on terms satisfactory to Lender in Lender's sole and absolute discretion, and (B) subject to Section 2.1(e), fund all or a portion of the obligations of Prometheus ES to contribute capital to Intown.
(d) Notwithstanding anything contained herein to the contrary, prior to disbursement of any other portion of the Unfunded Loan Amount to be advanced at any time, there shall be deposited into the Interest Reserve of the Deposit Account an amount which shall be sufficient to pay all interest, on the portion of the Unfunded Loan Amount as to which Borrower has requested a disbursement, which will become due and payable (i) on each Payment Date following the date of such disbursement and occurring during the Fiscal Quarter in which such disbursement is to occur, and (ii) at Lender's discretion, on each of the first and second Payment Dates occurring during the Fiscal Quarter next succeeding the Fiscal Quarter in which such disbursement is to occur, all as estimated in accordance with the provisions of the Amended and Restated Deposit Account Agreement.
(e) Notwithstanding anything to the contrary contained in this Section 2.1, Lender shall have no obligation to disburse the last $3,750,000 of the Unfunded Loan Amount unless Prometheus ES shall have actually received a distribution of cash (which shall not have been merely "deemed" to have been readvances made pursuant to the Intown Agreement) constituting provisions of this Section. Nothing herein contained shall limit the "Class A Preferred Return" (amount secured by this Mortgage if such amount is increased by advances made by Mortgagee as such term is defined in the Intown Agreement) for the second calendar quarter of 2001)herein elsewhere provided.
Appears in 1 contract
Sources: Mortgage and Security Agreement (Oriole Homes Corp)
Loan Advances. 2.1 On each Business Day the Lender will monitor the Account to determine the amount of Available Funds, if any. If the Lender determines on any Business Day that the amount of Available Funds is less than the Target Balance for any reason (including, without limitation, the Lender's determination to honor, in its sole discretion, any Instrument presented for payment against the Account at a time when Excess Funds are not sufficient to cover such Instrument, thus creating an overdraft), the Borrower authorizes the Lender to make a Loan to the Borrower in the amount necessary to cause Available Funds to equal or exceed the Target Balance; provided, however, that such Loans shall be made by the Lender in increments of $1,000 unless otherwise determined by the Lender. The Lender shall not be obligated to make a Loan if (a) On the date hereof, the outstanding principal balance of the Original Note, as amended by the First Amendment, is $36,250,000, and the outstanding principal balance of the First Additional Note is $10,000,000. Lender shall lend to Borrower an additional amount equal to the New Loan Amount, which will be advanced as follows: on the Closing Date or, if later, the date on which Borrower fulfills all conditions precedent to funding, Lender will advance to Borrower $38,750,000 ("Initial Advance") and, at the request of the Borrower made in accordance with and subject to the conditions contained in Section 2.1(b), Lender will advance to Borrower on or before August 1, 2001 in one or more tranches the additional aggregate amount of not more than $25,000,000 ("Unfunded Loan Amount").
(b) Lender's obligation to make advances of all or any portion of the Unfunded Loan Amount following the Initial Advance shall be subject to the conditions that, with respect to each such advance requested:
(i) no Default or Event of a Default shall have occurred and be continuing;
, (iib) no Material Adverse Condition shall exist with respect such Loan would cause the Loans outstanding under the Loan Agreement to Borrower, exceed the Fund taken as a whole, any other member of the Borrower Control Group or any Operating Company; provided, that, if a Material Adverse Condition exists solely with respect to one or more AACDFK Entities and one or more members of the Borrower Control Group (excluding the Borrower and the Fund), that own, directly or indirectly, an interest in such AACDFK Entities (as long as the Material Adverse Condition affecting the applicable members of the Borrower Control Group is solely caused by or results solely from the Material Adverse Condition of the subject AACDFK Entities), and all of the other conditions to Lender's obligation to make advances of all or any portion of the Unfunded Loan Amount are satisfied, Lender shall be obligated to fund such subsequent advance as long as none of the proceeds of such advance shall be advanced, contributed or otherwise invested, directly or indirectly, in any Entity as to which a Material Adverse Condition exists at the time of such advance;
(iii) Lender shall have received Borrower's written request for each advance not less than 30 nor more than 60 days prior to the requested funding date for such advance, specifying the amount requested, the use of the proceeds attributable to such advance, the new Collateral to be furnished in connection therewith, the Borrower's calculation (with all necessary supporting information) demonstrating the Debt Service Coverage Ratio, and the proposed funding date, and certifying that no Default or Event of Default has occurred and is continuing;
(iv) advances shall not be made more often than once in any rolling 30-day period;
(v) no advance other than the last such advance shall be in an amount less than $5,000,000;
(vi) Lender shall have received payment from Borrower of a fee equal to three quarters of one percent (0.75%) of the amount of such advance;
(vii) in the event that subsequent to the Closing Date (x) any member of the Borrower Control Group shall have acquired any direct or indirect Equity Interest in any EntityMaximum Amount, or (yc) any member of the Borrower Control Group shall have made any loans to any Entity, or (z) any member of the Borrower Control Group shall have purchased or otherwise acquired any property of any Entity, Lender shall have received a perfected, first priority Lien in such interest, loan and property, as created and evidenced by such instruments (including new pledge agreements, Direction Letters, and amendments, if required by Lender, other condition precedent to the Amended and Restated Deposit Account Agreement) as Lender may request, all in form and substance reasonably satisfactory to Lender; provided, however, that the foregoing shall not be deemed to constitute a consent or waiver by Lender (to the extent that such consent is otherwise required by this Agreement or any Loan Document) with respect to any such purchase, acquisition or loan by Borrower or any member of the Borrower Control Group;
(viii) the conditions precedent to funding contained in Section 3.1(a)(3), (4), (5), (6), (7), (8), (9), (10) and (11) shall have been fulfilled insofar as Lender shall deem them applicable to any subsequent advance; provided, that, (x) the conditions precedent to funding contained in Section 3.1(a)(3), (4), (5), (6), and (7) shall only be applicable with respect to any new Collateral, and (y) the representations and warranties set forth in the last two sentences of Section 4.1(r) hereto shall not be remade with respect to any of the AACDFK Entities; and
(ix) Debt Service Achievement shall be in effect.
(c) Notwithstanding anything in this Section 2.1 to the contrary, until such time as (i) either the BT Guaranty is terminated or the loan made by Bankers Trust Company pursuant to the BT Agreement has been extended on terms satisfactory to Lender in Lender's sole and absolute discretion, and (ii) all obligations of Prometheus ES to make capital contributions to Intown have been satisfied, Lender shall have no obligation to advance any portion of the Unfunded Loan Amount except in accordance with the following: fundings of portions of the Unfunded Loan Amount shall be permitted only to the extent that, after giving effect to such advance and the application by Borrower of the proceeds thereof (as hereinafter required to be applied), the aggregate of the remaining Unfunded Loan Amount plus the balance in the Retained Amount Reserve shall be equal to or greater than the sum of (x) the lesser of $35,500,000 and the maximum principal amount guaranteed under the BT Guaranty, and (y) the amount which Prometheus ES is obligated to contribute to the capital of Intown. To the extent that proceeds of the Unfunded Loan Amount are disbursed for such purposes, Borrower and the applicable member(s) of the Borrower Control Group shall use, directly or indirectly, such proceeds to (A) repay a portion of the loan made by Bankers Trust Company under the BT Agreement in order to terminate or reduce the principal amount of the BT Guaranty or otherwise to induce Bankers Trust Company to extend such loan on terms satisfactory to Lender in Lender's sole and absolute discretion, and (B) subject to Section 2.1(e), fund all or a portion of the obligations of Prometheus ES to contribute capital to Intown.
(d) Notwithstanding anything contained herein to the contrary, prior to disbursement of any other portion of the Unfunded a Loan Amount to be advanced at any time, there shall be deposited into the Interest Reserve of the Deposit Account an amount which shall be sufficient to pay all interest, on the portion of the Unfunded Loan Amount as to which Borrower has requested a disbursement, which will become due and payable (i) on each Payment Date following the date of such disbursement and occurring during the Fiscal Quarter in which such disbursement is to occur, and (ii) at Lender's discretion, on each of the first and second Payment Dates occurring during the Fiscal Quarter next succeeding the Fiscal Quarter in which such disbursement is to occur, all as estimated not been satisfied in accordance with the provisions of the Amended Loan Agreement. Even if the aggregate principal amount of Loans outstanding at any time and Restated Deposit Account for any reason shall exceed the Maximum Amount, the Borrower shall be liable for the entire principal amount outstanding with interest thereon in accordance with the Loan Agreement, and the Borrower shall be liable and responsible for the observance and performance of all covenants, warranties and duties on its part to be observed or performed under the Loan Agreement. If the aggregate amount of Loans made and outstanding at any time shall exceed the Maximum Amount, the Borrower shall pay the amount of such excess to the Lender upon demand.
(e) Notwithstanding anything 2.2 If the Lender determines on any Business Day that there are Excess Funds, the Borrower authorized the Lender to transfer from the contrary contained Account all or any part of such Excess Funds and apply such transferred portion to reduce any principal amounts then outstanding under the Note, provided that such reductions shall only be made in this Section 2.1, Lender shall have no obligation to disburse increments of $1,000 unless otherwise determined by the last $3,750,000 of the Unfunded Loan Amount unless Prometheus ES shall have actually received a distribution of cash (which shall not have been merely "deemed" to have been made pursuant to the Intown Agreement) constituting the "Class A Preferred Return" (as such term is defined in the Intown Agreement) for the second calendar quarter of 2001)Lender.
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Loan Advances. (a) On the date hereof, the outstanding principal balance of the Original Note, as amended by the First Amendment, is $36,250,000, and the outstanding principal balance of the First Additional Note is $10,000,000. Lender shall lend to Borrower an additional amount equal to the New Loan Amount, which will be advanced as follows: on the Closing Date or, if later, the date on which Borrower fulfills all conditions precedent to funding, Lender will advance to Borrower $38,750,000 ("Initial AdvanceINITIAL ADVANCE") and, at the request of the Borrower made in accordance with and subject to the conditions contained in Section 2.1(b), Lender will advance to Borrower on or before August 1, 2001 in one or more tranches the additional aggregate amount of not more than $25,000,000 ("Unfunded Loan AmountUNFUNDED LOAN AMOUNT").
(b) Lender's obligation to make advances of all or any portion of the Unfunded Loan Amount following the Initial Advance shall be subject to the conditions that, with respect to each such advance requested:
(i) no Default or Event of Default shall have occurred and be continuing;
(ii) no Material Adverse Condition shall exist with respect to Borrower, the Fund taken as a whole, any other member of the Borrower Control Group or any Operating Company; provided, that, if a Material Adverse Condition exists solely with respect to one or more AACDFK Entities and one or more members of the Borrower Control Group (excluding the Borrower and the Fund), that own, directly or indirectly, an interest in such AACDFK Entities (as long as the Material Adverse Condition affecting the applicable members of the Borrower Control Group is solely caused by or results solely from the Material Adverse Condition of the subject AACDFK Entities), and all of the other conditions to Lender's obligation to make advances of all or any portion of the Unfunded Loan Amount are satisfied, Lender shall be obligated to fund such subsequent advance as long as none of the proceeds of such advance shall be advanced, contributed or otherwise invested, directly or indirectly, in any Entity as to which a Material Adverse Condition exists at the time of such advance;
(iii) Lender shall have received Borrower's written request for each advance not less than 30 nor more than 60 days prior to the requested funding date for such advance, specifying the amount requested, the use of the proceeds attributable to such advance, the new Collateral to be furnished in connection therewith, the Borrower's calculation (with all necessary supporting information) demonstrating the Debt Service Coverage Ratio, and the proposed funding date, and certifying that no Default or Event of Default has occurred and is continuing;
(iv) advances shall not be made more often than once in any rolling 30-day period;
(v) no advance other than the last such advance shall be in an amount less than $5,000,000;
(vi) Lender shall have received payment from Borrower of a fee equal to three quarters of one percent (0.75%) of the amount of such advance;
(vii) in the event that subsequent to the Closing Date (x) any member of the Borrower Control Group shall have acquired any direct or indirect Equity Interest in any Entity, or (y) any member of the Borrower Control Group shall have made any loans to any Entity, or (z) any member of the Borrower Control Group shall have purchased or otherwise acquired any property of any Entity, Lender shall have received a perfected, first priority Lien in such interest, loan and property, as created and evidenced by such instruments (including new pledge agreements, Direction Letters, and amendments, if required by Lender, to the Amended and Restated Deposit Account Agreement) as Lender may request, all in form and substance reasonably satisfactory to Lender; provided, however, that the foregoing shall not be deemed to constitute a consent or waiver by Lender (to the extent that such consent is otherwise required by this Agreement or any Loan Document) with respect to any such purchase, acquisition or loan by Borrower or any member of the Borrower Control Group;
(viii) the conditions precedent to funding contained in Section 3.1(a)(3), (4), (5), (6), (7), (8), (9), (10) and (11) shall have been fulfilled insofar as Lender shall deem them applicable to any subsequent advance; provided, that, (x) the conditions precedent to funding contained in Section 3.1(a)(3), (4), (5), (6), and (7) shall only be applicable with respect to any new Collateral, and (y) the representations and warranties set forth in the last two sentences of Section 4.1(r) hereto shall not be remade with respect to any of the AACDFK Entities; and
(ix) Debt Service Achievement shall be in effect.
(c) Notwithstanding anything in this Section 2.1 to the contrary, until such time as (i) either the BT Guaranty is terminated or the loan made by Bankers Trust Company pursuant to the BT Agreement has been extended on terms satisfactory to Lender in Lender's sole and absolute discretion, and (ii) all obligations of Prometheus ES to make capital contributions to Intown have been satisfied, Lender shall have no obligation to advance any portion of the Unfunded Loan Amount except in accordance with the following: fundings of portions of the Unfunded Loan Amount shall be permitted only to the extent that, after giving effect to such advance and the application by Borrower of the proceeds thereof (as hereinafter required to be applied), the aggregate of the remaining Unfunded Loan Amount plus the balance in the Retained Amount Reserve shall be equal to or greater than the sum of (x) the lesser of $35,500,000 and the maximum principal amount guaranteed under the BT Guaranty, and (y) the amount which Prometheus ES is obligated to contribute to the capital of Intown. To the extent that proceeds of the Unfunded Loan Amount are disbursed for such purposes, Borrower and the applicable member(s) of the Borrower Control Group shall use, directly or indirectly, such proceeds to (A) repay a portion of the loan made by Bankers Trust Company under the BT Agreement in order to terminate or reduce the principal amount of the BT Guaranty or otherwise to induce Bankers Trust Company to extend such loan on terms satisfactory to Lender in Lender's sole and absolute discretion, and (B) subject to Section 2.1(e), fund all or a portion of the obligations of Prometheus ES to contribute capital to Intown.
(d) Notwithstanding anything contained herein to the contrary, prior to disbursement of any other portion of the Unfunded Loan Amount to be advanced at any time, there shall be deposited into the Interest Reserve of the Deposit Account an amount which shall be sufficient to pay all interest, on the portion of the Unfunded Loan Amount as to which Borrower has requested a disbursement, which will become due and payable (i) on each Payment Date following the date of such disbursement and occurring during the Fiscal Quarter in which such disbursement is to occur, and (ii) at Lender's discretion, on each of the first and second Payment Dates occurring during the Fiscal Quarter next succeeding the Fiscal Quarter in which such disbursement is to occur, all as estimated in accordance with the provisions of the Amended and Restated Deposit Account Agreement.
(e) Notwithstanding anything to the contrary contained in this Section 2.1, Lender shall have no obligation to disburse the last $3,750,000 of the Unfunded Loan Amount unless Prometheus ES shall have actually received a distribution of cash (which shall not have been merely "deemed" to have been made pursuant to the Intown Agreement) constituting the "Class A Preferred Return" (as such term is defined in the Intown Agreement) for the second calendar quarter of 2001).
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Sources: Loan Agreement (Lazard Freres Real Estate Investors LLC)