RecD08 2008-042417 - Laserfiche WebLink

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Flow will be measured monthly, whether or not such debt service is actually payable monthly. (ii) As used herein, the term "Excess Cash Flow" means, for any period, the net cash flow of the Borrower available for distribution to shareholders, members or partners (as the case may be) for such period, after the payment of all interest expense, the amortization of all principal of all indebtedness coming due during such period (whether by maturity, mandatory sinking fund payment, acceleration or otherwise), the payment of all fees, costs and expenses on an occasional or recurring basis in connection with the Loan or the Bonds, the payment of all operating, overhead, ownership and other expenditures of the Borrower directly or indirectly in connection with the Property (whether any such expenditures are current, capital or extraordinary expenditures), and the setting aside of all reserves for taxes, insurance, water and sewer charges or other similar impositions, capital expenditures, repairs and replacements and all other amounts which the Borrower is required to set aside pursuant to the Loan Documents or otherwise in connection with the Bonds, but excluding depreciation and amortization of intangibles. (iii) Borrower and Subordinate Lender shall cause to be delivered to Swap Provider such documentation and information, including, without limitation, income and expense statements for the Property, as shall be required from time to time by Swap Provider to confirm Subordinate Lender's compliance with the provisions of this Section. 5. Default Under Subordinate Loan Documents. (a) Notice of Default and Cure Rights. The Subordinate Lender shall deliver to the Swap Provider a Default Notice within five Business Days in each case where the Subordinate Lender has given a Default Notice to the Borrower. Failure of the Subordinate Lender to send a Default Notice to the Swap Provider shall not prevent the exercise of the Subordinate Lender's rights and remedies under the Subordinate Loan Documents, subj ect to the provisions of this Agreement. The Swap Provider shall have the right, but not the obligation, to cure any Subordinate Loan Default within 60 days following the date of such notice. All amounts paid by the Swap Provider in accordance with the Senior Documents to cure a Subordinate Loan Default shall be deemed to have been advanced by the Swap Provider pursuant to, and shall be secured by the lien of, the Senior Security Instrument. (b) Subordinate Lender's Exercise of Remedies After Notice to Swap Provider. If a Subordinate Loan Default occurs and is continuing, the Subordinate Lender agrees that, without the Swap Provider's prior written consent, it will not commence foreclosure proceedings with respect to the Property under the Subordinate Loan Documents or exercise any other rights or remedies it may have under the Subordinate Loan Documents, including, but not limited to, accelerating the Subordinate Loan, collecting rents, appointing (or seeking the appointment of) a receiver or exercising any other rights or remedies thereunder, unless and until it has given the Swap Provider at least 60 days' prior written notice; during such 60 day period, however, the Subordinate Lender shall be entitled to exercise and enforce all other rights and remedies available to the Subordinate Lender under the Subordinate Loan Documents and/or under applicable laws, including without limitation, rights to enforce covenants and agreements of the Borrower relating to income, rent, or affordability restrictions contained in the Covenants. 6