Paycheck Protection Program. As a result of the COVID-19 pandemic, the Borrower has (a) informed the Lender that the Borrower and/or its Subsidiaries desire to participate in and obtain a Small Business Loan under the federal Paycheck Protection Program provided in Section 7(a) of the Small Business Act of 1953, as amended by the Coronavirus Aid, Relief, and Economic Security Act (as amended from time to time, the “PPP”), in a principal amount not to exceed an amount to be approved by the Small Business Administration (such loan in such amount, the “PPP Loan”) from a lender participating in the PPP that is acceptable to the Borrower (the “PPP Lender”). In connection therewith and as a result of the COVID-19 pandemic, the Borrower has requested that the Lender: (i) consent to the incurrence by the Borrower and/or its Subsidiaries of the PPP Loan; and (ii) consent to the Borrower using the proceeds of the PPP Loan solely in accordance with and for the limited purposes set forth in the terms, provisions and guidelines of the PPP. Subject to the satisfaction of the terms and conditions set forth herein, the Lender is willing to do so, on the terms and subject to the conditions set forth herein. Notwithstanding anything to the contrary contained in the Loan Agreement or the other Loan Documents, in reliance on the representations, warranties, covenants and agreements contained herein, the Borrower and the Lender hereby agree as follows: (a) So long as the Borrower at all times comply with the PPP Conditions (as defined herein), the Lender hereby consents to the Borrower and/or its Subsidiaries applying for, obtaining and incurring the PPP Loan from the PPP Lender. (b) The foregoing consent of the Lender is expressly subject to and conditioned on the continuing satisfaction of the following conditions, covenants and agreements (collectively, the “PPP Conditions”): (A) the principal amount of the PPP Loan shall not exceed the amount approved by the Small Business Administration; (B) the PPP Loan shall at all times be unsecured; (C) the Borrower shall use the proceeds of the PPP Loan solely in accordance with and for the limited purposes set forth in the terms, provisions and guidelines of the PPP; (D) the Borrower shall comply with all of the terms and guidelines of the PPP with respect to the PPP Loan; (E) the Borrower shall use its best efforts to ensure that the PPP Loan shall be forgiven in accordance with the PPP; (F) all information provided by the Borrower to the PPP Lender, the Small Business Administration or other applicable Government Authority or otherwise under or in connection with the PPP Loan shall be true in all material respects; and (G) the Borrower covenants and agrees that (x) the Borrower shall comply with the PPP Conditions, and (y) the Borrower shall upon receipt thereof, promptly (and in any event within three (3) Business Days) provide the Lender with copies of any correspondence from the PPP Lender, the Small Business Administration or any other applicable Government Authority with respect to the PPP Loan following the PPP Lender’s making the PPP Loan available to the Borrower (including any notices of defaults thereunder, any requirement of Borrower or any affiliate or any shareholder, member or partner of any of the foregoing to make any payment on the PPP Loan and the forgiveness of all or any portion of the PPP Loan, and including any notice which would cause any portion of the PPP Loan to be a Non-Qualifying Portion pursuant to clause (d) below). (c) Without limiting any other provision or requirement of this Agreement, the Borrower and the Lender hereby agree that (i) the PPP Loan shall constitute Indebtedness of the Borrower for purposes of the Loan Agreement and the other Loan Documents, other than for purposes of determining (A) compliance with any financial covenants contained in the Loan Agreement, (B) any financial ratio used in connection with any basket or incurrence test contained in the Loan Documents, and (C) determining the interest rate applicable to the Loans (except for, in each case, any Non-Qualifying Portion referenced in clause (d) below), and (ii) any portion of the PPP Loan which is forgiven shall be disregarded in the calculation of Net Operating Income for all purposes, including, without limitation, calculating financial covenants, basket levels, pricing and other items (including affirmative and negative covenants) governed by reference to Net Operating Income. (d) Notwithstanding anything to the contrary contained in clause (c) above, to the extent all or any portion of the PPP Loan cannot reasonably be expected to be forgiven in accordance with the PPP or the Borrower or any of its Subsidiaries receives notice from the PPP Lender, the Small Business Administration or any Government Authority that all or any portion of the PPP Loan will not be forgiven (any such portion, a “Non-Qualifying Portion”), such Non-Qualifying Portion shall constitute Indebtedness for all purposes of the Loan Agreement and the other Loan Documents, including those purposes set forth in clauses (c)(i)(A), (B), and (C) above. (e) The limited consent set forth in this Section (i) shall be a one-time consent effective only as to the PPP Loan to be made on or about the date hereof and (ii) shall not be deemed to modify or affect the obligations of the Borrower to comply with each and every obligation, covenant, duty or agreement under the Loan Documents (as amended hereby, as the case may be) to which such Person is party from and after the date hereof. The Borrower agrees that the limited consent set forth in this Section shall be limited to the precise meaning of the words as written therein and shall not be deemed to prejudice any right or remedy that the Lender may now have or may in the future have under or in connection with the Loan Agreement or any other Loan Document other than with respect to the matters for which the limited consent set forth in this Section have been provided. The limited consent set forth in this Section shall not alter, affect, release or prejudice in any way any of the Obligations which constitutes a valid and subsisting obligation of the Borrower owed to the Lender under the Loan Agreement that is not subject to any credits, offsets, defenses, claims, counterclaims or adjustments of any kind. This Agreement shall not be construed as establishing a course of conduct on the part of the Lender upon which the Borrower may rely at any time in the future. The Borrower expressly waives any right to assert any claim to such effect at any time.
Appears in 1 contract
Sources: Forbearance Agreement (Lodging Fund REIT III, Inc.)
Paycheck Protection Program. As a result of the adverse impact of the COVID-19 pandemicpandemic on the Borrower's business, the Borrower has plans to obtain (a) informed the Lender that the Borrower and/or its Subsidiaries desire to participate in and obtain a Small Business Loan under the federal Paycheck Protection Program provided in Section 7(a) of the Small Business Act of 1953l 953, as amended by the Coronavirus Aid, Relief, and Economic Security Act, and as further amended by the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act (Economic Aid Act) (as amended from time to time, the “"PPP”"), in a principal amount not to exceed an $85,400.00 (such loan, the "Borrower PPP Loan") from a lender pa1ticipating in the PPP (the "PPP Lender"), (b) a loan in a principal amount not to be exceed $0.00 from the Guarantor, who has obtained or plans to obtain such Small Business Loan under the PPP from the PPP Lender in a principal amount not to exceed the amount approved by the Small Business Administration (such loan, the "Guarantor PPP Loan"), or (c) a loan in a principal amount not to exceed $0.00 from the Manager, who has obtained or plans to obtain such amountSmall Business Loan under the PPP from the PPP Lender in a principal amount not to exceed the amount approved by the Small Business Administration (such loan, the “"Manager PPP Loan”) from a lender participating in the PPP that is acceptable to "; any of the Borrower (PPP Loan, the “Guarantor PPP Lender”Loan or the Manager PPP Loan, as applicable, shall be referred to herein as the "PPP Loan"). In connection therewith and as a result of the COVID-19 pandemic, the Borrower has Credit Patties have requested that the Lender: (i) consent to the incurrence by the Borrower and/or its Subsidiaries Credit Parties of the PPP Loan; and (ii) consent to the Borrower using PPP Loan, with the understanding that the Credit Patties shall use the proceeds of the PPP Loan solely in accordance with and for the limited purposes set forth in the terms, provisions and guidelines of the PPP; and (iii) waive any requirement under the Loan Agreement that the Credit Parties prepay the Loans with the Net Cash Proceeds of the incurrence of the PPP Loan. Subject to the satisfaction of the terms and conditions set forth herein, the Lender is willing to do so, on the terms and subject to the conditions set forth herein. Notwithstanding anything to the contrary contained in the Loan Agreement or the other Loan Documents, in reliance on the representations, warranties, covenants and agreements contained herein, the Borrower and the Lender hereby agree as follows:
(a) So long as the Borrower at all times comply with the PPP Conditions (as defined herein), the Lender hereby consents to the Borrower and/or its Subsidiaries applying for, obtaining and incurring the PPP Loan from the PPP Lender.
(b) The foregoing consent of the Lender is expressly subject to and conditioned on the continuing satisfaction of the following conditions, covenants and agreements (collectively, the “PPP Conditions”): (A) the principal amount of the PPP Loan shall not exceed the amount approved by the Small Business Administration; (B) the PPP Loan shall at all times be unsecured; (C) the Borrower shall use the proceeds of the PPP Loan solely in accordance with and for the limited purposes set forth in the terms, provisions and guidelines of the PPP; (D) the Borrower shall comply with all of the terms and guidelines of the PPP with respect to the PPP Loan; (E) the Borrower shall use its best efforts to ensure that the PPP Loan shall be forgiven in accordance with the PPP; (F) all information provided by the Borrower to the PPP Lender, the Small Business Administration or other applicable Government Authority or otherwise under or in connection with the PPP Loan shall be true in all material respects; and (G) the Borrower covenants and agrees that (x) the Borrower shall comply with the PPP Conditions, and (y) the Borrower shall upon receipt thereof, promptly (and in any event within three (3) Business Days) provide the Lender with copies of any correspondence from the PPP Lender, the Small Business Administration or any other applicable Government Authority with respect to the PPP Loan following the PPP Lender’s making the PPP Loan available to the Borrower (including any notices of defaults thereunder, any requirement of Borrower or any affiliate or any shareholder, member or partner of any of the foregoing to make any payment on the PPP Loan and the forgiveness of all or any portion of the PPP Loan, and including any notice which would cause any portion of the PPP Loan to be a Non-Qualifying Portion pursuant to clause (d) below).
(c) Without limiting any other provision or requirement of this Agreement, the Borrower and the Lender hereby agree that (i) the PPP Loan shall constitute Indebtedness of the Borrower for purposes of the Loan Agreement and the other Loan Documents, other than for purposes of determining (A) compliance with any financial covenants contained in the Loan Agreement, (B) any financial ratio used in connection with any basket or incurrence test contained in the Loan Documents, and (C) determining the interest rate applicable to the Loans (except for, in each case, any Non-Qualifying Portion referenced in clause (d) below), and (ii) any portion of the PPP Loan which is forgiven shall be disregarded in the calculation of Net Operating Income for all purposes, including, without limitation, calculating financial covenants, basket levels, pricing and other items (including affirmative and negative covenants) governed by reference to Net Operating Income.
(d) Notwithstanding anything to the contrary contained in clause (c) above, to the extent all or any portion of the PPP Loan cannot reasonably be expected to be forgiven in accordance with the PPP or the Borrower or any of its Subsidiaries receives notice from the PPP Lender, the Small Business Administration or any Government Authority that all or any portion of the PPP Loan will not be forgiven (any such portion, a “Non-Qualifying Portion”), such Non-Qualifying Portion shall constitute Indebtedness for all purposes of the Loan Agreement and the other Loan Documents, including those purposes set forth in clauses (c)(i)(A), (B), and (C) above.
(e) The limited consent set forth in this Section (i) shall be a one-time consent effective only as to the PPP Loan to be made on or about the date hereof and (ii) shall not be deemed to modify or affect the obligations of the Borrower to comply with each and every obligation, covenant, duty or agreement under the Loan Documents (as amended hereby, as the case may be) to which such Person is party from and after the date hereof. The Borrower agrees that the limited consent set forth in this Section shall be limited to the precise meaning of the words as written therein and shall not be deemed to prejudice any right or remedy that the Lender may now have or may in the future have under or in connection with the Loan Agreement or any other Loan Document other than with respect to the matters for which the limited consent set forth in this Section have been provided. The limited consent set forth in this Section shall not alter, affect, release or prejudice in any way any of the Obligations which constitutes a valid and subsisting obligation of the Borrower owed to the Lender under the Loan Agreement that is not subject to any credits, offsets, defenses, claims, counterclaims or adjustments of any kind. This Agreement shall not be construed as establishing a course of conduct on the part of the Lender upon which the Borrower may rely at any time in the future. The Borrower expressly waives any right to assert any claim to such effect at any time.
Appears in 1 contract
Sources: Limited Consent and Waiver Agreement (Lodging Fund REIT III, Inc.)
Paycheck Protection Program. As a result of the COVID-19 pandemic, the Borrower has (a) informed the Lender that the Borrower and/or its Subsidiaries desire desired to participate in and obtain a Small Business Loan on or about April 17, 2020 under the federal Paycheck Protection Program provided in Section 7(a) of the Small Business Act of 1953, as amended by the Coronavirus Aid, Relief, and Economic Security Act (as amended from time to time, the “PPP”), in a principal amount not to exceed an amount to be approved by the Small Business Administration (such loan in such amount, the “PPP Loan”) from a lender participating in the PPP that is acceptable to the Borrower (the “PPP Lender”). In connection therewith and as a result of the COVID-19 pandemic, the Borrower has requested that the Lender: (i) consent to the incurrence by the Borrower and/or its Subsidiaries of the PPP Loan; and (ii) consent to the Borrower using the proceeds of the PPP Loan solely in accordance with and for the limited purposes set forth in the terms, provisions and guidelines of the PPP. Subject to the satisfaction of the terms and conditions set forth herein, the The Lender is willing has agreed to do so, on the terms and subject to the conditions set forth herein. Notwithstanding anything to the contrary contained in the Loan Agreement or the other Loan Documents, in reliance on the representations, warranties, covenants following terms and agreements contained herein, the Borrower and the Lender hereby agree as followsconditions:
(a) So long as the Borrower at all times comply with the PPP Conditions (as defined herein), the Lender hereby consents to the Borrower and/or its Subsidiaries applying for, obtaining and incurring the PPP Loan from the PPP Lender.
(b) The foregoing consent of the Lender is expressly subject to and conditioned on the continuing satisfaction of the following conditions, covenants and agreements (collectively, the “PPP Conditions”): (A) the principal amount of the PPP Loan shall not exceed the amount approved by the Small Business Administration; (B) the PPP Loan shall at all times be unsecured; (C) the Borrower shall use the proceeds of the PPP Loan solely in accordance with and for the limited purposes set forth in the terms, provisions and guidelines of the PPP; (D) the Borrower shall comply with all of the terms and guidelines of the PPP with respect to the PPP Loan; (E) the Borrower shall use its best efforts to ensure that the PPP Loan shall be forgiven in accordance with the PPP; (F) all information provided by the Borrower to the PPP Lender, the Small Business Administration or other applicable Government Authority or otherwise under or in connection with the PPP Loan shall be true in all material respects; and (G) the Borrower covenants and agrees that (x) the Borrower shall comply with the PPP Conditions, and (y) the Borrower shall upon receipt thereof, promptly (and in any event within three (3) Business Days) provide the Lender with copies of any correspondence from the PPP Lender, the Small Business Administration or any other applicable Government Authority with respect to the PPP Loan following the PPP Lender’s making the PPP Loan available to the Borrower (including any notices of defaults thereunder, any requirement of Borrower or any affiliate or any shareholder, member or partner of any of the foregoing to make any payment on the PPP Loan and the forgiveness of all or any portion of the PPP Loan, and including any notice which would cause any portion of the PPP Loan to be a Non-Qualifying Portion pursuant to clause (d) below).
(c) Without limiting any other provision or requirement of this Agreement, the The Borrower and the Lender hereby agree that (i) the PPP Loan shall constitute Indebtedness of the Borrower for purposes of the Loan this Agreement and the other Loan Documents, other than for purposes of determining (A) compliance with any financial covenants contained in the Loan this Agreement, (B) any financial ratio used in connection with any basket or incurrence test contained in the Loan Documents, and (C) determining the interest rate applicable to the Loans (except for, in each case, any Non-Qualifying Portion referenced in clause (d) below), and (ii) any portion of the PPP Loan which is forgiven shall be disregarded in the calculation of Net Operating Income for all purposes, including, without limitation, calculating financial covenants, basket levels, pricing and other items (including affirmative and negative covenants) governed by reference to Net Operating Income.
(d) Notwithstanding anything to the contrary contained in clause (c) above, to the extent all or any portion of the PPP Loan cannot reasonably be expected to be forgiven in accordance with the PPP or the Borrower or any of its Subsidiaries receives notice from the PPP Lender, the Small Business Administration or any Government Authority that all or any portion of the PPP Loan will not be forgiven (any such portion, a “Non-Qualifying Portion”), such Non-Qualifying Portion shall constitute Indebtedness for all purposes of the Loan this Agreement and the other Loan Documents, including those purposes set forth in clauses (c)(i)(A), (B), and (C) above.
(e) The limited consent set forth in this Section (i) shall be a one-time consent effective only as to the PPP Loan to be made on or about the date hereof and (ii) shall not be deemed to modify or affect the obligations of the Borrower to comply with each and every obligation, covenant, duty or agreement under the Loan Documents (as amended hereby, as the case may be) to which such Person is party from and after the date hereof. The Borrower agrees that the limited consent set forth in this Section shall be limited to the precise meaning of the words as written therein and shall not be deemed to prejudice any right or remedy that the Lender may now have or may in the future have under or in connection with the Loan Agreement or any other Loan Document other than with respect to the matters for which the limited consent set forth in this Section have been provided. The limited consent set forth in this Section shall not alter, affect, release or prejudice in any way any of the Obligations which constitutes a valid and subsisting obligation of the Borrower owed to the Lender under the Loan Agreement that is not subject to any credits, offsets, defenses, claims, counterclaims or adjustments of any kind. This Agreement shall not be construed as establishing a course of conduct on the part of the Lender upon which the Borrower may rely at any time in the future. The Borrower expressly waives any right to assert any claim to such effect at any time.”
Appears in 1 contract
Paycheck Protection Program. As a result of the adverse impact of the COVID-19 pandemicpandemic on the Borrower's business, the Borrower has plans to obtain (a) informed the Lender that the Borrower and/or its Subsidiaries desire to participate in and obtain a Small Business Loan under the federal Paycheck Protection Program provided in Section 7(a) of the Small Business Act of 1953, as amended by the Coronavirus Aid, Relief, and Economic Security Act, and as further amended by the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act (Economic Aid Act) (as amended from time to time, the “"PPP”"), in a principal amount not to exceed an $117,800.00 (such loan, the "Borrower PPP Loan") from a lender participating in the PPP (the "PPP Lender"), (b) a loan in a principal amount not to be exceed $0.00 from the Guarantor, who has obtained or plans to obtain such Small Business Loat1 under the PPP from the PPP Lender in a principal amount not to exceed the amount approved by the Small Business Administration (such loan, the "Guarantor PPP Loan"), or (c) a loan in a principal amount not to exceed $0.00 from the Manager, who has obtained or plans to obtain such amountSmall Business Loan under the PPP from the PPP Lender in a principal amount not to exceed the amount approved by the Small Business Administration (such loan, the “"Manager PPP Loan”) from a lender participating in the PPP that is acceptable to "; any of the Borrower (PPP Loan, the “Guarantor PPP Lender”Loan or the Manager PPP Loan, as applicable, shall be referred to herein as the "PPP Loan"). In connection therewith and as a result of the COVID-19 pandemic, the Borrower has Credit Parties have requested that the Lender: :
(i) consent to the incurrence by the Borrower and/or its Subsidiaries Credit Parties of the PPP Loan; and (ii) consent to the Borrower using PPP Loan, with the understanding that the Credit Patties shall use the proceeds of the PPP Loan solely in accordance with and for the limited purposes set forth in the terms, provisions and guidelines of the PPP; and (iii) waive any requirement under the Loan Agreement that the Credit Patties prepay the Loans with the Net Cash Proceeds of the incurrence of the PPP Loan. Subject to the satisfaction of the terms and conditions set forth herein, the Lender is willing to do so, on the terms and subject to the conditions set forth herein. Notwithstanding anything to the contrary contained in the Loan Agreement or the other Loan Documents, in reliance on the representations, warranties, covenants and agreements contained herein, the Borrower and the Lender hereby agree as follows:
(a) So long as the Borrower at all times comply with the PPP Conditions (as defined herein), the Lender hereby consents to the Borrower and/or its Subsidiaries applying for, obtaining and incurring the PPP Loan from the PPP Lender.
(b) The foregoing consent of the Lender is expressly subject to and conditioned on the continuing satisfaction of the following conditions, covenants and agreements (collectively, the “PPP Conditions”): (A) the principal amount of the PPP Loan shall not exceed the amount approved by the Small Business Administration; (B) the PPP Loan shall at all times be unsecured; (C) the Borrower shall use the proceeds of the PPP Loan solely in accordance with and for the limited purposes set forth in the terms, provisions and guidelines of the PPP; (D) the Borrower shall comply with all of the terms and guidelines of the PPP with respect to the PPP Loan; (E) the Borrower shall use its best efforts to ensure that the PPP Loan shall be forgiven in accordance with the PPP; (F) all information provided by the Borrower to the PPP Lender, the Small Business Administration or other applicable Government Authority or otherwise under or in connection with the PPP Loan shall be true in all material respects; and (G) the Borrower covenants and agrees that (x) the Borrower shall comply with the PPP Conditions, and (y) the Borrower shall upon receipt thereof, promptly (and in any event within three (3) Business Days) provide the Lender with copies of any correspondence from the PPP Lender, the Small Business Administration or any other applicable Government Authority with respect to the PPP Loan following the PPP Lender’s making the PPP Loan available to the Borrower (including any notices of defaults thereunder, any requirement of Borrower or any affiliate or any shareholder, member or partner of any of the foregoing to make any payment on the PPP Loan and the forgiveness of all or any portion of the PPP Loan, and including any notice which would cause any portion of the PPP Loan to be a Non-Qualifying Portion pursuant to clause (d) below).
(c) Without limiting any other provision or requirement of this Agreement, the Borrower and the Lender hereby agree that (i) the PPP Loan shall constitute Indebtedness of the Borrower for purposes of the Loan Agreement and the other Loan Documents, other than for purposes of determining (A) compliance with any financial covenants contained in the Loan Agreement, (B) any financial ratio used in connection with any basket or incurrence test contained in the Loan Documents, and (C) determining the interest rate applicable to the Loans (except for, in each case, any Non-Qualifying Portion referenced in clause (d) below), and (ii) any portion of the PPP Loan which is forgiven shall be disregarded in the calculation of Net Operating Income for all purposes, including, without limitation, calculating financial covenants, basket levels, pricing and other items (including affirmative and negative covenants) governed by reference to Net Operating Income.
(d) Notwithstanding anything to the contrary contained in clause (c) above, to the extent all or any portion of the PPP Loan cannot reasonably be expected to be forgiven in accordance with the PPP or the Borrower or any of its Subsidiaries receives notice from the PPP Lender, the Small Business Administration or any Government Authority that all or any portion of the PPP Loan will not be forgiven (any such portion, a “Non-Qualifying Portion”), such Non-Qualifying Portion shall constitute Indebtedness for all purposes of the Loan Agreement and the other Loan Documents, including those purposes set forth in clauses (c)(i)(A), (B), and (C) above.
(e) The limited consent set forth in this Section (i) shall be a one-time consent effective only as to the PPP Loan to be made on or about the date hereof and (ii) shall not be deemed to modify or affect the obligations of the Borrower to comply with each and every obligation, covenant, duty or agreement under the Loan Documents (as amended hereby, as the case may be) to which such Person is party from and after the date hereof. The Borrower agrees that the limited consent set forth in this Section shall be limited to the precise meaning of the words as written therein and shall not be deemed to prejudice any right or remedy that the Lender may now have or may in the future have under or in connection with the Loan Agreement or any other Loan Document other than with respect to the matters for which the limited consent set forth in this Section have been provided. The limited consent set forth in this Section shall not alter, affect, release or prejudice in any way any of the Obligations which constitutes a valid and subsisting obligation of the Borrower owed to the Lender under the Loan Agreement that is not subject to any credits, offsets, defenses, claims, counterclaims or adjustments of any kind. This Agreement shall not be construed as establishing a course of conduct on the part of the Lender upon which the Borrower may rely at any time in the future. The Borrower expressly waives any right to assert any claim to such effect at any time.
Appears in 1 contract
Sources: Limited Consent and Waiver Agreement (Lodging Fund REIT III, Inc.)