Collection and Allocation of Payments and Other Amounts. (a) The Lessee has agreed pursuant to Section 5.8 and otherwise in accordance with the terms of this Agreement to pay to (i) the Bank any and all Rent (excluding Excepted Payments) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to any Person and (ii) each Person as appropriate the Excepted Payments. (b) Payments and other amounts received by the Bank from time to time in accordance with the terms of subparagraph (a) shall be applied and allocated by the Bank first, to the payment of interest on the Loans and thereafter the principal of the Loans which is due and payable on such date; second, to the payment of accrued Holder Yield with respect to the Holder Advances and thereafter the portion of the Holder Advances which is due on such date; and third, if no Default or Event of Default is in effect, any excess shall be paid to such Person or Persons as the Lessee may designate. (c) Upon the termination of the Commitments and the payment in full of the Loans and all other amounts owing by the Owner Trustee hereunder or under any Credit Document and the payment in full of all amounts owing to the Holder and the Owner Trustee under the Trust Agreement, any moneys remaining with the Bank shall be returned to the Lessee or such other Person or Persons as the Lessee may designate. In the event of an Acceleration it is agreed that, prior to the application and allocation of amounts received by the Bank in the order described in Section 8.7(b) above, any such amounts shall first be applied and allocated to the payment of (i) any and all sums advanced by the Bank in order to preserve the Collateral or to preserve its Lien thereon, (ii) the expenses of retaking, holding, preparing for sale or lease, selling or otherwise disposing or realizing on the Collateral, or of any exercise by the Bank of its rights under the Security Documents, together with reasonable attorneys' fees and expenses and court costs and (iii) any and all other amounts reasonably owed to the Bank under or in connection with the transactions contemplated by the Operative Agreements (including without limitation any accrued and unpaid administration fees).
Appears in 1 contract
Collection and Allocation of Payments and Other Amounts. (a) The Lessee has and the Construction Agent have agreed pursuant to Section 5.8 and otherwise in accordance with the terms of this Participation Agreement to pay to (i) the Bank Agent any and all Rent (excluding Excepted Payments) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to any Person the Lessor or the Owner Trustee and (ii) each Person as appropriate the Excepted Payments. Promptly after receipt, the Agent shall apply and allocate, in accordance with the terms of this Section 10.7, such amounts received from the Lessee or the Construction Agent and all other payments, receipts and other consideration of any kind whatsoever received by the Agent pursuant to the Security Agreement or otherwise received by the Agent, the Holders or any of the Lenders in connection with the Collateral, the Security Documents or any of the other Operative Agreements.
(b) Payments and other amounts received by the Bank Agent from time to time in accordance with the terms of subparagraph (a) shall be applied and allocated as follows:
(i) Any such payment or amount identified as or deemed to be Basic Rent shall be applied and allocated by the Bank Agent first, ratably to the Lenders and the Holders for application and allocation to the payment of interest on the Loans and thereafter the principal of the Loans which is due and payable on such date; second, date and to the payment of accrued Holder Yield with respect to the Holder Advances and thereafter the portion of the Holder Advances which is due on such date; and thirdsecond, if no Default or Event of Default is in effect, any excess shall be paid to such Person or Persons as the Lessee may designate; provided, that if a Default or Event of Default is in effect, such excess (if any) shall instead be held by the Agent until the earlier of (I) the first date thereafter on which no Default or Event of Default shall be in effect (in which case such payments or returns shall then be made to such other Person or Persons as the Lessee may designate) and (II) the Maturity Date or the Expiration Date, as the case may be (or, if earlier, the date of any Acceleration), in which case such amounts shall be applied and allocated in the manner contemplated by Section 10.7(b)(iv). The Agent shall distribute to (x) the Lenders, ratably based on their respective Commitments, all proceeds of Interest Payment Loans which shall be applied and allocated to the interest on the Loans due and payable prior to the Rent Commencement Date and (y) the Holders, based on their respective Holder Commitments, all proceeds of Holder Advances made with respect to the aggregate amount of Holder Yield on the Holder Advances prior to the Rent Commencement Date.
(ii) If on any date the Agent or the Lessor shall receive any amount in respect of (A) any Casualty or Condemnation pursuant to Sections 15.1(a) or 15.1(g) of the Lease (excluding any payments in respect thereof which are payable to the Lessee in accordance with the Lease), or (B) the Termination Value in connection with the delivery of a Termination Notice pursuant to Article XVI of the Lease, or (C) the Termination Value in connection with the exercise of the Purchase Option under Section 20.1 of the Lease or the exercise of the option of the Lessor to transfer the Properties to the Lessee pursuant to Section 20.3 of the Lease, or (D) any payment required to be made or elected to be made by the Construction Agent to the Lessor pursuant to the terms of the Agency Agreement, then in each case, the Lessor shall be required to pay such amount received (1) if no Acceleration has occurred, to prepay the principal balance of the Loans and the Holder Advances, on a pro rata basis, a portion of such amount to be distributed to the Lenders and the Holders, such amount computed (x) in the case of the Loans, based on the ratio of the Loans to the aggregate Property Cost and (y) in the case of the Holder Advances, based on the ratio of the Holder Advances to the aggregate Property Cost or (2) if an Acceleration has occurred, to apply and allocate the proceeds respecting Sections 10.7(b)(ii)(A) - (D) in accordance with Section 10.7(b)(iii) hereof.
(iii) Subject to Section 10.7(c), an amount equal to any payment identified as proceeds of the sale (or lease upon the exercise of remedies) of the Properties or any portion thereof, whether pursuant to Article XXII of the Lease or the exercise of remedies under the Security Documents or otherwise, the execution of remedies set forth in Section 17.6 of the Lease and any payment in respect of excess wear and tear pursuant to Section 22.3 of the Lease (whether such payment relates to a period before or after the Construction Period Termination Date) shall be applied and allocated by the Agent first, ratably to the payment of the principal and interest of the Tranche B Loans then outstanding, second, ratably to the payment to the Holders of an amount not to exceed the outstanding principal balance of all Holder Advances plus all outstanding Holder Yield with respect to such outstanding Holder Advances, third, to the extent such amount exceeds the maximum amount to be returned pursuant to the foregoing provisions of this paragraph (iii), ratably to the payment of the principal and interest of the Tranche A Loans then outstanding, fourth, to any and all other amounts owing under the Operative Agreements to the Lenders under the Tranche B Loans, fifth, to any and all other amounts owing under the Operative Agreements to the Holders, sixth, to any and all other amounts owing under the Operative Agreements to the Lenders under the Tranche A Loans, and seventh, to the extent moneys remain after application and allocation pursuant to clauses first through sixth above, to the Owner Trustee for application and allocation to any and all other amounts owing to the Holders or the Owner Trustee and as the Owner Trustee and the Holders shall determine; provided, where no Event of Default shall exist and be continuing and a prepayment is made for any reason with respect to less than the full amount of the outstanding principal amount of the Loans and the outstanding Holder Advances, the proceeds shall be applied and allocated ratably to the Lenders and to the Holders based on the ratio of the outstanding principal balance of the Loans and the outstanding Holder Advances to the aggregate of such outstanding amounts of the Loans and the Holder Advances.
(iv) Subject to Section 10.7(c), an amount equal to (A) any such payment identified as a payment pursuant to Section 22.1(b) of the Lease (or otherwise) of the Maximum Residual Guarantee Amount (and any such lesser amount as may be required by Section 22.1(b) of the Lease) in respect of the Properties and (B) any other amount payable upon any exercise of remedies after the occurrence of an Event of Default not covered by Section 10.7(b)(i) or (iii) above (including without limitation any amount received in connection with an Acceleration which does not represent proceeds from the sale or liquidation of the Properties), shall be applied and allocated by the Agent first, ratably, to the payment of the principal and interest balance of Tranche A Loans then outstanding, second, ratably to the payment of the principal and interest balance of the Tranche B Loans then outstanding, third, ratably to the payment of the principal balance of all Holder Advances plus all outstanding Holder Yield with respect to such outstanding Holder Advances, fourth, to the payment of any other amounts owing to the Lenders hereunder or under any of the other Operative Agreement, and fifth, to the extent moneys remain after application and allocation pursuant to clauses first through fourth above, to the Owner Trustee for application and allocation to Holder Advances and Holder Yield and any other amounts owing to the Holders or the Owner Trustee as the Owner Trustee and the Holders shall determine.
(v) An amount equal to any such payment identified as Supplemental Rent shall be applied and allocated by the Agent to the payment of any amounts then owing to the Agent, the Lenders, the Holders and the other parties to the Operative Agreements (or any of them) (other than any such amounts payable pursuant to the preceding provisions of this Section 10.7(b)) as shall be determined by the Agent in its reasonable discretion; provided, however, that Supplemental Rent received upon the exercise of remedies after the occurrence and continuance of an Event of Default in lieu of or in substitution of the Maximum Residual Guarantee Amount or as a partial payment thereon shall be applied and allocated as set forth in Section 10.7(b)(iv).
(vi) The Agent in its reasonable judgment shall identify the nature of each payment or amount received by the Agent and apply and allocate each such amount in the manner specified above.
(c) Upon the termination of the Commitments and the payment in full of the Loans and all other amounts owing by the Owner Trustee hereunder or under any other Credit Document and the payment in full of all amounts owing to the Holder Holders and the Owner Trustee under the Trust Agreement, any moneys remaining with the Bank Agent shall be returned to the Lessee Owner Trustee or such other Person or Persons as the Lessee Owner Trustee may designate. In the event of an Acceleration it is agreed that, prior to the application and allocation of amounts received by the Bank Agent in the order described in Section 8.7(b10.7(b) above, any such amounts shall first be applied and allocated to the payment of (i) any and all sums advanced by the Bank Agent in order to preserve the Collateral or to preserve its Lien thereonsecurity interest therein, (ii) the expenses of retaking, holding, preparing for sale or lease, selling or otherwise disposing or realizing on the Collateral, or of any exercise by the Bank Agent of its rights under the Security Documents, together with reasonable attorneys' fees and expenses and court costs and (iii) any and all other amounts reasonably owed to the Bank Agent under or in connection with the transactions contemplated by the Operative Agreements (including without limitation any accrued and unpaid administration fees).
Appears in 1 contract
Samples: Participation Agreement (Performance Food Group Co)
Collection and Allocation of Payments and Other Amounts. (a) The Lessee Each Credit Party has agreed pursuant to Section 5.8 5.7 and otherwise in accordance with the terms of this Agreement to pay to (i) the Bank Agent any and all Rent (excluding Excepted Payments) and any and all other amounts of any kind or type under any of the Operative Agreements Agreements, in each case, due and owing or payable to any Person Financing Party and (ii) each Person as appropriate the Excepted Payments. Promptly after receipt, the Agent shall apply and allocate, in accordance with the terms of this Section 8.7, such amounts received from any Credit Party and all other payments, receipts and other consideration of any kind whatsoever received by the Agent or any Lessor Party in connection with the Collateral, the Security Documents or any of the other Operative Agreements. Ratable distributions among the Lessor Parties under this Section 8.7 shall be made based on the ratio of the various Lessor Party’s outstanding Lessor Advances to the aggregate Property Cost. If, and to the extent that both Eurodollar Lessor Advances and ABR Lessor Advances are outstanding at a point in time at which payments and other amounts are to be applied and allocated pursuant to this Section 8.7, then such payments and amounts shall first be applied and allocated to the ABR Lessor Advances and next to the Eurodollar Lessor Advances.
(b) Payments and other amounts received by the Bank Agent from time to time in accordance with the terms of subparagraph (a) shall be applied and allocated as follows (subject in all cases to Sections 8.7(c)(i), (ii) and (iii)):
(i) Any such payment or amount identified as or deemed to be Basic Rent, any amount in respect of a Casualty referenced in the last two sentences of Section 3.4(b) of the Agency Agreement or any amount in respect of a Condemnation referenced the last two sentences of Section 3.5(b) of the Agency Agreement shall be applied and allocated by the Bank Agent: first, ratably to the Lessor Parties for application and allocation to the payment of interest on accrued Lessor Yield with respect to the Loans Lessor Advances and thereafter ratably to the principal of the Loans outstanding Lessor Advances which is are due and payable on such date; second, to the payment of accrued Holder Yield with respect to the Holder Advances and thereafter the portion of the Holder Advances which is due on such date; and third, if no a Default or Event of Default is in effect, such excess (if any) shall be held by the Agent until the earlier of (I) the first date thereafter on which no Default or Event of Default shall be in effect (in which case such payments or returns shall then be made pursuant to “third” below) and (II) the Expiration Date (or, if earlier, the date of any acceleration), in which case such amounts shall be applied and allocated in the manner contemplated by Section 8.7(b)(iv); and third, any excess shall be paid to such Person or Persons as the Lessee may designateLessee.
(cii) Upon the termination Except as otherwise specified pursuant to (A) Section 3.4(b) of the Commitments and the payment in full Agency Agreement, Section 3.5(b) of the Loans and all other Agency Agreement or Section 15.1(a) of the Lease (regarding amounts owing by the Owner Trustee hereunder or under any Credit Document and the payment in full of all amounts owing payable to the Holder Construction Agent or the Lessee, as applicable) and the Owner Trustee under the Trust Agreement, any moneys remaining with the Bank shall be returned to the Lessee or such other Person or Persons as the Lessee may designate. In the event of an Acceleration it is agreed that, prior to the application and (B) Section 8.7(b)(i) (regarding allocation of amounts received by the Bank referenced in the order described last two sentences of Section 3.4(b) of the Agency Agreement and the last two sentences of Section 3.5(b) of the Agency Agreement), if (other than as specified in the foregoing subsection (A) or (B)) on any date the Agent or the Lessor shall receive any amount in respect of any Casualty or Condemnation pursuant to Section 8.7(b3.4 or 3.5 of the Agency Agreement or Section 15.1(a) aboveof the Lease, any then such amounts amount shall first be applied and allocated to the payment of (iin accordance with Section 8.7(b)(iii)(x) any and all sums advanced by the Bank in order to preserve the Collateral or to preserve its Lien thereon, (ii) the expenses of retaking, holding, preparing for sale or lease, selling or otherwise disposing or realizing on the Collateral, or of any exercise by the Bank of its rights under the Security Documents, together with reasonable attorneys' fees and expenses and court costs and (iii) any and all other amounts reasonably owed to the Bank under or in connection with the transactions contemplated by the Operative Agreements (including without limitation any accrued and unpaid administration fees)hereof.
Appears in 1 contract
Collection and Allocation of Payments and Other Amounts. (a) The Lessee has agreed pursuant to Section 5.8 Promptly after receipt, the Agent shall, in its reasonable judgment identify the nature of, and otherwise apply and allocate, in accordance with the terms of this Agreement to pay to (i) the Bank Section 8.7, all amounts received from any and all Rent (excluding Excepted Payments) and any Credit Party and all other amounts payments, receipts and other consideration of any kind whatsoever received by the Agent pursuant to the Security Agreement or type under otherwise received by the Agent, the Holders or any of the Lenders in connection with the Collateral, the Security Documents or any of the other Operative Agreements due Agreements. Ratable distributions among the Lenders and owing or payable the Holders pursuant to any Person this Section 8.7 shall be made based on (in the case of the Lenders) the ratio of the outstanding Loan to the Advance and (iiin the case of the Holders) each Person the ratio of the outstanding Holder Advance to the Advance. Ratable distributions among the X-0, X-0, or B Lenders shall be made based on the ratio of the individual Lender's Commitment to the aggregate of all the X-0, X-0, or B Lenders' Commitments, as appropriate applicable. Ratable distributions among the Excepted PaymentsHolders pursuant to this Section 8.7 shall be based on the ratio of the individual Holder's Holder Commitment to the aggregate of all the Holders' Holder Commitments.
(b) Payments and other All amounts received by the Bank Agent from time to time in accordance with the terms of subparagraph Section 8.7(a) shall be applied and allocated as follows:
(ai) Any Basic Rent shall be applied and allocated by the Bank first, Agent ratably to the Lenders and the Holders for application and allocation to the payment of interest on the Loans Loan and thereafter the principal of the Loans Loan which is due and payable on such date; second, date and to the payment of accrued Holder Yield with respect to the Holder Advances Advance and thereafter the portion of the Holder Advances Advance which is due on such date; and thirdand
(ii) If on any date the Agent or the Lessor shall receive any amount in respect of (A) any Casualty or Condemnation pursuant to Sections 15.1(a) or 15.1(g) of the Lease (excluding any payments in respect thereof which are payable to the Lessee in accordance with the Lease), or (B) the delivery of a Termination Notice pursuant to Article XVI of the Lease, or (C) the exercise of the Purchase Option under Section 20.1 of the Lease or the exercise of the option of the Lessor to transfer the Properties to the Lessee pursuant to Section 20.3 of the Lease, then in each case, the Lessor shall pay such amount received (1) if no Default Acceleration has occurred, to the Lenders and the Holders, ratably, toward the prepayment of the principal balance of the Loan and the Holder Advance or (2) if an Acceleration has occurred, in accordance with Section 8.7(b)(iii).
(A) the payment to the A-1 Lenders of any other amounts owed to them under the Operative Agreements, fifth, ratably to the payment to the Holders of the ----- outstanding Holder Yield and then the outstanding balance of the Holder Advance, sixth, ratably to the payment to the Holders of any other amounts owed to the ----- Holders under the Operative Agreements, and seventh, to the extent moneys remain ------- after application and allocation pursuant to clauses first through sixth above, to the Owner Trustee for application and allocation to any and all other amounts owing to the Holders or the Owner Trustee and as the Holders shall determine; provided where no Event of Default exists and is in effectcontinuing and a prepayment is -------- made for any reason with respect to less than the full amount of the outstanding principal amount of the Loan and the outstanding Holder Advance, any excess the proceeds shall be paid applied and allocated ratably to the Lenders and to the Holders.
(B) Subject to Section 8.7(c), an amount equal to any payment identified as proceeds of the sale or other disposition (or lease upon the exercise of remedies) of the Lessee Collateral Properties or any portion thereof, or any other Collateral under the Subordinate Security Agreement, whether pursuant to the exercise of remedies under the Security Documents or otherwise, shall be applied and allocated by the Agent first, ratably to the ----- payment to the A-2 Lenders and the B Lenders of the outstanding interest and then principal of the A-2 Notes and the B Notes, second, ratably to the payment ------ to the A-2 Lenders and the B Lenders of any other amounts owed to them under the Operative Agreements, third, ratably to the payment to the Holders of the ----- outstanding Holder Yield and then the outstanding balance of the Holder Advance, fourth, ratably to the payment to the Holders of any other amounts owed to the ------ Holders under the Operative Agreements, fifth, ratably to the payment to the A-1 ----- Lenders of the outstanding interest and then principal of the A-1 Notes, sixth, ----- ratably to the payment to the A-1 Lenders of any other amounts owed to them under the Operative Agreements, and seventh, to the extent moneys remain after ------- application and allocation pursuant to clauses first through sixth above, to the Owner Trustee for application and allocation to any and all other amounts owing to the Holders or the Owner Trustee and as the Holders shall determine; provided -------- where no Event of Default exists and is continuing and a prepayment is made for any reason with respect to less than the full amount of the outstanding principal amount of the Loan and the outstanding Holder Advance, the proceeds shall be applied and allocated ratably to the Lenders and to the Holders.
(A) Subject to Section 8.7(c), an amount equal to any payment identified as a payment of the Maximum Residual Guarantee Amount (and any lesser amount as may be required by Section 22.1(b) of the Lease) in respect of the Properties, shall be applied and allocated by the Agent first, ratably, ----- to the payment of the principal and interest balances of the A-1 Notes and the A-2 Notes then outstanding, second, ratably to the payment of the principal and ------ interest balances of the B Notes then outstanding, third, ratably to the payment ----- of the principal balance of the Holder Advance plus all outstanding Holder Yield with respect to such Person outstanding Holder Advance, fourth to the payment of any ------ other amounts owing to the Lenders hereunder or Persons under any of the other Operative Agreement, and fifth, to the extent moneys remain after application and ----- allocation pursuant to clauses first through fourth above, to the Owner Trustee ----- ------ for application and allocation to any other amounts owing to the Holders or the Owner Trustee, as the Lessee may designateHolders shall determine.
(B) Subject to Section 8.7(c), an amount equal to (1) any other amount payable upon any exercise of remedies after the occurrence of an Event of Default not covered by Sections 8.7(b)(i) or 8.7(b)(iii) above (including without limitation any amount received in connection with an Acceleration which does not represent proceeds from the sale or liquidation of the Properties), and (2) any other amount payable by any Guarantor pursuant to Section 6B, shall be applied and allocated by the Agent first, ratably, to the payment of the principal and ----- interest balances of the A-2 Notes and the B Notes then outstanding, second, ------ ratably to the payment of the principal and interest balances of the A-1 Notes then outstanding, third, ratably to the payment of the principal balance of the ----- Holder Advance plus all outstanding Holder Yield with respect to such outstanding Holder Advance, fourth to the payment of any other amounts owing to ------ the Lenders hereunder or under any of the other Operative Agreement, and fifth, ----- to the extent moneys remain after application and allocation pursuant to clauses first through fourth above, to the Owner Trustee for application and allocation ----- ------ to any other amounts owing to the Holders or the Owner Trustee, as the Holders shall determine.
(v) A payment of Supplemental Rent shall be applied and allocated by the Agent to the payment of any amounts then owing to the Agent, the Lenders, the Holders and the other parties to the Operative Agreements (or any of them) (other than any amounts payable pursuant to the preceding provisions of this Section 8.7(b)), as the Agent shall determine in its reasonable discretion; provided, however, that Supplemental Rent received upon the exercise of remedies -------- ------- after the occurrence and continuance of an Event of Default in lieu of or in substitution of the Maximum Residual Guarantee Amount or as a partial payment thereon shall be applied and allocated as set forth in Section 8.7(b)(iv).
(vi) [not used]
(c) Upon the termination of the Commitments and the payment in full of the Loans Loan and all other amounts owing by the Owner Trustee hereunder or under any Credit Document and the payment in full of all amounts owing to the Holder Holders and the Owner Trustee under the Trust Agreement, any moneys remaining with the Bank Agent shall be returned to the Lessee Owner Trustee or such other Person or Persons as the Lessee Holders may designatedesignate for application and allocation to any and all other amounts owing to the Holders or the Owner Trustee and as the Holders shall determine. In the event of If an Acceleration it is agreed thathas occurred, prior to then before the application and allocation of amounts received by the Bank Agent in the order described in Section 8.7(b) above, any such amounts shall first be applied and allocated to the payment of (i) any and all sums advanced by the Bank Agent in order to preserve the Collateral or to preserve its Lien thereon, ; (ii) the expenses of retaking, holding, preparing for sale or lease, selling or otherwise disposing or realizing on the Collateral, or of any exercise by the Bank Agent of its rights under the Security Documents, together with reasonable attorneys' fees and expenses and court costs costs; and (iii) any and all other amounts reasonably owed to the Bank Agent under or in connection with the transactions contemplated by the Operative Agreements (including without limitation any accrued and unpaid administration fees).
(d) [not used]
(e) [not used]
Appears in 1 contract
Collection and Allocation of Payments and Other Amounts. (a) The Lessee Each Credit Party has agreed pursuant to Section 5.8 5.7 and otherwise in accordance with the terms of this Agreement to pay to (i) the Bank Agent any and all Rent (excluding Excepted Payments) and any and all other amounts of any kind or type under any of the Operative Agreements Agreements, in each case, due and owing or payable to any Person Financing Party and (ii) each Person as appropriate the Excepted Payments. Promptly after receipt, the Agent shall apply and allocate, in accordance with the terms of this Section 8.7, such amounts received from any Credit Party and all other payments, receipts and other consideration of any kind whatsoever received by the Agent or any Lessor Party in connection with the Collateral, the Security Documents or any of the other Operative Agreements. Ratable distributions among the Lessor Parties under this Section 8.7 shall be made based on the ratio of the various Lessor Party’s outstanding Lessor Advances to the aggregate Property Cost. If, and to the extent that both XXXX Xxxxxx Advances and XXX Xxxxxx CHAR1\1917164v13 Advances are outstanding at a point in time at which payments and other amounts are to be applied and allocated pursuant to this Section 8.7, then such payments and amounts shall first be applied and allocated to the ABR Lessor Advances and next to the SOFR Lessor Advances.
(b) Payments and other amounts received by the Bank Agent from time to time in accordance with the terms of subparagraph (a) shall be applied and allocated as follows (subject in all cases to Sections 8.7(c)(i), (ii) and (iii)):
(i) Any such payment or amount identified as or deemed to be Basic Rent, any amount in respect of a Casualty referenced in the last two sentences of Section 3.4(b) of the Agency Agreement or any amount in respect of a Condemnation referenced the last two sentences of Section 3.5(b) of the Agency Agreement shall be applied and allocated by the Bank Agent: first, ratably to the Lessor Parties for application and allocation to the payment of interest on accrued Lessor Yield with respect to the Loans Lessor Advances and thereafter ratably to the principal of the Loans outstanding Lessor Advances which is are due and payable on such date; second, to the payment of accrued Holder Yield with respect to the Holder Advances and thereafter the portion of the Holder Advances which is due on such date; and third, if no a Default or Event of Default is in effect, such excess (if any) shall be held by the Agent until the earlier of (I) the first date thereafter on which no Default or Event of Default shall be in effect (in which case such payments or returns shall then be made pursuant to “third” below) and (II) the Expiration Date (or, if earlier, the date of any acceleration), in which case such amounts shall be applied and allocated in the manner contemplated by Section 8.7(b)(iv); and third, any excess shall be paid to such Person or Persons as the Lessee may designateLessee.
(cii) Upon the termination Except as otherwise specified pursuant to (A) Section 3.4(b) of the Commitments and the payment in full Agency Agreement, Section 3.5(b) of the Loans and all other Agency Agreement or Section 15.1(a) of the Lease (regarding amounts owing by the Owner Trustee hereunder or under any Credit Document and the payment in full of all amounts owing payable to the Holder Construction Agent or the Lessee, as applicable) and the Owner Trustee under the Trust Agreement, any moneys remaining with the Bank shall be returned to the Lessee or such other Person or Persons as the Lessee may designate. In the event of an Acceleration it is agreed that, prior to the application and (B) Section 8.7(b)(i) (regarding allocation of amounts received by the Bank referenced in the order described last two sentences of Section 3.4(b) of the Agency Agreement and the last two sentences of Section 3.5(b) of the Agency Agreement), if (other than as specified in the foregoing subsection (A) or (B)) on any date the Agent or the Lessor shall receive any amount in respect of any Casualty or Condemnation pursuant to Section 8.7(b3.4 or 3.5 of the Agency Agreement or Section 15.1(a) aboveof the Lease, any then such amounts amount shall first be applied and allocated to the payment of (iin accordance with Section 8.7(b)(iii)(x) any and all sums advanced by the Bank in order to preserve the Collateral or to preserve its Lien thereon, (ii) the expenses of retaking, holding, preparing for sale or lease, selling or otherwise disposing or realizing on the Collateral, or of any exercise by the Bank of its rights under the Security Documents, together with reasonable attorneys' fees and expenses and court costs and (iii) any and all other amounts reasonably owed to the Bank under or in connection with the transactions contemplated by the Operative Agreements (including without limitation any accrued and unpaid administration fees)hereof.
Appears in 1 contract
Samples: Fourth Amendment to Certain Operative Agreements (Big Lots Inc)
Collection and Allocation of Payments and Other Amounts. (a) The Lessee has agreed pursuant to Section 5.8 and otherwise in accordance with the terms of this Agreement Each Credit Party agrees to pay to (i) the Bank Agent any and all Rent (excluding Excepted Payments) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to any Person and (ii) each Person as appropriate the Excepted Payments. Promptly after receipt, the Agent shall apply and allocate, in accordance with the terms of this Section 8.7, such amounts received from any Credit Party and all other payments, receipts and other consideration of any kind whatsoever received by the Agent pursuant to the Security Agreement or otherwise received by the Agent, the Holders or any of the Lenders in connection with the Collateral, the Security Documents or any of the other Operative Agreements.
(b) Payments and other amounts received by the Bank Agent from time to time in accordance with the terms of subparagraph (a) shall be applied and allocated as follows:
(i) Any such payment or amount identified as or deemed to be Basic Rent shall be applied and allocated by the Bank Agent first, ratably to the Lenders and the Holders for application and allocation to the payment of interest on the Loans and thereafter the principal of the Loans which is due and payable on such date; second, date and to the payment of accrued Holder Yield with respect to the Holder Advances and thereafter the portion of the Holder Advances which is due on such date; and thirdsecond, if no Default or Event of Default is in effect, any excess shall be paid to such Person or Persons as the Lessee may designate; provided, that if a Default or Event of Default is in effect, such excess (if any) shall instead be held by the Agent until the earlier of (I) the first date thereafter on which no Default or Event of Default shall be in effect (in which case such payments or returns shall then be made to such other Person or Persons as the Lessee may designate) and (II) the Maturity Date or the Expiration Date, as the case may be (or, if earlier, the date of any Acceleration), in which case such amounts shall be applied and allocated in the manner contemplated by Section 8.7(b)(iv).
(ii) If on any date the Agent or the Lessor shall receive any amount in respect of (A) any Casualty or Condemnation pursuant to Sections 15.1(a) or 15.1(g) of the Lease (excluding any payments in respect thereof which are payable to the Lessee in accordance with the Lease), or (B) the Termination Value in connection with the delivery of a Termination Notice pursuant to Article XVI of the Lease, or (C) the Termination Value in connection with the exercise of the Purchase Option under Section 20.1 of the Lease or the exercise of the option of the Lessor to transfer the Properties to the Lessee pursuant to Section 20.3 of the Lease, or (D) any payment required to be made or elected to be made by the Construction Agent to the Lessor pursuant to the terms of the Agency Agreement, then in each case, the Lessor shall be required to pay such amount received (1) if no Acceleration has occurred, to prepay the principal balance of the Loans and the Holder Advances, on a pro rata basis, a portion of such amount to be distributed to the Lenders and the Holders or (2) if an Acceleration has occurred, to apply and allocate the proceeds respecting Sections 8.7(b)(ii)(A) through 8.7(b)(ii)(D) in accordance with Section 8.7(b)(iii) hereof.
(iii) Subject to Section 8.7(c), an amount equal to any payment identified as proceeds of the sale or other disposition (or lease upon the exercise of remedies) of the Properties or any portion thereof, whether pursuant to Article XXII of the Lease or the exercise of remedies under the Security Documents or otherwise, the execution of remedies set forth in the Lease and any payment in respect of excess wear and tear pursuant to Section 22.3 of the Lease (whether such payment relates to a period before or after the Construction Period Termination Date) shall be applied and allocated by the Agent first, ratably to the payment of the principal and interest of the Tranche B Loans then outstanding, second, ratably to the payment to the Holders of the outstanding principal balance of all Holder Advances plus all outstanding Holder Yield with respect to such outstanding Holder Advances, third, to the extent such amount exceeds the maximum amount to be returned pursuant to the foregoing provisions of this paragraph (iii), ratably to the payment of the principal and interest of the Tranche A Loans then outstanding, fourth, to any and all other amounts owing under the Operative Agreements to the Lenders under the Tranche B Loans, fifth, to any and all other amounts owing under the Operative Agreements to the Holders, sixth, to any and all other amounts owing under the Operative Agreements to the Lenders under the Tranche A Loans, and seventh, to the extent moneys remain after application and allocation pursuant to clauses first through sixth above, to the Owner Trustee for application and allocation to any and all other amounts owing to the Holders or the Owner Trustee and as the Holders shall determine; provided, where no Event of Default shall exist and be continuing and a prepayment is made for any reason with respect to less than the full amount of the outstanding principal amount of the Loans and the outstanding Holder Advances, the proceeds shall be applied and allocated ratably to the Lenders and to the Holders.
(iv) Subject to Section 8.7(c), an amount equal to (A) any such payment identified as a payment pursuant to Section 22.1(b) of the Lease (or otherwise) of the Maximum Residual Guarantee Amount (and any such lesser amount as may be required by Section 22.1(b) of the Lease) in respect of the Properties and (B) any other amount payable upon any exercise of remedies after the occurrence of an Event of Default not covered by Sections 8.7(b)(i) or 8.7(b)(iii) above (including without limitation any amount received in connection with an Acceleration which does not represent proceeds from the sale or liquidation of the Properties) and (C) any other amount payable by any Guarantor pursuant to Section 6B shall be applied and allocated by the Agent first, ratably, to the payment of the principal and interest balance of Tranche A Loans then outstanding, second, ratably to the payment of the principal and interest balance of the Tranche B Loans then outstanding, third, ratably to the payment of the principal balance of all Holder Advances plus all outstanding Holder Yield with respect to such outstanding Holder Advances, fourth, to the payment of any other amounts owing to the Lenders hereunder or under any of the other Operative Agreement, and fifth, to the extent moneys remain after application and allocation pursuant to clauses first through fourth above, to the Owner Trustee for application and allocation to Holder Advances and Holder Yield and any other amounts owing to the Holders or the Owner Trustee as the Holders shall determine.
(v) An amount equal to any such payment identified as Supplemental Rent shall be applied and allocated by the Agent to the payment of any amounts then owing to the Agent, the Lenders, the Holders and the other parties to the Operative Agreements (or any of them) (other than any such amounts payable pursuant to the preceding provisions of this Section 8.7(b)) as shall be determined by the Agent in its reasonable discretion; provided, however, that Supplemental Rent received upon the exercise of remedies after the occurrence and continuance of an Event of Default in lieu of or in substitution of the Maximum Residual Guarantee Amount or as a partial payment thereon shall be applied and allocated as set forth in Section 8.7(b)(iv).
(vi) The Agent in its reasonable judgment shall identify the nature of each payment or amount received by the Agent and apply and allocate each such amount in the manner specified above.
(c) Upon the termination of the Commitments and the payment in full of the Loans and all other amounts owing by the Owner Trustee hereunder or under any Credit Document and the payment in full of all amounts owing to the Holder Holders and the Owner Trustee under the Trust Agreement, any moneys remaining with the Bank Agent shall be returned to the Lessee Owner Trustee or such other Person or Persons as the Lessee Holders may designatedesignate for application and allocation to any and all other amounts owing to the Holders or the Owner Trustee and as the Holders shall determine. In the event of an Acceleration it is agreed that, prior to the application and allocation of amounts received by the Bank Agent in the order described in Section 8.7(b) above, any such amounts shall first be applied and allocated to the payment of (i) any and all sums advanced by the Bank Agent in order to preserve the Collateral or to preserve its Lien thereon, (ii) the expenses of retaking, holding, preparing for sale or lease, selling or otherwise disposing or realizing on the Collateral, or of any exercise by the Bank Agent of its rights under the Security Documents, together with reasonable attorneys' fees and expenses and court costs and (iii) any and all other amounts reasonably owed to the Bank Agent under or in connection with the transactions contemplated by the Operative Agreements (including without limitation any accrued and unpaid administration fees).
Appears in 1 contract
Collection and Allocation of Payments and Other Amounts. (a) The Lessee Each Credit Party has agreed pursuant to Section 5.8 5.7 and otherwise in accordance with the terms of this Agreement to pay to (i) the Bank Agent any and all Rent (excluding Excepted Payments) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to any Person and (ii) each Person as appropriate the Excepted Payments. Promptly after receipt, the Agent shall apply and allocate, in accordance with the terms of this Section 8.7, such amounts received from any Credit Party and all other payments, receipts and other consideration of any kind whatsoever received by any Secured Party in connection with the Collateral, the Security Documents or any of the other Operative Agreements. Ratable distributions among the Mortgage Lenders, the Credit Lenders and the Lessor under this Section 8.7 shall be made based on (in the case of the Mortgage Lenders) the ratio of the outstanding Mortgage Loans to the Property Cost, (in the case of the Credit Lenders) the ratio of the outstanding Credit Loans to the Property Cost, and (in the case of the Lessor) the ratio of the outstanding Lessor Advances to the Property Cost.
(b) Payments and other amounts received by the Bank Agent from time to time in accordance with the terms of subparagraph (a) shall be applied and allocated as follows (subject in all cases to Sections 8.7(c)(i), (ii) and (iii)):
(i) Any such payment or amount identified as or deemed to be Basic Rent, any amount in respect of a Casualty referenced in the last sentence of Section 3.4(b) of the Agency Agreement or any amount in respect of a Condemnation referenced the last sentence of Section 3.5(b) of the Agency Agreement shall be applied and allocated by the Bank Agent: first, ratably to the Credit Lenders, the Mortgage Lenders and the Lessor for application and allocation to the payment of interest on the Loans and to the payment of accrued Lessor Yield with respect to the Lessor Advances and thereafter ratably to the principal of the Loans and the portion of the Lessor Advances which is due and payable on such date; second, to the payment of accrued Holder Yield with respect to the Holder Advances and thereafter the portion of the Holder Advances which is due on such date; and third, if no a Lease Default or Lease Event of Default is in effect, such excess (if any) shall be held by the Agent until the earlier of (A) the first date thereafter on which no Lease Default or Lease Event of Default shall be in effect (in which case such payments or returns shall then be made pursuant to “third” below) and (B) the Expiration Date (or, if earlier, the date of any Acceleration), in which case such amounts shall be applied and allocated in the manner contemplated by Section 8.7(b)(iv); third, ratably to the Hedge Banks for application and allocation to the payment obligations then owing under the Secured Hedge Agreements; and fourth, any excess shall be paid to such Person or Persons as the Lessee may designateLessee.
(cii) Upon Except as otherwise specified pursuant to the termination last sentence of Section 3.4(b) or the last sentence of Section 3.5(b) of the Commitments Agency Agreement, if on any date the Agent or the Lessor shall receive any amount in respect of any Casualty or Condemnation pursuant to Section 15.1(a) or 15.1(g) of the Lease or Section 3.4 or 3.5 of the Agency Agreement, then such amount shall be applied and allocated in accordance with Section 8.7(b)(iii)(x) hereof.
(iii) (x) An amount equal to any payment identified as proceeds of the sale or other disposition (or lease upon the exercise of remedies) of the Property or any portion thereof (provided, in connection with the exercise of the Sale Option, an allocation shall be made pursuant to Section 21.1(d) of the Lease with the Lessee retaining the amounts allocable to it under such Section 21.1(d) and the other amounts thereunder being allocated pursuant to the first paragraph of this Section 8.7(b) and thereafter to the following provisions of this Section 8.7(b)(iii)(x)), pursuant to the exercise of remedies under the Security Documents or otherwise, or pursuant to the exercise of remedies set forth in the Agency Agreement (provided, in connection with the exercise of remedies under Section 5.3(b) of the Agency Agreement regarding an Agency Agreement Event of Default other than a Full Recourse Event of Default, an allocation shall be made initially under such Section 5.3(b) with the Construction Agent retaining the amounts allocable to it under such Section 5.3(b) and the other amounts thereunder being allocated pursuant to the first paragraph of this Section 8.7(b) and thereafter to the following provisions of this Section 8.7(b)(iii)(x)) or pursuant to the exercise of remedies set forth in the Lease (provided, in connection with the exercise of remedies under Section 17.6 of the Lease, an allocation shall be made initially under Section 17.6(c) of the Lease with the Lessee retaining the amounts allocable to it under such Section 17.6(c) and the other amounts thereunder being allocated pursuant to the first paragraph of this Section 8.7(b) and thereafter to the following provisions of this Section 8.7(b)(iii)(x)) and any payment in full respect of excess wear and tear pursuant to Section 21.3 of the Lease, in each case shall be applied and allocated by the Agent: first, ratably to the payment of interest on the Mortgage Loans, then to the principal balance of the Mortgage Loans and then to all other amounts owing by under the Owner Trustee hereunder or under any Credit Document and Operative Agreements to the Mortgage Lenders then outstanding; second, to the payment in full to the Lessor of the Lessor Yield with respect to the Lessor Advances, then to the principal balance of the Lessor Advances and then to all other amounts owing under the Operative Agreements to the Holder and the Owner Trustee under the Trust AgreementLessor then outstanding; third, any moneys remaining with the Bank shall be returned to the Lessee or such other Person or Persons as the Lessee may designate. In the event of an Acceleration it is agreed that, prior to the application and allocation of amounts received by the Bank in the order described in Section 8.7(b) above, any such amounts shall first be applied and allocated ratably to the payment of (i) any and all sums advanced by the Bank in order to preserve the Collateral or to preserve its Lien thereon, (ii) the expenses of retaking, holding, preparing for sale or lease, selling or otherwise disposing or realizing interest on the CollateralCredit Loans, or then to the principal balance of any exercise by the Bank of its rights under the Security Documents, together with reasonable attorneys' fees Credit Loans and expenses and court costs and (iii) any and then to all other amounts reasonably owed to the Bank owing under or in connection with the transactions contemplated by the Operative Agreements (including without limitation any accrued and unpaid administration fees).to the Credit Lenders then outstanding;
Appears in 1 contract
Collection and Allocation of Payments and Other Amounts. (a) The Lessee Each Credit Party has agreed pursuant to Section 5.8 5.7 and otherwise in accordance with the terms of this Agreement to pay to (i) the Bank Agent any and all Rent (excluding Excepted Payments) and any and all other amounts of any kind or type under any of the Operative Agreements Agreements, in each case, due and owing or payable to any Person Financing Party and (ii) each Person as appropriate the Excepted Payments.. Promptly after receipt, the Agent shall apply and allocate, in accordance with the terms of this Section 8.7, such amounts received from any Credit Party and all other payments, receipts and other consideration of any kind whatsoever received by the Agent or any Lessor Party in connection with the Collateral, the Security Documents or any of the other Operative Agreements. Ratable distributions among the Lessor Parties under this Section 8.7 shall be made based on the ratio of the various Lessor Party’s outstanding Lessor Advances to the aggregate Property Cost. If, and to the extent that both XXXX Xxxxxx Advances and XXX Xxxxxx
(b) Payments and other amounts received by the Bank Agent from time to time in accordance with the terms of subparagraph (a) shall be applied and allocated as follows (subject in all cases to Sections 8.7(c)(i), (ii) and (iii)): (i) Any such payment or amount identified as or deemed to be Basic Rent, any amount in respect of a Casualty referenced in the last two sentences of Section 3.4(b) of the Agency Agreement or any amount in respect of a Condemnation referenced the last two sentences of Section 3.5(b) of the Agency Agreement shall be applied and allocated by the Bank Agent: first, ratably to the Lessor Parties for application and allocation to the payment of interest on accrued Lessor Yield with respect to the Loans Lessor Advances and thereafter ratably to the principal of the Loans outstanding Lessor Advances which is are due and payable on such date; second, to the payment of accrued Holder Yield with respect to the Holder Advances and thereafter the portion of the Holder Advances which is due on such date; and third, if no a Default or Event of Default is in effect, such excess (if any) shall be held by the Agent until the earlier of (I) the first date thereafter on which no Default or Event of Default shall be in effect (in which case such payments or returns shall then be made pursuant to “third” below) and (II) the Expiration Date (or, if earlier, the date of any acceleration), in which case such amounts shall be applied and allocated in the manner contemplated by Section 8.7(b)(iv); and third, any excess shall be paid to such Person or Persons as the Lessee may designateLessee.
(cii) Upon the termination Except as otherwise specified pursuant to (A) Section 3.4(b) of the Commitments and the payment in full Agency Agreement, Section 3.5(b) of the Loans and all other Agency Agreement or Section 15.1(a) of the Lease (regarding amounts owing by the Owner Trustee hereunder or under any Credit Document and the payment in full of all amounts owing payable to the Holder Construction Agent or the Lessee, as applicable) and the Owner Trustee under the Trust Agreement, any moneys remaining with the Bank shall be returned to the Lessee or such other Person or Persons as the Lessee may designate. In the event of an Acceleration it is agreed that, prior to the application and (B) Section 8.7(b)(i) (regarding allocation of amounts received by the Bank referenced in the order described last two sentences of Section 3.4(b) of the Agency Agreement and the last two sentences of Section 3.5(b) of the Agency Agreement), if (other than as specified in the foregoing subsection (A) or (B)) on any date the Agent or the Lessor shall receive any amount in respect of any Casualty or Condemnation pursuant to Section 8.7(b3.4 or 3.5 of the Agency Agreement or Section 15.1(a) aboveof the Lease, any then such amounts amount shall first be applied and allocated to the payment of (iin accordance with Section 8.7(b)(iii)(x) any and all sums advanced by the Bank in order to preserve the Collateral or to preserve its Lien thereon, (ii) the expenses of retaking, holding, preparing for sale or lease, selling or otherwise disposing or realizing on the Collateral, or of any exercise by the Bank of its rights under the Security Documents, together with reasonable attorneys' fees and expenses and court costs and hereof. (iii) any and all other amounts reasonably owed to the Bank under or in connection with the transactions contemplated by the Operative Agreements (including without limitation any accrued and unpaid administration fees).
Appears in 1 contract
Samples: Fourth Amendment to Certain Operative Agreements (Big Lots Inc)
Collection and Allocation of Payments and Other Amounts. (a) The Lessee Each Credit Party has agreed pursuant to Section 5.8 5.7 and otherwise in accordance with the terms of this Agreement to pay to (i) the Bank Agent any and all Rent (excluding Excepted Payments) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to any Person and (ii) each Person as appropriate the Excepted Payments. Promptly after receipt, the Agent shall apply and allocate, in accordance with the terms of this Section 8.7, such amounts received from any Credit Party and all other payments, receipts and other consideration of any kind whatsoever received by any Secured Party in connection with the Collateral, the Security Documents or any of the other Operative Agreements. Ratable distributions among the Mortgage Lenders, the Credit Lenders and the Lessor under this Section 8.7 shall be made based on (in the case of the Mortgage Lenders) the ratio of the outstanding Mortgage Loans to the Property Cost, (in the case of the Credit Lenders) the ratio of the outstanding Credit Loans to the Property Cost, and (in the case of the Lessor) the ratio of the outstanding Lessor Advances to the Property Cost.
(b) Payments and other amounts received by the Bank Agent from time to time in accordance with the terms of subparagraph (a) shall be applied and allocated as follows (subject in all cases to Sections 8.7(c)(i), (ii) and (iii)):
(i) Any such payment or amount identified as or deemed to be Basic Rent, any amount in respect of a Casualty referenced in the last sentence of Section 3.4(b) of the Agency Agreement or any amount in respect of a Condemnation referenced the last sentence of Section 3.5(b) of the Agency Agreement shall be applied and allocated by the Bank Agent: first, ratably to the Credit Lenders, the Mortgage Lenders and the Lessor for application and allocation to the payment of interest on the Loans and to the payment of accrued Lessor Yield with respect to the Lessor Advances and thereafter ratably to the principal of the Loans and the portion of the Lessor Advances which is due and payable on such date; second, to the payment of accrued Holder Yield with respect to the Holder Advances and thereafter the portion of the Holder Advances which is due on such date; and third, if no a Lease Default or Lease Event of Default is in effect, such excess (if any) shall be held by the Agent until the earlier of (A) the first date thereafter on which no Lease Default or Lease Event of Default shall be in effect (in which case such payments or returns shall then be made pursuant to “third” below) and (B) the Expiration Date (or, if earlier, the date of any Acceleration), in which case such amounts shall be applied and allocated in the manner contemplated by Section 8.7(b)(iv); third, ratably to the Hedge Banks for application and allocation to the payment obligations then owing under the Secured Hedge Agreements; and fourth, any excess shall be paid to such Person or Persons as the Lessee may designateLessee.
(cii) Upon Except as otherwise specified pursuant to the termination last sentence of Section 3.4(b) or the last sentence of Section 3.5(b) of the Commitments and Agency Agreement, if on any date the payment Agent or the Lessor shall receive any amount in full respect of any Casualty or Condemnation pursuant to Section 15.1(a) or 15.1(g) of the Loans and all other amounts owing by Lease or Section 3.4 or 3.5 of the Owner Trustee hereunder or under any Credit Document and the payment in full of all amounts owing to the Holder and the Owner Trustee under the Trust Agency Agreement, any moneys remaining with the Bank then such amount shall be returned to the Lessee or such other Person or Persons as the Lessee may designate. In the event of an Acceleration it is agreed that, prior to the application and allocation of amounts received by the Bank in the order described in Section 8.7(b) above, any such amounts shall first be applied and allocated to the payment of (iin accordance with Section 8.7(b)(iii)(x) any and all sums advanced by the Bank in order to preserve the Collateral or to preserve its Lien thereon, (ii) the expenses of retaking, holding, preparing for sale or lease, selling or otherwise disposing or realizing on the Collateral, or of any exercise by the Bank of its rights under the Security Documents, together with reasonable attorneys' fees and expenses and court costs and (iii) any and all other amounts reasonably owed to the Bank under or in connection with the transactions contemplated by the Operative Agreements (including without limitation any accrued and unpaid administration fees)hereof.
Appears in 1 contract
Collection and Allocation of Payments and Other Amounts. (a) The Lessee Each Credit Party has agreed pursuant to Section 5.8 5.7 and otherwise in accordance with the terms of this Agreement to pay to (i) the Bank Agent any and all Rent (excluding Excepted Payments) and any and all other amounts of any kind or type under any of the Operative Agreements Agreements, in each case, due and owing or payable to any Person Financing Party and (ii) each Person as appropriate the Excepted Payments. Promptly after receipt, the Agent shall apply and allocate, in accordance with the terms of this Section 8.7, such amounts received from any Credit Party and all other payments, receipts and other consideration of any kind whatsoever received by the Agent or any Lessor Party in connection with the Collateral, the Security Documents or any of the other Operative Agreements. Ratable distributions among the Lessor Parties under this Section 8.7 shall be made based on the ratio of the various Lessor Party’s outstanding Lessor Advances to the aggregate Property Cost. If, and to the extent that both Eurodollar Lessor Advances and ABR Lessor Advances are outstanding at a point in time at which payments and other amounts are to be applied and allocated pursuant to this Section 8.7, then such payments and amounts shall first be applied and allocated to the ABR Lessor Advances and next to the Eurodollar Lessor Advances.
(b) Payments and other amounts received by the Bank Agent from time to time in accordance with the terms of subparagraph (a) shall be applied and allocated as follows (subject in all cases to Sections 8.7(c)(i), (ii) and (iii)):
(i) Any such payment or amount identified as or deemed to be Basic Rent, any amount in respect of a Casualty referenced in the last two sentences of Section 3.4(b) of the Agency Agreement or any amount in respect of a Condemnation referenced the last two sentences of Section 3.5(b) of the Agency Agreement shall be applied and allocated by the Bank Agent: first, ratably to the Lessor Parties for application and allocation to the payment of interest on accrued Lessor Yield with respect to the Loans Lessor Advances and thereafter ratably to the principal of the Loans outstanding Lessor Advances which is are due and payable on such date; second, to the payment of accrued Holder Yield with respect to the Holder Advances and thereafter the portion of the Holder Advances which is due on such date; and third, if no a Default or Event of Default is in effect, such excess (if any) shall be held by the Agent until the earlier of (I) the first date thereafter on which no Default or Event of Default shall be in effect (in which case such payments or returns shall then be made pursuant to “third” below) and (II) the Expiration Date (or, if earlier, the date of any acceleration), in which case such amounts shall be applied and allocated in the manner contemplated by Section 8.7(b)(iv); and third, any excess shall be paid to such Person or Persons as the Lessee may designateLessee.
(cii) Upon the termination Except as otherwise specified pursuant to (A) Section 3.4(b) of the Commitments and the payment in full Agency Agreement, Section 3.5(b) of the Loans and all other Agency Agreement or Section 15.1(a) of the Lease (regarding amounts owing by the Owner Trustee hereunder or under any Credit Document and the payment in full of all amounts owing payable to the Holder Construction Agent or the Lessee, as applicable) and the Owner Trustee under the Trust Agreement, any moneys remaining with the Bank shall be returned to the Lessee or such other Person or Persons as the Lessee may designate. In the event of an Acceleration it is agreed that, prior to the application and (B) Section 8.7(b)(i) (regarding allocation of amounts received by the Bank referenced in the order described last two sentences of Section 3.4(b) of the Agency Agreement and the last two sentences of Section 3.5(b) of the Agency Agreement), if (other than as specified in the foregoing subsection (A) or (B)) on any date the Agent or the Lessor shall receive any amount in respect of any Casualty or Condemnation pursuant to Section 8.7(b3.4 or 3.5 of the Agency Agreement or Section 15.1(a) aboveof the Lease, any then such amounts amount shall first be applied and allocated in accordance with Section 8.7(b)(iii)(x) hereof.
(iii) (x) An amount equal to the proceeds from the RVI Policy and an amount equal to any payment identified as proceeds of the sale or other disposition (or lease upon the exercise of remedies) of the Property or any portion thereof, including pursuant to (i) any and all sums advanced by the Bank exercise of remedies under the Security Documents (other than proceeds in order an amount equal to preserve the Collateral or Termination Value which shall be allocated pursuant to preserve its Lien thereonSection 8.7(b)(iv)), (ii) the expenses exercise of retakingremedies set forth in the Agency Agreement, holding, preparing for sale or lease, selling or otherwise disposing or realizing on the Collateral, or of any exercise by the Bank of its rights under the Security Documents, together with reasonable attorneys' fees and expenses and court costs and (iii) the exercise of remedies set forth in the Lease, or (iv) any payment in respect of excess wear and all other amounts reasonably owed tear pursuant to Section 21.3 of the Lease, in each case shall be applied and allocated (subject to the Bank under or following provisos) by the Agent, in accordance with clauses first, second and third of this Section 8.7(b)(iii)(x); provided, prior to such allocation in accordance with clauses first, second and third of this Section 8.7(b)(iii)(x), allocations shall be made in connection with the transactions contemplated by exercise of remedies under clause (y) of the second paragraph of Section 5.3(c) of the Agency Agreement, (a) with the Construction Agent retaining the amounts allocable to it under the waterfall provisions of clause (y) of such second paragraph of such Section 5.3(c) and the other amounts thereunder being allocated pursuant to the first paragraph of this Section 8.7(b) (which first paragraph precedes Section 8.7(b)(i)) and thereafter to the following provisions of this Section 8.7(b)(iii)(x); and (b) with the Agent retaining in favor of the Lessor Parties the one percent (1%) interest as referenced in such second paragraph of such Section 5.3(c) regarding any sale or other disposition of the Lessor’s interest in the Property to the extent occurring on or prior to the second annual anniversary of the date Lessor receives notice of, or otherwise has knowledge of, the Agency Agreement Event of Default; provided, further, in connection with the exercise of remedies under the third paragraph of Section 5.3(c) of the Agency Agreement or Section 5.3(d) of the Agency Agreement, there shall be no allocation pursuant to clause third below and in substitution for such clause third, an allocation shall be made ratably to the Lessor Parties based on their respective Lessor Advances outstanding immediately prior to the allocation of proceeds received pursuant to such third paragraph of such Section 5.3(c) or such Section 5.3(d), as applicable; and provided, prior to such allocation in accordance with clauses first, second and third of this Section 8.7(b)(iii)(x), allocations shall be made in connection with the exercise of remedies under Section 17.6 of the Lease, with the Lessee retaining the amounts allocable to it under such Section 17.6(c) and the other amounts thereunder being allocated pursuant to the first paragraph of this Section 8.7(b) (which first paragraph precedes Section 8.7(b)(i)) and thereafter to the following provisions of this Section 8.7(b)(iii)(x): first, ratably to the payment to the Lessor Parties of the Lessor Yield with respect to the Lessor Advances and then to the advance amount balance of the Lessor Advances; second, to the extent moneys remain after application and allocation pursuant to clause first above, to all other amounts owing under the Operative Agreements (including without limitation any accrued to the Lessor Parties then outstanding; and unpaid administration fees)third, to the extent moneys remain after application and allocation pursuant to clause first through second above, to the Lessee.
Appears in 1 contract
Samples: Operative Agreements (Big Lots Inc)
Collection and Allocation of Payments and Other Amounts. (a) The Lessee has agreed pursuant to Section 5.8 5.5 and otherwise in accordance with the terms of this Agreement to pay to (i) the Bank Agent any and all Rent (excluding Excepted PaymentsPayments and Supplemental Rent) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to any Person hereto and (ii) each Person as appropriate the Excepted PaymentsPayments and Supplemental Rent. Promptly after receipt, the Agent shall apply and allocate, in accordance with the terms of this Section 8.7, such amounts received from the Lessee and all other payments, receipts and other consideration of any kind whatsoever received by the Agent pursuant to the Security Agreement or otherwise received by the Agent, the Lessor or any of the Primary Financing Parties in connection with the Collateral, the Security Documents or any of the other Operative Agreements. Ratable distributions among the Primary Financing Parties under this Section 8.7 shall be made based on the ratio of the amounts outstanding under the Financing to the aggregate Property Cost. Ratable distributions among the Lenders under this Section 8.7 shall be made based on the ratio of the amounts outstanding under an individual Lender's Note to the aggregate of all amounts outstanding under all of the Lenders' Notes.
(b) Payments and other amounts received by the Bank Agent or Lessor from time to time in accordance with the terms of subparagraph (a) shall be applied and allocated as follows (subject in all cases to Section 8.7(c)):
(i) Any such payment or amount identified as or deemed to be Basic Rent shall be applied and allocated by the Bank Agent if no Default or Event of Default is in effect, first, ratably to the Primary Financing Parties for application and allocation to the payment of interest on the Loans and Lessor Yield on the Lessor Advance and thereafter the principal of the Loans and the principal amount of the Lessor Advance which is due and payable on such date; second, to any and all other amounts owing under the payment of accrued Holder Yield with respect Operative Agreements to the Holder Advances and thereafter the portion of the Holder Advances which is due on such datePrimary Financing Parties; and third, if no Default or Event of Default is in effect, any excess shall be paid to such Person or Persons as the Lessee may designate; provided, that if a Default or Event of Default is in effect, such amounts shall instead be held by the Agent until the earlier of (I) the first date thereafter on which no Default or Event of Default shall be in effect (in which case such payments or returns shall then be made to such other Person or Persons as the Lessee may designate) and (II) the Expiration Date (or, if earlier, the date of any Acceleration), in which case such amounts shall be applied and allocated in the manner contemplated by Section 8.7(b)(iv).
(ii) If on any date the Agent or the Lessor shall receive any amount in respect of (A) any Casualty or Condemnation pursuant to Sections 15.1(a) or 15.1(g) of the Lease (excluding any payments in respect thereof which are payable to the Lessee in accordance with the Lease), or (B) the Termination Value in connection with the delivery of a Termination Notice pursuant to Article XVI of the Lease, or (C) the Termination Value in connection with the exercise of the Purchase Option under Section 20.1 of the Lease or the exercise of the option of the Lessor to transfer the Properties to the Lessee pursuant to Section 20.3 of the Lease, then in each case, the Lessor shall be required to pay such amount received in accordance with Section 8.7(b)(iii) hereof; provided, that any excess shall be paid to the Lessee or its designee in accordance with Section 15.1 of the Lease.
(iii) An amount equal to any payment identified as proceeds of the sale or other disposition (or lease upon the exercise of remedies) of the Properties or any portion thereof, whether pursuant to Article XXII of the Lease or the exercise of remedies under the Security Documents or otherwise, the execution of remedies set forth in the Lease and any payment in respect of excess wear and tear pursuant to Section 22.3 of the Lease shall be applied and allocated by the Agent first, to the payment to the Lessor of the outstanding principal balance of all Lessor Advances plus all outstanding Lessor Yield with respect to such outstanding Lessor Advances, second, to any and all other amounts owing under the Operative Agreements to the Lessor, third, ratably to the payment of the principal and interest of the Loans then outstanding, fourth, to any and all other amounts owing under the Operative Agreements to the Lenders under the Loans, and fifth, to the extent moneys remain after application and allocation pursuant to clauses first through fourth above, to the Lessor for application and allocation to any and all other amounts owing to any Financing Party and as the Lessor shall determine.
(iv) An amount equal to (A) any such payment pursuant to Section 22.1(b) of the Lease (or otherwise) of the Maximum Residual Guarantee Amount (and any such lesser amount as may be required by Section 22.1(b) of the Lease) in respect of the Properties and (B) any other amount payable upon any exercise of remedies after the occurrence of an Event of Default not covered by Sections 8.7(b)(i) or 8.7(b)(iii) above (including without limitation any amount received in connection with an Acceleration which does not represent proceeds from the sale or liquidation of the Properties), shall be applied and allocated by the Agent first, ratably, to the payment of the principal and interest balance of Loans then outstanding, second, to the payment of any other amounts owing to the Lenders hereunder or under any of the other Operative Agreements, third, to the payment of the principal balance of all Lessor Advances plus all outstanding Lessor Yield with respect to such outstanding Lessor Advance, fourth, to the payment of any other amounts owing to the Lessor hereunder or under any of the other Operative Agreements, and fifth, to the extent moneys remain after application and allocation pursuant to clauses first through fourth above, to the Lessor for application and allocation to any other amounts owing to any Financing Party as the Lessor shall determine.
(v) An amount equal to any such payment identified as Supplemental Rent shall be applied and allocated by the Agent to the payment of any amounts then owing as Supplemental Rent to the Persons entitled thereto (other than any such amounts payable pursuant to the preceding provisions of this Section 8.7(b)) as shall be determined by the Agent in its reasonable discretion; provided, however, that Supplemental Rent received upon the exercise of remedies after the occurrence and continuance of an Event of Default in lieu of or in substitution of the Maximum Residual Guarantee Amount or as a partial payment thereon shall be applied and allocated as set forth in Section 8.7(b)(iv).
(vi) The Agent in its reasonable judgment shall identify the nature of each payment or amount received by the Agent and apply and allocate each such amount in the manner specified above.
(c) Upon the termination of the Commitments and the payment in full of the Loans Loans, the Lessor Advances and all other amounts then due and owing by the Owner Trustee Borrower hereunder or under any Credit Document and the payment in full of all other amounts then due and owing to the Holder Lenders, the Lessor, the Agent and the Owner Trustee under other Financing Parties pursuant to the Trust AgreementOperative Agreements, any moneys remaining with the Bank Agent shall be returned to the Lessee or such other Person or Persons as the Lessee may designateLessee. In the event of an Acceleration it It is agreed that, prior to the application and allocation of amounts received by the Bank Agent in the order described in Section 8.7(b) aboveabove or any distribution of money to the Lessee, any such amounts shall first be applied and allocated to the payment of (i) any and all sums advanced by the Bank Agent in order to preserve the Collateral or to preserve its Lien thereon, (ii) the expenses of retaking, holding, preparing for sale or lease, selling or otherwise disposing or realizing on the Collateral, or of any exercise by the Bank Agent of its rights under the Security Documents, together with reasonable attorneys' fees and expenses and court costs and (iii) any and all other amounts reasonably owed to the Bank Agent under or in connection with the transactions contemplated by the Operative Agreements (including without limitation any accrued and unpaid administration fees).
Appears in 1 contract
Samples: Participation Agreement (West Corp)
Collection and Allocation of Payments and Other Amounts. (a) The Lessee Each Credit Party has agreed pursuant to Section 5.8 5.10 and otherwise in accordance with the terms of this Agreement to pay to (i) the Bank Agent any and all Rent (excluding Excepted Payments) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable by the Lessee or any other Credit Party to any Person party hereto, and (ii) each Person Person, as appropriate appropriate, the Excepted Payments. Promptly after receipt, the Agent shall apply and allocate, in accordance with the terms of this Section 8.7, such amounts received from any Credit Party and all other payments, receipts and other consideration of any kind whatsoever received by the Agent pursuant to the Security Agreement or otherwise received by the Agent, the Lessor or any of the Primary Financing Parties in connection with the Collateral, the Security Documents or any of the other Operative Agreements. Ratable distributions among the Primary Financing Parties under this Section 8.7 shall be made based on the ratio of the amounts outstanding under the Notes to the aggregate Property Cost. Ratable distributions among the Tranche A Note Purchasers under this Section 8.7 shall be made based on the ratio of the amounts outstanding under an individual Tranche A Note Purchaser's Tranche A Note to the aggregate of all amounts outstanding under all of the Tranche A Note Purchasers' Tranche A Notes. Ratable distributions among the Tranche B Lenders under this Section 8.7 shall be made based on the ratio of the individual Tranche B Lender's Commitment for Tranche B Loans to the aggregate of all the Tranche B Lenders' Commitments for Tranche B Loans.
(b) Payments and other amounts received by the Bank Agent or the Lessor from time to time in accordance with the terms of subparagraph (a) shall be applied and allocated as follows (subject in all cases to Section 8.7(c)):
(i) Any such payment or amount identified as or deemed to be Basic Rent shall be applied and allocated by the Bank Agent if no Lease Default or Lease Event of Default is in effect, first, ratably to the Primary Financing Parties for ----- application and allocation to the payment of interest on the Loans Notes and thereafter the principal of the Loans Notes which is due and payable on such date; second, to any and all other amounts ------ owing under the payment of accrued Holder Yield with respect Operative Agreements to the Holder Advances and thereafter the portion of the Holder Advances which is due on such datePrimary Financing Parties; and third, any excess shall be paid to the Lessee or such ----- Person or Persons as the Lessee may designate; provided, that -------- if no a Lease Default or Lease Event of Default is in effect, such amounts shall instead be held by the Agent until the earlier of (I) the first date thereafter on which no Lease Default or Lease Event of Default shall be in effect (in which case such amounts shall be applied pursuant to this subparagraph (i) and (II) the Expiration Date, (or, if earlier, the date of any Acceleration), in which case such amounts shall be applied and allocated in the manner contemplated by Section 8.7(b)(iv).
(ii) If on any date the Agent or the Lessor shall receive any amount in respect of any Casualty, Condemnation or Environmental Violation pursuant to Sections 15.1(a) or 15.1(g) of the Lease (excluding any payments in respect thereof which are payable to the Lessee in accordance with the Lease) and such payment is in an amount less than the Termination Value at such time, the Lessor or the Agent, as the case may be, shall be required to pay such amount received in accordance with Section 8.7(b)(iii) hereof; provided, that -------- any excess shall be paid to Lessee or its designee in accordance with Section 15.1 of the Lease.
(iii) An amount equal to any payment identified as proceeds of the sale or other disposition (or lease upon the exercise of remedies) of the Property to a third party or any portion thereof, whether pursuant to Article XXII of the Lease or the exercise of remedies under the Security Documents or otherwise or the exercise of foreclosure remedies under the Lease, any payment in respect of excess wear and tear pursuant to Section 22.3 of the Lease (whether such payment relates to a period before or after the Construction Period Termination Date) shall be applied and allocated by the Agent first, ----- ratably to the payment of the principal and interest of the Tranche B Loans then outstanding, second, to any and all other ------ amounts owing under the Operative Agreements to the Tranche B Lenders under the Tranche B Loans, third, to the extent such ----- amount exceeds the maximum amount to be returned pursuant to the foregoing provisions of this paragraph (iii), ratably to the payment of the principal, interest and Make-Whole Amount, if any, on the Tranche A Notes then outstanding, fourth, to ------ any and all other amounts owing under the Operative Agreements to the Tranche A Note Purchasers under the Tranche A Notes, and fifth, to the extent moneys remain after application and ----- allocation pursuant to clauses first through fourth above, to ----- ------ the Lessor for application and allocation as the Lessor shall determine.
(iv) An amount equal to (A) any payment pursuant to Section 22.1(b) of the Lease (or otherwise) of the Maximum Residual Guarantee Amount in respect of the Property, (B) any other amount payable after the occurrence of an Event of Default not covered by Sections 8.7(b)(i) or 8.7(b)(iii) above (including without limitation any amount received in connection with an action for liquidated damages pursuant to Section 17.4 or Section 17.6 of the Lease or a payment of the Maximum Amount or by set off by the Agent) and (C) any other amount payable by the Guarantor pursuant to the Guaranty shall be applied and allocated by the Agent first, ratably, to the ----- payment of the principal, interest and Make-Whole Amount, if any, on the Tranche A Notes then outstanding, second, to any ------ and all other amounts owing under the Operative Agreements to the Tranche A Note Purchasers under the Tranche A Notes, third, to the extent such amount exceeds the maximum amount to ----- be retained pursuant to the foregoing provisions of this paragraph (iv), ratably to the payment of the principal and interest balance of the Tranche B Loans then outstanding, fourth, to the payment of any other amounts owing to the ------ Tranche B Lenders under the Tranche B Loans, and fifth, to the ----- extent moneys remain after application and allocation pursuant to clauses first through fourth above, to the Lessor for ----- ------ application and allocation as the Lessor shall determine.
(v) An amount equal to any such payment identified as Supplemental Rent payable to the Agent, the Lessor or any Primary Financing Party shall be applied and allocated by the Agent to the payment of any amounts then owing to the Agent, the Primary Financing Parties, the Lessor and the other parties to the Operative Agreements (or any of them) (other than any such amounts payable pursuant to the preceding provisions of this Section 8.7(b)) as shall be determined by the Agent in its reasonable discretion; provided, however, -------- ------- that Supplemental Rent received after the occurrence and continuance of an Event of Default shall be applied and allocated as set forth in Section 8.7(b)(iv).
(vi) Except as set forth in subparagraph (ii) of this Section 8.7(b), any payment of Termination Value shall be applied and allocated by the Agent if no Lease Default or Lease Event of Default is in effect, first, ratably to the ----- Primary Financing Parties for application and allocation to the payment of the principal, interest and Make-Whole Amount, if any, on the Notes which is due and payable on such date; second, to any and all other amounts owing under the Operative ------ Agreements to the Primary Financing Parties; third, any excess ----- shall be paid to the Lessee or such Person or Persons as the Lessee may designate; provided, that if a Lease Default or -------- Lease Event of Default is in effect, such amount shall be applied and allocated in the manner contemplated by Section 8.7(b)(iv).
(vii) The Agent in its reasonable judgment shall identify the nature of each payment or amount received by the Agent and apply and allocate each such amount in the manner specified above.
(c) Upon Notwithstanding any provision contained herein or in any other Operative Agreement to the termination of the Commitments and contrary, upon the payment in full of the Loans and all other amounts then due and owing by the Owner Trustee Lessor hereunder or under any Credit Document Operative Agreement and the payment in full of all other amounts then due and owing to the Holder Primary Financing Parties, the Lessor, the Agent and the Owner Trustee under other Financing Parties pursuant to the Trust AgreementOperative Agreements, any moneys remaining with the Bank Agent shall be returned to the Lessee or such other Person or Persons as its designee. Notwithstanding the foregoing, the obligations of the Lessee may designate. In to pay all amounts due to any Financing Party under the event of an Acceleration it is agreed that, prior Notes or any other Operative Agreement shall be automatically reinstated if and to the application and allocation extent that for any reason any payment by or on behalf of amounts received the Lessee is rescinded or must be otherwise restored by the Bank in the order described in Section 8.7(b) aboveany Financing Party, any such amounts shall first be applied and allocated to the payment of (i) any and all sums advanced by the Bank in order to preserve the Collateral or to preserve its Lien thereon, (ii) the expenses of retaking, holding, preparing for sale or lease, selling or otherwise disposing or realizing on the Collateral, or whether as a result of any exercise by proceedings in bankruptcy or reorganization or otherwise, and the Bank Lessee agrees that it will, subject to Section 11.7 of its rights under the Security DocumentsParticipation Agreement, together with indemnify each Financing Party on demand for all reasonable attorneys' fees costs and expenses and court costs and (iiiincluding, without limitation, reasonable fees of counsel) incurred by any and all other amounts reasonably owed to the Bank under or Financing Party in connection with the transactions contemplated by the Operative Agreements (such rescission or restoration, including without limitation any accrued such costs and unpaid administration fees)expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar law.
Appears in 1 contract
Samples: Participation Agreement (Capital One Financial Corp)
Collection and Allocation of Payments and Other Amounts. (a) The Lessee Each Credit Party has agreed pursuant to Section 5.8 and otherwise in accordance with the terms of this Agreement to pay to (i) the Bank any and all Rent (excluding Excepted Payments) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to any Person and (ii) each Person as appropriate the Excepted Payments.
(b) Payments and other amounts received by the Bank from time to time in accordance with the terms of subparagraph (a) shall be applied and allocated by the Bank first, to the payment of interest on the Loans and thereafter the principal of the Loans which is due and payable on such date; second, to the payment of accrued Holder Yield with respect to the Holder Advances and thereafter the portion of the Holder Advances which is due on such date; and third, if no Default or Event of Default is in effect, any excess shall be paid to such Person or Persons as the Lessee may designate.
(c) Upon the termination of the Commitments and the payment in full of the Loans and all other amounts owing by the Owner Trustee hereunder or under any Credit Document and the payment in full of all amounts owing to the Holder and the Owner Trustee under the Trust Agreement, any moneys remaining with the Bank shall be returned to the Lessee or such other Person or Persons as the Lessee may designate. In the event of an Acceleration it is agreed that, prior to the application and allocation of amounts received by the Bank in the order described in Section 8.7(b) above, any such amounts shall first be applied and allocated to the payment of (i) any and all sums advanced by the Bank in order to preserve the Collateral or to preserve its Lien thereon, (ii) the expenses of retaking, holding, preparing for sale or lease, selling or otherwise disposing or realizing on the Collateral, or of any exercise by the Bank of its rights under the Security Documents, together with reasonable attorneys' fees and expenses and court costs and (iii) any and all other amounts reasonably owed to the Bank under or in connection with the transactions contemplated by the Operative Agreements (including without limitation any accrued and unpaid administration fees).
Appears in 1 contract
Collection and Allocation of Payments and Other Amounts. (a) The Lessee has and the Construction Agent have agreed pursuant to Section 5.8 and otherwise in accordance with the terms of this Participation Agreement to pay to (i) the Bank Agent any and all Rent (excluding Excepted Payments) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to any Person the Lessor or the Owner Trustee and (ii) each Person Holder as appropriate the Excepted Payments. Promptly after receipt, the Agent shall apply and allocate, in accordance with the terms of this Section 10.7, such amounts received from the Lessee or the Construction Agent and all other payments, receipts and other consideration of any kind whatsoever received by the Agent pursuant to the Security Agreement or otherwise received by the Agent, the Holders or any of the Lenders in connection with the Collateral, the Security Documents or any of the other Operative Agreements.
(ba) Payments and other amounts received by the Bank Agent from time to time in accordance with the terms of subparagraph (a) shall be applied and allocated as follows:
(i) Any such payment or amount identified as or deemed to be Basic Rent shall be applied and allocated by the Bank Agent first, ratably to the Lenders and the Holders for application and allocation to the payment of interest on the Loans and thereafter the principal of the Loans which is due and payable on such date; second, to the payment of accrued Holder Yield with respect to the Holder Advances and thereafter the portion of the Holder Advances which is due on such dateAdvances; and thirdsecond, if no Default or Event of Default is in effect, any excess shall be paid to such Person or Persons as the Lessee may designate.
; provided, that if a Default or Event of Default is in effect, such excess (cif any) Upon the termination of the Commitments and the payment in full of the Loans and all other amounts owing shall instead be held by the Owner Trustee hereunder Agent until the earlier of (I) the first date thereafter on which no Default or under any Credit Document and the payment in full Event of all amounts owing to the Holder and the Owner Trustee under the Trust Agreement, any moneys remaining with the Bank Default shall be returned in effect (in which case such payments or returns shall then be made to the Lessee or such other Person or Persons as the Lessee may designate. In ) and (II) the event Maturity Date or the expiration Date, as the case may be (or, if earlier, the date of an Acceleration it is agreed thatany Acceleration), prior to the application and allocation of amounts received by the Bank in the order described in Section 8.7(b) above, any which case such amounts shall first be applied and allocated in the manner contemplated by Section 10.7(b)(iv) hereof. The Agent shall distribute to the payment of (i) any and all sums advanced by the Bank in order to preserve the Collateral or to preserve its Lien thereon, (iix) the expenses of retakingLenders, holdingratably based on their respective Commitments, preparing for sale or lease, selling or otherwise disposing or realizing on the Collateral, or of any exercise by the Bank of its rights under the Security Documents, together with reasonable attorneys' fees and expenses and court costs and (iii) any and all other amounts reasonably owed to the Bank under or in connection with the transactions contemplated by the Operative Agreements (including without limitation any accrued and unpaid administration fees).all
Appears in 1 contract
Samples: Participation Agreement (Lci International Inc /Va/)
Collection and Allocation of Payments and Other Amounts. (a) The Lessee Each Credit Party has agreed pursuant to Section 5.8 5.9 and otherwise in accordance with the terms of this Agreement to pay to (i) the Bank Collateral Agent any and all Rent (excluding Excepted Payments) and any and all other amounts of any kind or type under any of the Operative Agreements Related Documents due and owing or payable to any Person and (ii) each Person as appropriate entitled thereto, the Excepted Payments. Promptly after receipt, the Collateral Agent shall deposit into the Collateral Account and shall disburse such amounts in accordance with this Section 12.1, such amounts received from any Credit Party.
(b) Payments and other amounts received by the Bank Collateral Agent from time to time in accordance with the terms of subparagraph (a) shall be applied and allocated as follows:
(i) Any such payment or amount identified as or deemed to be Basic Rent shall be allocated and disbursed by the Bank Collateral Agent first, ratably to the Lenders and the Certificateholders for application to the payment of interest on the Loans Advances and thereafter the principal of the Loans which is Advances then due and payable on such date; second, and to the payment of accrued Holder Yield with respect to yield on the Holder Advances Certificates and thereafter the any portion of the Holder Certificateholder Advances which is then due on such dateand payable; and thirdsecond, if no Potential Default or Event of Default has occurred and is in effect, any excess shall be paid continuing to such Person or Persons as the Lessee may designate.
; provided, that if a Potential Default or Event of Default has occurred and is continuing, such excess (cif any) Upon the termination of the Commitments and the payment in full of the Loans and all other amounts owing shall instead be held by the Owner Trustee hereunder Collateral Agent until the earlier of (A) the first date thereafter on which no Potential Default or under any Credit Document and the payment in full Event of all amounts owing to the Holder and the Owner Trustee under the Trust Agreement, any moneys remaining with the Bank Default shall be returned continuing (in which case such payments or returns shall then be made to the Lessee or such other Person or Persons as the Lessee may designate. In ), (B) the event of an Acceleration it is agreed that, prior to the application and allocation of amounts received by the Bank Final Date (in the order described in Section 8.7(b) above, any which case such amounts shall first be applied and allocated in the manner contemplated by the applicable provisions of this Article 12) and (C) the date of any Acceleration (in which case such amounts shall be applied and allocated in the manner set forth in Section 12.5 hereof).
(ii) If on any date the Collateral Agent or the Lessor shall receive any amount in respect of (A) any Casualty or Condemnation pursuant to Sections 15 or 16 of the Master Lease (excluding any payments in respect thereof which are payable to the Lessee in accordance with the Master Lease), or (B) any payment required to be made or elected to be made by the Construction Agent to the Lessor pursuant to the terms of the Construction Agency Agreement, then in each case, the Lessor shall be required to pay such amount received (1) if no Acceleration has occurred, to prepay the outstanding principal balance of the Advances and the outstanding amount of the Certificateholder Advances, on a pro rata basis, or (2) if an Acceleration has occurred, to apply and allocate such proceeds in accordance with Section 12.5 hereof.
(iii) An amount equal to any such payment identified as Additional Rent shall be applied and allocated by the Collateral Agent to the payment of any amounts then owing to the Collateral Agent, the Lenders, the Certificateholders and the other parties to the Related Documents (or any of them) (other than any such amounts payable pursuant to the preceding provisions of this Section 12.1) as shall be determined by the Collateral Agent in its reasonable discretion;
(iv) The Collateral Agent in its reasonable judgment shall identify the nature of each payment or amount received by the Collateral Agent and apply and allocate each such amount in the manner specified above.
(c) Each Secured Party hereby agrees that (i) it shall not exercise any rights or remedies against any Credit Party or its property, including, without limitation, any right of set-off or counterclaim, whether granted pursuant to any Related Document, arising at law or in equity or otherwise, without the prior written consent of the Majority Secured Parties, and all sums advanced by the Bank in order to preserve the Collateral or to preserve its Lien thereon, (ii) the expenses Collateral Agent shall be the sole party entitled to exercise rights and remedies against the Lessor; provided, however, that nothing herein shall be deemed to preclude or prohibit the acceleration of retaking, holding, preparing for sale or lease, selling or otherwise disposing or realizing on the Collateral, or maturity of any exercise by of the Bank of its rights under Obligations as provided in the Security Related Documents, together with reasonable attorneys' fees and expenses and court costs and (iii) any and all other amounts reasonably owed to the Bank under or in connection with the transactions contemplated by the Operative Agreements (including without limitation any accrued and unpaid administration fees).
Appears in 1 contract
