Disbursements of Funds from Payment Account. (a) Notwithstanding any other provision of this Agreement other than Section 6.4, but subject to the other subsections of this Section 9.1 and Article II (with respect to optional repayment of Loans), on each Quarterly Payment Date, the Collateral Agent shall disburse amounts transferred to the Payment Account from the Collection Account pursuant to Section 8.2(h) as follows and for application in accordance with the following priorities (the “Priority of Payments”): (i) On each Quarterly Payment Date, prior to the distribution of any Principal Proceeds, Interest Proceeds shall be applied as follows: (A) to the payment of the following amounts in the following priority (without duplication): (1) Taxes (but not including any accrued and unpaid Increased Costs), registration and filing fees then due and owing by the Borrower, (2) accrued and unpaid Administrative Expenses in the order set forth in the definition thereof and (3) on any Quarterly Payment Date other than the final Quarterly Payment Date, to the retention in the Collection Account of an amount equal to the Retained Expense Amount for such Quarterly Payment Date; provided that the aggregate amount of payments under this clause (A)(2) and (3) shall not exceed on any Quarterly Payment Date the sum of (a) the Quarterly Cap plus (b) the Retained Expense Amount determined on the immediately prior Quarterly Payment Date less (c) Administrative Expenses paid pursuant to Section 8.2(g) during the Due Period relating to such Quarterly Payment Date; (B) if the Borrower is party to any Interest Hedge Agreements, to the payment of any amounts owing by the Borrower to the Interest Hedge Counterparties thereunder (exclusive of any early termination or liquidation payment owing by the Borrower by reason of the occurrence of an event of default or termination event thereunder with respect to such Interest Hedge Counterparty where such Interest Hedge Counterparty is the sole affected party or the defaulting party); (C) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of all due and unpaid Senior Services Fees that have not been deferred on prior Quarterly Payment Dates; (D) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any interest payable at the Post-Default Rate); (E) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied; (F) to the payment of amounts described in clause (A) above to the extent not paid thereunder (without regard to any cap or limitation); (G) to the payment of any interest payable at the Post-Default Rate; (H) to the payment of any Lender’s Increased Costs; (I) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium; (J) to the payment to the Services Provider (or its designee) of any previously deferred Senior Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date; (K) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of (1) all due and unpaid Subordinated Services Fees that have not been deferred on prior Quarterly Payment Dates and (2) any previously deferred Subordinated Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date; (L) if the Borrower is party to any Interest Hedge Agreements, to any amounts owing by the Borrower to the Interest Hedge Counterparties under such Interest Hedge Agreements to the extent not paid under clause (B) above (without regard to any cap or limitation); (M) all remaining Interest Proceeds: (1) during the Reinvestment Period, at the sole discretion of the Services Provider, either (i) to the Borrower for payment as directed by the Borrower, including as to make a distribution to the Parent; (ii) to the Collection Account to be applied as Principal Proceeds for the purchase of additional Collateral Loans, (iii) to be applied to prepay the principal of the Loans pursuant to Section 2.7, and/or (iv) for deposit into the Future Funding Reserve Account; and (2) after the Reinvestment Period, to the Borrower or for payment as directed by the Borrower, either to (i) make a distribution to the Parent; or (ii) prepay the principal of the Loans pursuant to Section 2.7. (ii) On each Quarterly Payment Date, following the distribution of all Interest Proceeds as set forth in Section 9.1(a)(i) above, Principal Proceeds (other than Principal Proceeds previously reinvested in Collateral Loans or otherwise designated by the Borrower for application pursuant to the parenthetical contained in Section 8.2(a)(ii) or otherwise to provide for any Unsettled Amount) shall be applied as follows; provided that after giving effect to any such payment no Commitment Shortfall would exist (and, to the extent that any Commitment Shortfall would exist, Principal Proceeds shall first be deposited in the Future Funding Reserve Account in the amount needed to eliminate such Commitment Shortfall): (A) to the payment of unpaid amounts in items (A) through (C) in Section 9.1(a)(i) above (in such order of priority stated therein); (B) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any interest payable at the Post-Default Rate); (C) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if an Event of Default or a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied or, with respect to an Event of Default, the Loans are paid in full; (D) to the payment of any interest payable at the Post-Default Rate; (E) during the Reinvestment Period, all remaining Principal Proceeds may, at the sole discretion of the Services Provider: (1) be deposited into the Collection Account for the purchase of additional Collateral Loans; (2) be applied to prepay the principal of the Loans pursuant to Section 2.7; and/or (3) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium; provided that, the Lender Advance Rate Test shall be satisfied immediately after giving effect to such payment; (4) be deposited into the Future Funding Reserve Account; and (5) so long as no Default or Event of Default has occurred and is continuing or would result, be used to make a Permitted Parent Distribution. (F) after the Reinvestment Period, (1) first, to be applied to the payment of interest, principal, Commitment Fees and other obligations on the Loans until repaid in full; (2) second, to the payment of amounts referred to in items (E) through (J) in Section 9.1(a)(i) above, in the priority set forth therein but only to the extent not paid in full thereunder; and (3) third, to the Borrower or for payment as directed by the Borrower, including to make a distribution to the Parent. (b) If on any Quarterly Payment Date the amount available in the Payment Account from amounts received in the related Due Period is insufficient to make the full amount of the disbursements required pursuant to any clause in the Priority of Payments, the Collateral Agent shall make the disbursements called for in the order and according to the priority set forth under Section 9.1(a) and ratably or in the order provided within the applicable clause, as applicable, in accordance with the respective amounts owing under any such clause, to the extent funds are available therefor. (c) On each Quarterly Payment Date, the Collateral Administrator (on behalf of the Borrower) shall deliver to the Administrative Agent, the Collateral Agent, the Services Provider and S&P (so long as S&P is rating the Loans) a report (the “Payment Date Report”) containing the information described in Exhibit E hereto pursuant to Section 8.9 specifying the amount of Interest Proceeds (and, of such amount, the amount of Fee Proceeds) and Principal Xxxxxxxx received during the preceding Due Period and the amounts to be applied to each purpose set forth in Section 9.1(a). The information in each Payment Date Report shall be determined as of the Calculation Date immediately preceding the applicable Quarterly Payment Date. For the avoidance of doubt, in any month in which a Quarterly Payment Date occurs, the Collateral Report and the Payment Date Report may be combined into a single report. (d) In the event that the Services Provider obtains actual knowledge of or receives written notice that any Interest Hedge Counterparty defaults in the payment of its obligations to the Borrower under any Interest Hedge Agreement on the payment date therefor, the Services Provider shall notify the Borrower which shall (or the Services Provider on behalf of the Borrower shall) make a demand on such Interest Hedge Counterparty, or any guarantor, if applicable, demanding payment by 12:00 noon, New York time, on the next Business Day. The Services Provider shall give notice to the Lenders, the Administrative Agent, S&P, the Borrower and the Collateral Agent upon the continuing failure by such Interest Hedge Counterparty (or applicable guarantor) to perform its obligations for one Business Day following a demand made by the Borrower (or the Services Provider on behalf of the Borrower) on such Interest Hedge Counterparty.
Appears in 3 contracts
Samples: Credit Agreement (Blue Owl Technology Finance Corp.), Credit Agreement (Owl Rock Technology Finance Corp.), Credit Agreement (Owl Rock Technology Finance Corp.)
Disbursements of Funds from Payment Account. (a) Notwithstanding any other provision of this Agreement other than Section 6.4, but subject to the other subsections of this Section 9.1 and Article II (with respect to optional repayment of Loans), on each Quarterly Payment Date, the Collateral Agent shall disburse amounts transferred to the Payment Account from the Collection Account pursuant to Section 8.2(h) as follows and for application in accordance with the following priorities (the “Priority of Payments”):
(i) On each Quarterly Payment Date, prior to the distribution of any Principal Proceeds, Interest Proceeds shall be applied as follows:
(A) to the payment of the following amounts in the following priority (without duplication): (1) Taxes (but not including any accrued and unpaid Increased Costs), registration and filing fees then due and owing by the Borrower, (2) accrued and unpaid Administrative Expenses in the order set forth in the definition thereof and (3) on any Quarterly Payment Date other than the final Quarterly Payment Date, to the retention in the Collection Account of an amount equal to the Retained Expense Amount for such Quarterly Payment Date; provided that the aggregate amount of payments under this clause (A)(2) and (3) shall not exceed on any Quarterly Payment Date the sum of (a) the Quarterly Cap plus (b) the Retained Expense Amount determined on the immediately prior Quarterly Payment Date less (c) Administrative Expenses paid pursuant to Section 8.2(g) during the Due Period relating to such Quarterly Payment Date;
(B) if the Borrower is party to any Interest Hedge Agreements, to the payment of any amounts owing by the Borrower to the Interest Hedge Counterparties thereunder (exclusive of any early termination or liquidation payment owing by the Borrower by reason of the occurrence of an event of default or termination event thereunder with respect to such Interest Hedge Counterparty where such Interest Hedge Counterparty is the sole affected party or the defaulting party);
(C) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of all due and unpaid Senior Services Fees that have not been deferred on prior Quarterly Payment Dates;
(D) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any the additional two percent of interest payable at the Post-Default Rate);
(E) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied;
(F) to the payment to the Administrative Agent of the Administrative Agent Fee;
(G) to the payment of amounts described in clause (A) above to the extent not paid thereunder (without regard to any cap or limitation);
(GH) first, to the payment of any interest payable at amounts described in clause (D) above to the Post-Default Rate;
(H) extent not paid thereunder, and second, to the payment of any Lender’s Increased Costs;
(I) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium[Reserved];
(J) to the payment to the Services Provider (or its designee) of any previously deferred Senior Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(K) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of (1) all due and unpaid Subordinated Services Fees that have not been deferred on prior Quarterly Payment Dates and (2) any previously deferred Subordinated Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(L) if the Borrower is party to any Interest Hedge Agreements, to any amounts owing by the Borrower to the Interest Hedge Counterparties under such Interest Hedge Agreements to the extent not paid under clause (B) above (without regard to any cap or limitation);
(M) if the Lender Advance Rate Test is satisfied, to the Lenders for payment of any Make-Whole Fees;
(N) all remaining Interest Proceeds:
(1) during the Reinvestment Period, at the sole discretion of the Services Provider, either (i) to the Borrower for payment as directed by the Borrower, including as to make a distribution to the Parent; (ii) to the Collection Account to be applied as Principal Proceeds for the purchase of additional Collateral Loans, (iii) to be applied to prepay the principal of the Loans pursuant to Section 2.7, and/or (iv) for deposit into the Future Funding Reserve Account; and
(2) after the Reinvestment Period, to the Borrower or for payment as directed by the Borrower, either to (i) make a distribution to the Parent; or (ii) prepay the principal of the Loans pursuant to Section 2.7.
(ii) On each Quarterly Payment Date, following the distribution of all Interest Proceeds as set forth in Section 9.1(a)(i) above, Principal Proceeds (other than Principal Proceeds previously reinvested in Collateral Loans or otherwise designated by the Borrower for application pursuant to the parenthetical contained in Section 8.2(a)(ii) or otherwise to provide for any Unsettled Amount) shall be applied as follows; provided that after giving effect to any such payment no Commitment Shortfall would exist (and, to the extent that any Commitment Shortfall would exist, Principal Proceeds shall first be deposited in the Future Funding Reserve Account in the amount needed to eliminate such Commitment Shortfall):
(A) to the payment of unpaid amounts in items (A) through (C) in Section 9.1(a)(i) above (in such order of priority stated therein);
(B) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any the additional two percent of interest payable at the Post-Default Rate);
(C) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if an Event of Default or a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied or, with respect to an Event of Default, the Loans are paid in full;
(D) to the payment of any interest payable at the Post-Default Rate[reserved];
(E) during the Reinvestment Period, all remaining Principal Proceeds may, at the sole discretion of the Services Provider:
(1) be deposited into the Collection Account for the purchase of additional Collateral Loans;
(2) be applied to prepay the principal of the Loans pursuant to Section 2.7; and/or
(3) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium; provided that, the Lender Advance Rate Test shall be satisfied immediately after giving effect to such payment;
(4) be deposited into the Future Funding Reserve Account; and
(54) so as long as no Default or Event of Default has occurred and the Lender Advance Rate Test is continuing or would resultsatisfied pro forma for such distributions, be used applied, first, to the payment of amounts described in clause (B) above to the extent not paid thereunder (including the additional two percent of interest payable at the Post-Default Rate), second, to the payment of any Lender’s Increased Costs, and, third, to make a Permitted Parent Distribution.
(F) after the Reinvestment Period,
(1) first, to be applied to the payment of interest, principal, Commitment Fees and other obligations on the Loans until repaid in full;
(2) second, to the payment of amounts referred to in items (E) through (J) in Section 9.1(a)(i) above, in the priority set forth therein but only to the extent not paid in full thereunder; and;
(3) third, to the payment of amounts described in clause (B) above to the extent not paid thereunder (including the additional two percent of interest payable at the Post-Default Rate), and then to the payment of any Lender’s Increased Costs; and
(4) fourth, to the Borrower or for payment as directed by the Borrower, including to make a distribution to the Parent.
(b) If on any Quarterly Payment Date the amount available in the Payment Account from amounts received in the related Due Period is insufficient to make the full amount of the disbursements required pursuant to any clause in the Priority of Payments, the Collateral Agent shall make the disbursements called for in the order and according to the priority set forth under Section 9.1(a) and ratably or in the order provided within the applicable clause, as applicable, in accordance with the respective amounts owing under any such clause, to the extent funds are available therefor.
(c) On each Quarterly Payment Date, the Collateral Administrator (on behalf of the Borrower) shall deliver to the Administrative Agent, the Collateral Agent, the Services Provider Provider, the Lenders and S&P (so long as S&P is rating the Loans) applicable Rating Agency a report (the “Payment Date Report”) containing the information described in Exhibit E hereto pursuant to Section 8.9 specifying the amount of Interest Proceeds (and, of such amount, the amount of Fee Proceeds) and Principal Xxxxxxxx Proceeds received during the preceding Due Period and the amounts to be applied to each purpose set forth in Section 9.1(a). The information in each Payment Date Report shall be determined as of the Calculation Date immediately preceding the applicable Quarterly Payment Date. For the avoidance of doubt, in any month in which a Quarterly Payment Date occurs, the Collateral Report and the Payment Date Report may be combined into a single report.
(d) In the event that the Services Provider obtains actual knowledge of or receives written notice that any Interest Hedge Counterparty defaults in the payment of its obligations to the Borrower under any Interest Hedge Agreement on the payment date therefor, the Services Provider shall notify the Borrower which shall (or the Services Provider on behalf of the Borrower shall) make a demand on such Interest Hedge Counterparty, or any guarantor, if applicable, demanding payment by 12:00 noon, New York time, on the next Business Day. The Services Provider shall give notice to the Lenders, the Administrative Agent, S&Pthe applicable Rating Agency, the Borrower and the Collateral Agent upon the continuing failure by such Interest Hedge Counterparty (or applicable guarantor) to perform its obligations for one Business Day following a demand made by the Borrower (or the Services Provider on behalf of the Borrower) on such Interest Hedge Counterparty.
Appears in 3 contracts
Samples: Credit Agreement (Blue Owl Technology Finance Corp. II), Credit Agreement (Blue Owl Technology Finance Corp. II), Credit Agreement (Owl Rock Technology Finance Corp. II)
Disbursements of Funds from Payment Account. (a) Notwithstanding any other provision of this Agreement other than Section 6.4, but subject to the other subsections of this Section 9.1 and Article II (with respect to optional repayment of Loans), on each Quarterly Payment Date, the Collateral Agent shall disburse amounts transferred to the Payment Account from the Collection Account pursuant to Section 8.2(h8.2(e) as follows and for application in accordance with the following priorities (the “Priority of Payments”):
(i) On each Quarterly Payment Date, prior to the distribution of any Principal Proceeds, Interest Proceeds shall be applied as follows:
(A) to the payment of the following amounts in the following priority (without duplication): (1) Taxes (but not including any accrued and unpaid Increased Costs), registration and filing fees then due and owing by the Borrower, (2) accrued and unpaid Administrative Expenses in the order set forth in the definition thereof and (3) on any Quarterly Payment Date other than the final Quarterly Payment Date, to the retention in the Collection Account of an amount equal to the Retained Expense Amount for such Quarterly Payment Date; provided that the aggregate amount of payments under this clause (A)(2) and (3) shall not exceed on any Quarterly Payment Date the sum of (a) the Quarterly Cap plus (b) the Retained Expense Amount determined on the immediately prior Quarterly Payment Date less (c) Administrative Expenses paid pursuant to Section 8.2(g8.2(d) during the Due Period relating to such Quarterly Payment Date;
(B) if the Borrower is party to any Interest Hedge Agreements, to the payment of any amounts owing by the Borrower to the Interest Hedge Counterparties thereunder (exclusive of any early termination or liquidation payment owing by the Borrower by reason of the occurrence of an event of default or termination event thereunder with respect to such Interest Hedge Counterparty where such Interest Hedge Counterparty is the sole affected party or the defaulting party);
(C) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of all due and unpaid Senior Services Fees that have not been deferred on prior Quarterly Payment Dates;
(D) to the Lenders for payment (on a pro rata basis) of accrued interest and solely to the Revolving Lenders in respect of their Revolving Loans, Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any the additional two percent of interest payable at the Post-Default Rate);
(E) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if a Market Trigger has occurred and is continuingDate, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied;
(F) to the payment of amounts described in clause (A) above to the extent not paid thereunder (without regard to any cap or limitation);
(G) first, to the payment of any interest payable at amounts described in clause (D) above to the Post-Default Rate;
(H) extent not paid thereunder, and second, to the payment of any Lender’s Increased Costs;
(I) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium;
(JH) to the payment to the Services Provider (or its designee) of any previously deferred Senior Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(KI) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of (1) all due and unpaid Subordinated Services Fees that have not been deferred on prior Quarterly Payment Dates and (2) any previously deferred Subordinated Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(LJ) if the Borrower is party to any Interest Hedge Agreements, to any amounts owing by the Borrower to the Interest Hedge Counterparties under such Interest Hedge Agreements to the extent not paid under clause (B) above (without regard to any cap or limitation);
(MK) all remaining Interest Proceeds:
(1) during the Reinvestment Period, at the sole discretion of the Services Provider, either (i) to the Borrower for payment as directed by the Borrower, including as to make a distribution to the ParentParent under the Equity Interest held by the Parent in the Borrower; (ii) to the Collection Account to be applied as Principal Proceeds for the purchase of additional Collateral Loans, (iii) to be applied to prepay the principal of the Loans pursuant to Section 2.7, and/or (iv) for deposit into the Future Funding Reserve Account; and
(2) after the Reinvestment Period, to the Borrower or for payment as directed by the Borrower, either to (i) make a distribution to the ParentParent under the Equity Interest held by the Parent in the Borrower; or (ii) prepay the principal of the Loans pursuant to Section 2.7.
(ii) On each Quarterly Payment Date, following the distribution of all Interest Proceeds as set forth in Section 9.1(a)(i) above, Principal Proceeds (other than Principal Proceeds previously reinvested in Collateral Loans or otherwise designated by the Borrower for application pursuant to the parenthetical contained in Section 8.2(a)(ii) or otherwise to provide for any Unsettled Amount) Amount shall be applied as follows; provided that after giving effect to any such payment no Commitment Shortfall would exist (and, to the extent that any Commitment Shortfall would exist, Principal Proceeds shall first be deposited in the Future Funding Reserve Account in the amount needed to eliminate such Commitment Shortfall):
(A) to the payment of unpaid amounts in items (A) through (CE) in Section 9.1(a)(i) above (in such order of priority stated therein);
(B) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any interest payable at the Post-Default Rate);
(C) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if an Event of Default or a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied or, with respect to an Event of Default, the Loans are paid in full;
(D) to the payment of any interest payable at the Post-Default Rate;
(E) during the Reinvestment Period, all remaining Principal Proceeds mayProceeds, at the sole discretion of the Services Provider:
(1) be deposited into to the Collection Account for the purchase of additional Collateral Loans;
(2) to be applied to prepay the principal of the Loans pursuant to Section 2.7; and/or
(3) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium; provided that, the Lender Advance Rate Test shall be satisfied immediately after giving effect to such payment;
(4) be deposited into the Future Funding Reserve Account; and;
(5) so long as no Default or Event of Default has occurred and is continuing or would result, be used to make a Permitted Parent Distribution.
(FC) after the Reinvestment Period,
(1) first, to be applied to the payment of interest, principal, Commitment Fees principal and other obligations on the Loans until repaid in full;
(2) second, to the payment of amounts referred to in items (EF) through (J) in Section 9.1(a)(i) above, in the priority set forth therein but only to the extent not paid in full thereunder; and
(3) third, to the Borrower or for payment as directed by the Borrower, including to make a distribution to the ParentParent under the Equity Interest held by the Parent in the Borrower.
(b) If on any Quarterly Payment Date the amount available in the Payment Account from amounts received in the related Due Period is insufficient to make the full amount of the disbursements required pursuant to any clause in the Priority of Payments, the Collateral Agent shall make the disbursements called for in the order and according to the priority set forth under Section 9.1(a) and ratably or in the order provided within the applicable a clause, as applicable, in accordance with the respective amounts owing under any such clause, to the extent funds are available therefor.
(c) On each Quarterly Payment Date, the Collateral Administrator (on behalf of the Borrower) shall deliver to the Administrative Agent, the Collateral Agent, the Services Provider and S&P (so long as S&P is rating the Loans) a report (the “Payment Date Report”) containing the information described in Exhibit E hereto pursuant to Section 8.9 specifying the amount of Interest Proceeds (and, of such amount, the amount of Fee Proceeds) and Principal Xxxxxxxx Proceeds received during the preceding Due Period and the amounts to be applied to each purpose set forth in Section 9.1(a). The information in each Payment Date Report shall be determined as of the Calculation Date immediately preceding the applicable Quarterly Payment Date. For the avoidance of doubt, in any month in which a Quarterly Payment Date occurs, the Collateral Report and the Payment Date Report may be combined into a single report.
(d) In the event that the Services Provider obtains actual knowledge of or receives written notice that any Interest Hedge Counterparty defaults in the payment of its obligations to the Borrower under any Interest Hedge Agreement on the payment date therefor, the Services Provider shall notify the Borrower which shall (or the Services Provider on behalf of the Borrower shall) make a demand on such Interest Hedge Counterparty, or any guarantor, if applicable, demanding payment by 12:00 noon, New York time, on the next Business Day. The Services Provider shall give notice to the Lenders, the Administrative Agent, S&P, the Borrower and the Collateral Agent upon the continuing failure by such Interest Hedge Counterparty (or applicable guarantor) to perform its obligations for one Business Day following a demand made by the Borrower (or the Services Provider on behalf of the Borrower) on such Interest Hedge Counterparty.
Appears in 2 contracts
Samples: Credit Agreement (Owl Rock Capital Corp), Credit Agreement (Owl Rock Capital Corp)
Disbursements of Funds from Payment Account. (a) Notwithstanding any other provision of this Agreement other than Section 6.4, but subject to the other subsections of this Section 9.1 and Article II (with respect to optional repayment of Loans), on each Quarterly Payment Date, the Collateral Agent shall disburse amounts transferred to the Payment Account from the Collection Account pursuant to Section 8.2(h8.2(e) as follows and for application in accordance with the following priorities (the “Priority of Payments”):
(i) On each Quarterly Payment Date, prior to the distribution of any Principal Proceeds, Interest Proceeds shall be applied as follows:
(A) to the payment of the following amounts in the following priority (without duplication): (1) Taxes (but not including any accrued and unpaid Increased Costs), registration registration, government, registered office and filing fees then due and owing by the Borrower, (2) accrued and unpaid Administrative Expenses in the order set forth in the definition thereof and (3) on any Quarterly Payment Date other than the final Quarterly Payment Date, to the retention in the Collection Account of an amount equal to the Retained Expense Amount for such Quarterly Payment Date; provided that the aggregate amount of payments under this clause (A)(2) and (3) shall not exceed on any Quarterly Payment Date the sum of (a) the Quarterly Cap plus (b) the Retained Expense Amount determined on the immediately prior Quarterly Payment Date less (c) Administrative Expenses paid pursuant to Section 8.2(g8.2(d) during the Due Period relating to such Quarterly Payment Date;
(B) if the Borrower is party to any Interest Hedge Agreements, to the payment of any amounts owing by the Borrower to the Interest Hedge Counterparties thereunder (exclusive of any early termination or liquidation payment owing by the Borrower by reason of the occurrence of an event of default or termination event thereunder with respect to such Interest Hedge Counterparty where such Interest Hedge Counterparty is the sole affected party or the defaulting party);
(C) unless waived or deferred by the Services Provider Collateral Manager, which waiver (or its designee)but not deferral) shall be permanent and irrevocable, to the payment to the Services Provider (or its designee) Collateral Manager of all due and unpaid Senior Services Collateral Management Fees that have not been waived or deferred on prior Quarterly Payment DatesDates (provided that, for the avoidance of doubt, no waived or deferred Collateral Management Fees shall be payable pursuant to this clause (C));
(D) to the Lenders Swingline Lender for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Swingline Loans due on such Quarterly Payment Date (excluding any Capped Amounts and the additional two percent of interest payable at the Post-Default Rate);
(E) to the Class A Lenders, allocated ratably based on the aggregate amounts thereof, for payment of accrued interest and Commitment Fees on the Class A Loans due on such Quarterly Payment Date (excluding in the case of interest, any Capped Amounts and the additional two percent of interest payable at the Post-Default Rate);
(F) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if a Market Trigger has occurred and is continuingDate, first, to the prepayment of principal of the outstanding Swingline Loans until the Swingline Loans are paid in full and second to the prepayment of principal of the Class A Loans (to be allocated to the Class A Loans according to the Principal Allocation Formula) until ), in each case in the amount necessary to result in the satisfaction of the Coverage Tests (on a pro forma basis as of such tests are satisfiedCalculation Date);
(FG) to the payment of amounts described in clause (A) above to the extent not paid thereunder (without regard to any cap or limitation);
(GH) first, to the payment of amounts described in clause (D) above, second to the payment of amounts described in clause (E) above, in each case to the extent not paid thereunder and without regard to any cap or limitation, and third, to the payment of any interest payable at the Post-Default Rate;
(H) to the payment of any Lender’s Increased Costs;
(I) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium;
(J) to the payment to the Services Provider (or its designee) Collateral Manager of any previously deferred Senior Services (but not waived) Collateral Management Fees that the Services Provider Collateral Manager elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation DateDate (provided that, for the avoidance of doubt, no waived Collateral Management Fees shall be payable pursuant to this clause (I));
(K) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of (1) all due and unpaid Subordinated Services Fees that have not been deferred on prior Quarterly Payment Dates and (2) any previously deferred Subordinated Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(LJ) if the Borrower is party to any Interest Hedge Agreements, to any amounts owing by the Borrower to the Interest Hedge Counterparties under such Interest Hedge Agreements to the extent not paid under clause (B) above (without regard to any cap or limitation);
(MK) all remaining Interest Proceeds:
(1) during the Reinvestment Period, at the sole discretion of the Services ProviderCollateral Manager, either (i) to the Borrower for payment as directed by the Borrower, including as to make a distribution to the Parent; (ii) to the Collection Account to be applied as Principal Proceeds for the purchase of additional Collateral Loans, (iiiii) to be applied to prepay the principal of the Loans pursuant to Section 2.7, and/or (iviii) for deposit into the Future Funding Reserve AccountAccount and/or (iv) to the equity of the Borrower; and
(2) after the Reinvestment Period, to at the Borrower or for payment as directed by sole discretion of the Borrower, either to (i) make a distribution to the Parent; or (ii) be applied to prepay the principal of the Loans pursuant to Section 2.72.7 or (ii) to the equity of the Borrower.
(ii) On each Quarterly Payment Date, following the distribution of all Interest Proceeds as set forth in Section 9.1(a)(i) above, Principal Proceeds (other than Principal Proceeds previously reinvested in Collateral Loans or otherwise designated by the Borrower for application pursuant to the parenthetical contained in Section 8.2(a)(ii) or otherwise to provide for any Unsettled Amount)) shall be applied as follows; provided that that, after giving effect to any such payment payment, no Commitment Shortfall would exist (and, to the extent that any Commitment Shortfall would exist, Principal Proceeds shall first be deposited in the Future Funding Reserve Account in the amount needed to eliminate such Commitment Shortfall):
(A) to the payment of unpaid amounts in items (A) through (CF) in Section 9.1(a)(i) above (in such order of priority stated thereinpriority);
(B) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any interest payable at the Post-Default Rate);
(C) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if an Event of Default or a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied or, with respect to an Event of Default, the Loans are paid in full;
(D) to the payment of any interest payable at the Post-Default Rate;
(E) during the Reinvestment Period, all remaining Principal Proceeds mayProceeds, at the sole discretion of the Services ProviderCollateral Manager:
(1) be deposited into to the Collection Account for the purchase of additional Collateral Loans;; and/or
(2) to be applied to prepay the principal of the Loans pursuant to Section 2.7; and/or
(3) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium; provided that, the Lender Advance Rate Test shall be satisfied immediately after giving effect to such payment;
(4) be deposited into the Future Funding Reserve Account; and;
(5) so long as no Default or Event of Default has occurred and is continuing or would result, be used to make a Permitted Parent Distribution.
(FC) after the Reinvestment Period,
(1) first, to be applied first to the payment of interest, principal, Commitment Fees and other obligations principal on the Swingline Loans until repaid in full and then to the payment of principal on the Class A Loans (to be allocated to the Class A Loans according to the Principal Allocation Formula) until repaid in full;
(2D) secondafter the Reinvestment Period, to the payment of amounts referred to in items clauses (EG) through (J) in Section 9.1(a)(iof subsection (i) above, in the priority set forth therein but only to the extent not paid in full thereunder; and
(3E) thirdafter the Reinvestment Period, to the Borrower or for payment as directed by equity of the Borrower, including to make a distribution to the Parent.
(b) If on any Quarterly Payment Date the amount available in the Payment Account from amounts received in the related Due Period is insufficient to make the full amount of the disbursements required pursuant to any clause in the Priority of Payments, the Collateral Agent shall make the disbursements called for in the order and according to the priority set forth under Section 9.1(a) and ratably or in the order provided within the applicable a clause, as applicable, in accordance with the respective amounts owing under any such clause, to the extent funds are available therefor.
(c) On each Quarterly Payment Date, the Collateral Administrator (on behalf of the Borrower) shall deliver to the Administrative Agent, the Collateral Agent, the Services Provider Agent and S&P to DBRS (so long as S&P DBRS is rating the Loans) a report (the “Payment Date Report”) containing the information described in Exhibit E hereto pursuant to Section 8.9 specifying the amount of Interest Proceeds (and, of such amount, the amount of Fee Proceeds) and Principal Xxxxxxxx Proceeds received during the preceding Due Period and Period, the amounts to be applied to each purpose set forth in Section 9.1(a), and a calculation of the Net Aggregate Exposure Amount (which shall be determined based on information provided by the Borrower to the Collateral Administrator including any Revolving Collateral Loans and Delayed Funding Loans and the unpaid purchase price of all Collateral Loans that the Borrower entered into binding commitments before the end of the Reinvestment Period to originate or purchase after the end of the Reinvestment Period). The information in each Payment Date Report shall be determined as of the Calculation Date immediately preceding the applicable Quarterly Payment Date. For the avoidance of doubt, in any month in which a Quarterly Payment Date occurs, the Collateral Report and the Each Payment Date Report may be combined into a single reportshall constitute instructions to the Collateral Agent to withdraw funds from the Payment Account and pay or transfer such amounts set forth in such Payment Date Report in the manner specified and in accordance with the priorities established in Section 9.1(a).
(d) In the event that the Services Provider Collateral Manager obtains actual knowledge of or receives written notice that any Interest Hedge Counterparty defaults in the payment of its obligations to the Borrower under any Interest Hedge Agreement on the payment date therefor, the Services Provider Collateral Manager shall notify the Borrower which shall (or the Services Provider Collateral Manager on behalf of the Borrower shall) make a demand on such Interest Hedge Counterparty, or any guarantor, if applicable, demanding payment by 12:00 noon, New York time, on the next Business Day. The Services Provider Collateral Manager shall give notice to the Lenders, the Administrative Agent, S&PDBRS, the Borrower and the Collateral Agent upon the continuing failure by such Interest Hedge Counterparty (or applicable guarantor) to perform its obligations for one Business Day following a demand made by the Borrower (or the Services Provider Collateral Manager on behalf of the Borrower) on such Interest Hedge Counterparty.
(e) All amounts to be paid to the Borrower under this Section 9.1 shall be paid to such account as the Borrower may designate and upon such payment will be released from the lien of this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (AB Private Credit Investors Corp), Credit Agreement (AB Private Credit Investors Corp)
Disbursements of Funds from Payment Account. (a) Notwithstanding any other provision of this Agreement other than Section 6.4, but subject to the other subsections of this Section 9.1 and Article II (with respect to optional repayment of Loans), on each Quarterly Payment Date, the Collateral Agent shall disburse amounts transferred to the Payment Account from the Collection Account pursuant to Section 8.2(h8.2(e) as follows and for application in accordance with the following priorities (the “Priority of Payments”):
(i) On each Quarterly Payment Date, prior to the distribution of any Principal Proceeds, Interest Proceeds shall be applied as follows:
(A) to the payment of the following amounts in the following priority (without duplication): (1) Taxes (but not including any accrued and unpaid Increased Costs), registration and filing fees then due and owing by the Borrower, (2) accrued and unpaid Administrative Expenses in the order set forth in the definition thereof and (3) on any Quarterly Payment Date other than the final Quarterly Payment Date, to the retention in the Collection Account of an amount equal to the Retained Expense Amount for such Quarterly Payment Date; provided that the aggregate amount of payments under this clause (A)(2) and (3) shall not exceed on any Quarterly Payment Date the sum of (a) the Quarterly Cap plus (b) the Retained Expense Amount determined on the immediately prior Quarterly Payment Date less (c) Administrative Expenses paid pursuant to Section 8.2(g8.2(d) during the Due Period relating to such Quarterly Payment Date;
(B) if the Borrower is party to any Interest Hedge Agreements, to the payment of any amounts owing by the Borrower to the Interest Hedge Counterparties thereunder (exclusive of any early termination or liquidation payment owing by the Borrower by reason of the occurrence of an event of default or termination event thereunder with respect to such Interest Hedge Counterparty where such Interest Hedge Counterparty is the sole affected party or the defaulting party);
(C) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of all due and unpaid Senior Services Fees that have not been deferred on prior Quarterly Payment DatesDates in an amount not to exceed the accrued Senior Services Fees for one Due Period);
(D) to the Lenders for payment (on a pro rata basis) of accrued interest and solely to the Revolving Lenders in respect of their Revolving Loans, Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any the additional two percent of interest payable at the Post-Default Rate);
(E) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if a Market Trigger has occurred and is continuingDate, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied;
(F) to the payment of amounts described in clause (A) above to the extent not paid thereunder (without regard to any cap or limitation);
(G) first, to the payment of any the additional two percent of interest payable at the Post-Default Rate;
(H) , and second, to the payment of any Lender’s Increased Costs;
(I) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium;
(JH) to the payment to the Services Provider (or its designee) of any previously deferred Senior Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(KI) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of (1) all due and unpaid Subordinated Services Fees that have not been deferred on prior Quarterly Payment Dates and (2) any previously deferred Subordinated Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(LJ) if the Borrower is party to any Interest Hedge Agreements, to any amounts owing by the Borrower to the Interest Hedge Counterparties under such Interest Hedge Agreements to the extent not paid under clause (B) above (without regard to any cap or limitation);
(MK) all remaining Interest Proceeds:
(1) during the Reinvestment Period, at the sole discretion of the Services Provider, either (i) to the Borrower for payment as directed by the Borrower, including as to make a distribution to the Parent; (ii) to the Collection Account to be applied as Principal Proceeds for the purchase or origination of additional Collateral Loans, (iii) to be applied to prepay the principal of the Loans pursuant to Section 2.7, and/or (iv) for deposit into the Future Funding Reserve Account; and
(2) after the Reinvestment Period, to the Borrower or for payment as directed by the Borrower, either to (i) make a distribution to the Parent; or (ii) prepay the principal of the Loans pursuant to Section 2.7.
(ii) On each Quarterly Payment Date, following the distribution of all Interest Proceeds as set forth in Section 9.1(a)(i) above, Principal Proceeds (other than Principal Proceeds previously reinvested in Collateral Loans or otherwise designated by the Borrower for application pursuant to the parenthetical contained in Section 8.2(a)(ii) or otherwise to provide for any Unsettled Amount) Amount shall be applied as follows; provided that after giving effect to any such payment no Commitment Shortfall would exist (and, to the extent that any Commitment Shortfall would exist, Principal Proceeds shall first be deposited in the Future Funding Reserve Account in the amount needed to eliminate such Commitment Shortfall):
(A) to the payment of unpaid amounts in items (A) through (CE) in Section 9.1(a)(i) above (in such order of priority stated therein);
(B) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any interest payable at the Post-Default Rate);
(C) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if an Event of Default or a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied or, with respect to an Event of Default, the Loans are paid in full;
(D) to the payment of any interest payable at the Post-Default Rate;
(E) during the Reinvestment Period, all remaining Principal Proceeds mayProceeds, at the sole discretion of the Services Provider:
(1) be deposited into to the Collection Account for the purchase or origination of additional Collateral Loans;
(2) to be applied to prepay the principal of the Loans pursuant to Section 2.7; and/or
(3) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium; provided that, the Lender Advance Rate Test shall be satisfied immediately after giving effect to such payment;
(4) be deposited into the Future Funding Reserve Account; and;
(5) so long as no Default or Event of Default has occurred and is continuing or would result, be used to make a Permitted Parent Distribution.
(FC) after the Reinvestment Period,
(1) first, to be applied to the payment of interest, principal, Commitment Fees and other obligations on the Loans until repaid in full;
(2) second, to the payment of amounts referred to in items (EF) through (J) in Section 9.1(a)(i) above, in the priority set forth therein but only to the extent not paid in full thereunder; and
(3) third, to the Borrower or for payment as directed by the Borrower, including to make a distribution to the Parent.
(b) If on any Quarterly Payment Date the amount available in the Payment Account from amounts received in the related Due Period is insufficient to make the full amount of the disbursements required pursuant to any clause in the Priority of Payments, the Collateral Agent shall make the disbursements called for in the order and according to the priority set forth under Section 9.1(a) and ratably or in the order provided within the applicable a clause, as applicable, in accordance with the respective amounts owing under any such clause, to the extent funds are available therefor.
(c) On each Quarterly Payment Date, the Collateral Administrator (on behalf of the Borrower) shall deliver to the Administrative Agent, the Collateral Agent, the Services Provider and S&P (so long as S&P is rating the Loans) a report (the “Payment Date Report”) containing the information described in Exhibit E hereto pursuant to Section 8.9 specifying the amount of Interest Proceeds (and, of such amount, the amount of Fee Proceeds) and Principal Xxxxxxxx received during the preceding Due Period and the amounts to be applied to each purpose set forth in Section 9.1(a). The information in each Payment Date Report shall be determined as of the Calculation Date immediately preceding the applicable Quarterly Payment Date. For the avoidance of doubt, in any month in which a Quarterly Payment Date occurs, the Collateral Report and the Payment Date Report may be combined into a single report.
(d) In the event that the Services Provider obtains actual knowledge of or receives written notice that any Interest Hedge Counterparty defaults in the payment of its obligations to the Borrower under any Interest Hedge Agreement on the payment date therefor, the Services Provider shall notify the Borrower which shall (or the Services Provider on behalf of the Borrower shall) make a demand on such Interest Hedge Counterparty, or any guarantor, if applicable, demanding payment by 12:00 noon, New York time, on the next Business Day. The Services Provider shall give notice to the Lenders, the Administrative Agent, S&P, the Borrower and the Collateral Agent upon the continuing failure by such Interest Hedge Counterparty (or applicable guarantor) to perform its obligations for one Business Day following a demand made by the Borrower (or the Services Provider on behalf of the Borrower) on such Interest Hedge Counterparty.
Appears in 2 contracts
Samples: Credit Agreement (Blue Owl Credit Income Corp.), Credit Agreement (Blue Owl Credit Income Corp.)
Disbursements of Funds from Payment Account. (a) Notwithstanding any other provision of this Agreement other than Section Sections 2.7 and 6.4, but subject to the other subsections of this Section 9.1 and Article II (with respect to optional repayment of Loans), on each Quarterly Payment Date, the Collateral Agent shall disburse amounts transferred to the Payment Account from the Collection Account pursuant to Section 8.2(h8.2(e) in accordance with the related Payment Date Report as follows and for application in accordance with the following priorities (the “Priority of Payments”):
(i) On each Quarterly Payment Date, prior to the distribution of any Principal Proceeds, Interest Proceeds shall be applied as follows:
(A) to the payment of the following amounts in the following priority (without duplication): (1) Taxes (but not including any accrued and unpaid Increased Costs), registration and filing fees then due and owing by the Borrower, (2) accrued and unpaid Administrative Expenses in the order set forth in the definition thereof and (3) on any Quarterly Payment Date other than the final Quarterly Payment Date, to the retention in the Collection Account of an amount equal to the Retained Expense Amount for such Quarterly Payment Date; provided that the aggregate amount of payments under this clause (A)(2) and (3) shall not exceed on any Quarterly Payment Date the sum of (a) the Quarterly Cap plus (b) the Retained Expense Amount determined on the immediately prior Quarterly Payment Date less (c) Administrative Expenses paid pursuant to Section 8.2(g8.2(d) during the Due Period relating to such Quarterly Payment Date;
(B) if the Borrower is party to any Interest Hedge Agreements, to the payment of any amounts owing by the Borrower to the Interest Hedge Counterparties thereunder (exclusive of any early termination or liquidation payment owing by the Borrower by reason of the occurrence of an event of default or termination event thereunder with respect to such Interest Hedge Counterparty where such Interest Hedge Counterparty is the sole affected party or the defaulting party);
(C) unless waived or deferred by the Services Provider Collateral Manager (or its designee), which waiver (but not deferral) shall be permanent and irrevocable, to the payment to the Services Provider Collateral Manager (or its designee) of all due and unpaid Senior Services Collateral Management Fees that have not been waived or deferred on prior Quarterly Payment Dates;
(D) to the Administrative Agent for distribution to the Lenders for payment (on a pro rata basis) of accrued interest and Lender Fees and solely to the Revolving Lenders in respect of their Revolving Loans, Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any the additional two percent of interest payable at the Post-Default Rate);
(E) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if a Market Trigger has occurred and is continuingDate, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied;
(F) if the Rating Effective Date has occurred and if, with respect to the Quarterly Payment Date following the Effective Period, the Borrower has provided the notice referred to in Section 5.39(c), amounts available for distribution pursuant to this clause (F) shall be used to the prepayment of principal of the Loans until the Loans are paid in full, in the amount sufficient to satisfy the conditions described in clauses (x) and (y) of Section 5.39(b);
(G) to the payment of amounts described in clause (A) above to the extent not paid thereunder (without regard to any cap or limitation);
(GH) first, to the payment of any interest payable at the Post-Default Rate;
amounts described in clause (HD) above to the extent not paid thereunder, and second, to the Administrative Agent for payment of any Lender’s Increased Costs;
(I) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium;
(J) to the payment to the Services Provider Collateral Manager (or its designee) of any previously deferred Senior Services (but not waived) Collateral Management Fees that the Services Provider Collateral Manager elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(K) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of (1) all due and unpaid Subordinated Services Fees that have not been deferred on prior Quarterly Payment Dates and (2) any previously deferred Subordinated Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(LJ) if the Borrower is party to any Interest Hedge Agreements, to any amounts owing by the Borrower to the Interest Hedge Counterparties under such Interest Hedge Agreements to the extent not paid under clause (B) above (without regard to any cap or limitation);
(MK) all remaining Interest Proceeds:
(1) during the Reinvestment Period, at the sole discretion of the Services ProviderCollateral Manager, either (i) to the Borrower for payment as directed by the Borrower, including as to make a distribution to the Parent; (ii) to the Collection Account to be applied as Principal Proceeds for the purchase of additional Collateral Loans, (iiiii) to be applied to prepay the principal of the Loans pursuant to Section 2.7, and/or (iviii) for deposit into the Future Funding Reserve AccountAccount and/or (iv) to the Subordinated Noteholders (on a pro rata basis); and
(2) after the Reinvestment Period, to at the sole discretion of the Borrower (or for payment as directed by the BorrowerCollateral Manager on its behalf), either to (i) make a distribution to the Parent; or (ii) be applied to prepay the principal of the Loans pursuant to Section 2.72.7 or (ii) to the Subordinated Noteholders (on a pro rata basis).
(ii) On each Quarterly Payment Date, following the distribution of all Interest Proceeds as set forth in Section 9.1(a)(i) above, Principal Proceeds (other than Principal Proceeds previously reinvested in Collateral Loans or otherwise designated by the Borrower for application pursuant to the parenthetical contained in Section 8.2(a)(ii) or otherwise to provide for any Unsettled Amount)) shall be applied as follows; provided that after giving effect to any such payment no Commitment Shortfall would exist (and, to the extent that any Commitment Shortfall would exist, Principal Proceeds shall first be deposited in the Future Funding Reserve Account in the amount needed to eliminate such Commitment Shortfall):
(A) to the payment of unpaid amounts in items (A) through (CF) in Section 9.1(a)(i) above (in such order of priority stated therein);
(B) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any interest payable at the Post-Default Rate);
(C) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if an Event of Default or a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied or, with respect to an Event of Default, the Loans are paid in full;
(D) to the payment of any interest payable at the Post-Default Rate;
(E) during the Reinvestment Period, all remaining Principal Proceeds mayProceeds, at the sole discretion of the Services ProviderCollateral Manager:
(1) be deposited into to the Collection Account for the purchase of additional Collateral Loans;
(2) to be applied to prepay the principal of the Loans pursuant to Section 2.7; and/or
(3) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium; provided that, the Lender Advance Rate Test shall be satisfied immediately after giving effect to such payment;
(4) be deposited into the Future Funding Reserve Account; and;
(5) so long as no Default or Event of Default has occurred and is continuing or would result, be used to make a Permitted Parent Distribution.
(FC) after the Reinvestment Period,
(1) first, to be applied to the payment of interest, principal, Commitment Fees principal and other obligations on the Loans until repaid in full;
(2) second, to the payment of amounts referred to in items (EG) through (JK) in Section 9.1(a)(i) above, in the priority set forth therein but only to the extent not paid in full thereunder; and
(3) third, to the Borrower or for payment as directed by the Borrower, including to make Subordinated Noteholders (on a distribution to the Parentpro rata basis).
(b) If on any Quarterly Payment Date the amount available in the Payment Account from amounts received in the related Due Period is insufficient to make the full amount of the disbursements required pursuant to any clause in the Priority of Payments, the Collateral Agent shall make the disbursements called for in the order and according to the priority set forth under Section 9.1(a) and ratably or in the order provided within the applicable a clause, as applicable, in accordance with the respective amounts owing under any such clause, to the extent funds are available therefor.
(c) On each Quarterly Payment Date, the Collateral Administrator (on behalf of the Borrower) shall deliver to the Administrative Agent, the Collateral Agent, the Services Provider Collateral Manager and S&P (so long as S&P is rating the Loans) a report (the “Payment Date Report”) containing the information described in Exhibit E hereto pursuant to Section 8.9 specifying the amount of Interest Proceeds (and, of such amount, the amount of Fee Proceeds) and Principal Xxxxxxxx Proceeds received during the preceding Due Period and the amounts to be applied to each purpose set forth in Section 9.1(a)) or to be distributed pursuant to Section 6.4, as applicable. The information in each Payment Date Report shall be determined as of the Calculation Date immediately preceding the applicable Quarterly Payment Date. For the avoidance of doubt, in any month in which a Quarterly Payment Date occurs, the Collateral Report and the Payment Date Report may be combined into a single report.
(d) In the event that the Services Provider Collateral Manager obtains actual knowledge of or receives written notice that any Interest Hedge Counterparty defaults in the payment of its obligations to the Borrower under any Interest Hedge Agreement on the payment date therefor, the Services Provider Collateral Manager shall notify the Borrower which shall (or the Services Provider Collateral Manager on behalf of the Borrower shall) make a demand on such Interest Hedge Counterparty, or any guarantor, if applicable, demanding payment by 12:00 noon, noon (New York time, ) on the next Business Day. The Services Provider Collateral Manager shall give notice to the Lenders, the Subordinated Noteholders, the Administrative Agent, S&P, the Borrower and the Collateral Agent upon the continuing failure by such Interest Hedge Counterparty (or applicable guarantor) to perform its obligations for one Business Day following a demand made by the Borrower (or the Services Provider Collateral Manager on behalf of the Borrower) on such Interest Hedge Counterparty.
(e) All payments by the Borrower of any distributions to the Subordinated Noteholders, and any payment upon redemption of the Subordinated Notes, are, in each case, subordinated to all other Obligations of the Borrower to the extent set forth herein and will be payable only in accordance with the Priority of Payments with funds available therefor (provided, for the avoidance of doubt, that any such amounts paid to the Subordinated Noteholders in accordance with this Section 9.1 shall be paid free and clear of the Lien of this Agreement and, once paid, shall be free of any such subordination). In addition, such distributions and any payments upon redemption of the Subordinated Notes will be payable (i) only to the extent of sufficient distributable profits and/or share premium out of which to make such a payment and (ii) only to the extent that the Borrower is, on and immediately after such payment, solvent.
Appears in 2 contracts
Samples: Credit Agreement (Golub Capital Private Credit Fund), Credit Agreement (Golub Capital Private Credit Fund)
Disbursements of Funds from Payment Account. (a) Notwithstanding any other provision of this Agreement other than Section 6.4, but subject to the other subsections of this Section 9.1 and Article II (with respect to optional repayment of Loans), on each Quarterly Monthly Payment Date, the Collateral Agent shall disburse amounts transferred to the Payment Account from the Collection Account pursuant to Section 8.2(h8.2(e) as follows and for application in accordance with the following priorities (the “"Priority of Payments”"):
(i) On each Quarterly Monthly Payment Date, prior to the distribution of any Principal Proceeds, Interest Proceeds shall be applied as follows:
(A) to the payment of the following amounts in the following priority (without duplication): (1) Taxes (but not including any accrued and unpaid Increased Costs), registration and filing fees then due and owing by the Borrower, (2) accrued and unpaid Administrative Expenses in the order set forth in the definition thereof and (3) on any Quarterly Monthly Payment Date other than the final Quarterly Monthly Payment Date, to the retention in the Collection Account of an amount such that after giving effect to all payments on such Monthly Payment Date the balance in the Collection Account shall equal to at least the Retained Expense Amount for such Quarterly Payment DateAmount; provided that the aggregate amount of payments under this clause (A)(2) and (3) shall not exceed on any Quarterly Monthly Payment Date the sum of (a) the Quarterly Cap plus (b) the Retained Expense Amount determined on the immediately prior Quarterly Payment Date less (c) Administrative Expenses paid pursuant to Section 8.2(g) during the Due Period relating to such Quarterly Payment DateMonthly Cap;
(B) if the Borrower is party to any Interest Hedge Agreements, to the payment of any amounts owing by the Borrower to the Interest Hedge Counterparties thereunder (exclusive of any early termination or liquidation payment owing by the Borrower by reason of the occurrence of an event of default or termination event thereunder with respect to such Interest Hedge Counterparty where such Interest Hedge Counterparty is the sole affected party or the defaulting party);
(C) unless waived or deferred by the Services Provider Servicer, which waiver (or its designee)but not deferral) shall be permanent and irrevocable, to the payment to the Services Provider (or its designee) Servicer of all due and unpaid Senior Services Fees that have not been waived or deferred on prior Quarterly Monthly Payment DatesDates in an amount not to exceed the accrued Senior Services Fees for one Due Period (provided that, for the avoidance of doubt, no previously waived or deferred Senior Services Fees shall be payable pursuant to this clause (C));
(D) pro rata on the basis of the amount owed, to the Lenders for payment (on a pro rata basis) of accrued interest and solely to the Revolving Lenders in respect of their Revolving Loans, Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Monthly Payment Date (excluding any the additional two percent of interest payable at the Post-Default Rate);
(E) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if a Market Trigger has occurred and is continuingDate, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied;
(F) to the Parent as a Permitted RIC Distribution in an amount not to exceed the Permitted RIC Cap Amount;
(G) to the payment of amounts described in clause (A) above to the extent not paid thereunder (without regard to any cap or limitation);
(GH) to the payment of amounts described in clause (D) above to the extent not paid thereunder and without regard to any interest payable at the Post-Default Ratecap or limitation;
(HI) to the payment of any Lender’s 's Increased Costs;
(I) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal Costs without regard to any accrued and unpaid Prepayment Make-Whole Premiumcap or limitation;
(J) to the payment to the Services Provider (unless waived or its designee) of any previously deferred Senior Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(K) unless deferred by the Services Provider Asset Manager, which waiver (or its designee)but not deferral) shall be permanent and irrevocable, to the payment to the Services Provider (or its designee) Servicer of (1) all due and unpaid Subordinated Services Fees that have not been waived or deferred on prior Quarterly Monthly Payment Dates and (2) any previously deferred (but not waived) Senior Services Fees or Subordinated Services Fees that the Services Provider Servicer elects to be paid on such Quarterly Monthly Payment Date by notice to the Collateral Agent prior to the related Calculation DateDate (provided that, for the avoidance of doubt, no waived Services Fees shall be payable);
(LK) if the Borrower is party to any Interest Hedge Agreements, to any amounts owing by the Borrower to the Interest Hedge Counterparties under such Interest Hedge Agreements to the extent not paid under clause (B) above (without regard to any cap or limitation);; and
(ML) all remaining Interest Proceeds:
(1) during the Reinvestment Period, at the sole discretion of the Services ProviderServicer, either (i) to the Borrower for payment as directed by the Borrower, including as to make a distribution to the Parent; (ii) to the Collection Account to be applied as Principal Proceeds for the purchase of additional Collateral Loans, (iiiii) to be applied to prepay the principal of the Loans pursuant to Section 2.7, and/or (iviii) for deposit into the Future Funding Reserve AccountAccount and/or (iv) to the Borrower or for payment as directed by the Borrower (including to the holders of the equity of the Borrower); provided that no payments shall be made under this clause (L)(1)(iv) if the Loans have been accelerated in accordance with this Agreement (but only until such acceleration has been rescinded); and
(2) after the Reinvestment Period, to at the Borrower or for payment as directed by sole discretion of the Borrower, either to (i) make a distribution to the Parent; or (ii) be applied to prepay the principal of the Loans pursuant to Section 2.72.7 or (ii) to the Borrower for payment as directed by the Borrower, including to make a distribution to the holders of the equity of the Borrower; provided that no payments shall be made under this clause (L)(2)(ii) if the Loans have been accelerated in accordance with this Agreement (but only until such acceleration has been rescinded).
(ii) On each Quarterly Monthly Payment Date, following the distribution of all Interest Proceeds as set forth in Section 9.1(a)(i) above, Principal Proceeds (other than Principal Proceeds previously reinvested in Collateral Loans or otherwise designated by the Borrower for application pursuant to the parenthetical contained in Section 8.2(a)(ii) or otherwise to provide for any Unsettled Amount) shall be applied as follows; provided that after giving effect to any such payment no Commitment Shortfall would exist (and, to the extent that any Commitment Shortfall would exist, Principal Proceeds shall first be deposited in the Future Funding Reserve Account in the amount needed to eliminate such Commitment Shortfall):
(A) to the payment of unpaid amounts in items (A) through (CE) in Section 9.1(a)(i) above (in such order of priority and in the priority stated therein);
(B) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any interest payable at the Post-Default Rate);
(C) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if an Event of Default or a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied or, with respect to an Event of Default, the Loans are paid in full;
(D) to the payment of any interest payable at the Post-Default Rate;
(E) during the Reinvestment Period, all remaining Principal Proceeds mayProceeds, at the sole discretion of the Services ProviderServicer:
(1) be deposited into to the Collection Account for the purchase of additional Collateral Loans;; and/or
(2) to be applied to prepay the principal of the Loans pursuant to Section 2.7; and/or
(3) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium; provided that, the Lender Advance Rate Test shall be satisfied immediately after giving effect to such payment;
(4) be deposited into the Future Funding Reserve Account; andand/or
(54) so long as no Default or Event of Default has occurred and is continuing or would result, be used to make a any Permitted Parent Distribution.Distribution pursuant to this Agreement;
(FC) after the Reinvestment Period,
(1) first, to be applied to the payment of interest, principal, Commitment Fees and other obligations principal on the Loans until repaid in full;
(2D) secondafter the Reinvestment Period, to the payment of amounts referred to in items (EF) through (JK) in Section 9.1(a)(i) above, in the priority set forth therein but only to the extent not paid in full thereunder; and
(3E) thirdafter the Reinvestment Period, to the Borrower or for payment as directed by the Borrower, including to make a distribution to the Parentholders of the equity of the Borrower.
(b) If on any Quarterly Monthly Payment Date the amount available in the Payment Account from amounts received in the related Due Period is insufficient to make the full amount of the disbursements required pursuant to any clause in the Priority of Payments, the Collateral Agent shall make the disbursements called for in the order and according to the priority set forth under Section 9.1(a) and ratably or in the order provided within the applicable a clause, as applicable, in accordance with the respective amounts owing under any such clause, clause to the extent funds are available therefor.
(c) On each Quarterly Payment Date, the Collateral Administrator (on behalf of the Borrower) shall deliver to the Administrative Agent, the Collateral Agent, the Services Provider and S&P (so long as S&P is rating the Loans) a report (the “Payment Date Report”) containing the information described in Exhibit E hereto pursuant to Section 8.9 specifying the amount of Interest Proceeds (and, of such amount, the amount of Fee Proceeds) and Principal Xxxxxxxx received during the preceding Due Period and the amounts to be applied to each purpose set forth in Section 9.1(a). The information in each Payment Date Report shall be determined as of the Calculation Date immediately preceding the applicable Quarterly Payment Date. For the avoidance of doubt, in any month in which a Quarterly Payment Date occurs, the Collateral Report and the Payment Date Report may be combined into a single report.
(d) In the event that the Services Provider Servicer obtains actual knowledge of or receives written notice that any Interest Hedge Counterparty defaults in the payment of its obligations to the Borrower under any Interest Hedge Agreement on the payment date therefor, the Services Provider Servicer shall notify the Borrower which shall (or the Services Provider Servicer on behalf of the Borrower shall) make a demand on such Interest Hedge Counterparty, or any guarantor, if applicable, demanding payment by 12:00 noon, New York time, on the next Business Day. The Services Provider Servicer shall give notice to the Lenders, the Administrative Agent, S&P, the Borrower and the Collateral Agent upon the continuing failure by such Interest Hedge Counterparty (or applicable guarantor) to perform its obligations for one Business Day following a demand made by the Borrower (or the Services Provider Servicer on behalf of the Borrower) on such Interest Hedge Counterparty.
Appears in 1 contract
Disbursements of Funds from Payment Account. (a) Notwithstanding any other provision of this Agreement other than Section 6.4, but subject to the other subsections of this Section 9.1 and Article II (with respect to optional repayment of Loans), on each Quarterly Payment Date, the Collateral Agent shall disburse amounts transferred to the Payment Account from the Collection Account pursuant to Section 8.2(h) as follows and for application in accordance with the following priorities (the “Priority of Payments”):
(i) On each Quarterly Payment Date, prior to the distribution of any Principal Proceeds, Interest Proceeds shall be applied as follows:
(A) to the payment of the following amounts in the following priority (without duplication): (1) Taxes (but not including any accrued and unpaid Increased Costs), registration and filing fees then due and owing by the Borrower, (2) accrued and unpaid Administrative Expenses in the order set forth in the definition thereof and (3) on any Quarterly Payment Date other than the final Quarterly Payment Date, to the retention in the Collection Account of an amount equal to the Retained Expense Amount for such Quarterly Payment Date; provided that the aggregate amount of payments under this clause (A)(2) and (3) shall not exceed on any Quarterly Payment Date the sum of (a) the Quarterly Cap plus (b) the Retained Expense Amount determined on the immediately prior Quarterly Payment Date less (c) Administrative Expenses paid pursuant to Section 8.2(g) during the Due Period relating to such Quarterly Payment Date;
(B) if the Borrower is party to any Interest Hedge Agreements, to the payment of any amounts owing by the Borrower to the Interest Hedge Counterparties thereunder (exclusive of any early termination or liquidation payment owing by the Borrower by reason of the occurrence of an event of default or termination event thereunder with respect to such Interest Hedge Counterparty where such Interest Hedge Counterparty is the sole affected party or the defaulting party);
(C) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of all due and unpaid Senior Services Fees that have not been deferred on prior Quarterly Payment Dates;
(D) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any the additional two percent of interest payable at the Post-Default Rate);
(E) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied;
(F) to the payment to the Administrative Agent of the Administrative Agent Fee;
(G) to the payment of amounts described in clause (A) above to the extent not paid thereunder (without regard to any cap or limitation);
(GH) first, to the payment of any interest payable at amounts described in clause (D) above to the Post-Default Rate;
(H) extent not paid thereunder, and second, to the payment of any Lender’s Increased Costs;
(I) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium[Reserved];
(J) to the payment to the Services Provider (or its designee) of any previously deferred Senior Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(K) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of (1) all due and unpaid Subordinated Services Fees that have not been deferred on prior Quarterly Payment Dates and (2) any previously deferred Subordinated Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(L) if the Borrower is party to any Interest Hedge Agreements, to any amounts owing by the Borrower to the Interest Hedge Counterparties under such Interest Hedge Agreements to the extent not paid under clause (B) above (without regard to any cap or limitation);
(M) all remaining Interest Proceeds:if the Lender Advance Rate Test is satisfied, to the Lenders for payment of any Make-Whole Fees;
(1) during the Reinvestment Period, at the sole discretion of the Services Provider, either (i) to the Borrower for payment as directed by the Borrower, including as to make a distribution to the Parent; (ii) to the Collection Account to be applied as Principal Proceeds for the purchase of additional Collateral Loans, (iii) to be applied to prepay the principal of the Loans pursuant to Section 2.7, and/or (iv) for deposit into the Future Funding Reserve Account; and
(2) after the Reinvestment Period, to the Borrower or for payment as directed by the Borrower, either to (i) make a distribution to the Parent; or (ii) prepay the principal of the Loans pursuant to Section 2.7.
(ii) On each Quarterly Payment Date, following the distribution of all Interest Proceeds as set forth in Section 9.1(a)(i) above, Principal Proceeds (other than Principal Proceeds previously reinvested in Collateral Loans or otherwise designated by the Borrower for application pursuant to the parenthetical contained in Section 8.2(a)(ii) or otherwise to provide for any Unsettled Amount) shall be applied as follows; provided that after giving effect to any such payment no Commitment Shortfall would exist (and, to the extent that any Commitment Shortfall would exist, Principal Proceeds shall first be deposited in the Future Funding Reserve Account in the amount needed to eliminate such Commitment Shortfall):
(A) to the payment of unpaid amounts in items (A) through (C) in Section 9.1(a)(i) above (in such order of priority stated therein);
(B) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any the additional two percent of interest payable at the Post-Default Rate);
(C) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if an Event of Default or a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied or, with respect to an Event of Default, the Loans are paid in full;
(D) first, to the payment of amounts described in clause (B) above to the extent not paid thereunder, and second, to the payment of any interest payable at the Post-Default RateLender’s Increased Costs[reserved];
(E) during the Reinvestment Period, all remaining Principal Proceeds may, at the sole discretion of the Services Provider:
(1) be deposited into the Collection Account for the purchase of additional Collateral Loans;
(2) be applied to prepay the principal of the Loans pursuant to Section 2.7; and/or
(3) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium; provided that, the Lender Advance Rate Test shall be satisfied immediately after giving effect to such payment;
(4) be deposited into the Future Funding Reserve Account; and
(54) so be usedas long as no Default or Event of Default has occurred and the Lender Advance Rate Test is continuing or would resultsatisfied pro forma for such distributions, be used applied, first, to the payment of amounts described in clause (B) above to the extent not paid thereunder (including the additional two percent of interest payable at the Post-Default Rate), second, to the payment of any Lender’s Increased Costs, and, third, to make a Permitted Parent Distribution.
(F) after the Reinvestment Period,
(1) first, to be applied to the payment of interest, principal, Commitment Fees and other obligations on the Loans until repaid in full;
(2) second, to the payment of amounts referred to in items (E) through (J) in Section 9.1(a)(i) above, in the priority set forth therein but only to the extent not paid in full thereunder; and
(3) third, to the Borrower or for payment as directed by the Borrower, including to make a distribution to the Parent.
of amounts described in clause (bB) If on any Quarterly Payment Date the amount available in the Payment Account from amounts received in the related Due Period is insufficient to make the full amount of the disbursements required pursuant to any clause in the Priority of Payments, the Collateral Agent shall make the disbursements called for in the order and according to the priority set forth under Section 9.1(a) and ratably or in the order provided within the applicable clause, as applicable, in accordance with the respective amounts owing under any such clause, above to the extent funds are available therefor.
not paid thereunder (c) On each Quarterly Payment Dateincluding the additional two percent of interest payable at the Post-Default Rate), the Collateral Administrator (on behalf of the Borrower) shall deliver and then to the Administrative Agent, the Collateral Agent, the Services Provider and S&P (so long as S&P is rating the Loans) a report (the “Payment Date Report”) containing the information described in Exhibit E hereto pursuant to Section 8.9 specifying the amount of Interest Proceeds (and, of such amount, the amount of Fee Proceeds) and Principal Xxxxxxxx received during the preceding Due Period and the amounts to be applied to each purpose set forth in Section 9.1(a). The information in each Payment Date Report shall be determined as of the Calculation Date immediately preceding the applicable Quarterly Payment Date. For the avoidance of doubt, in any month in which a Quarterly Payment Date occurs, the Collateral Report and the Payment Date Report may be combined into a single report.
(d) In the event that the Services Provider obtains actual knowledge of or receives written notice that any Interest Hedge Counterparty defaults in the payment of its obligations to the Borrower under any Interest Hedge Agreement on the payment date therefor, the Services Provider shall notify the Borrower which shall (or the Services Provider on behalf of the Borrower shall) make a demand on such Interest Hedge Counterparty, or any guarantor, if applicable, demanding payment by 12:00 noon, New York time, on the next Business Day. The Services Provider shall give notice to the Lenders, the Administrative Agent, S&P, the Borrower and the Collateral Agent upon the continuing failure by such Interest Hedge Counterparty (or applicable guarantor) to perform its obligations for one Business Day following a demand made by the Borrower (or the Services Provider on behalf of the Borrower) on such Interest Hedge Counterparty.Lender’s Increased Costs; and
Appears in 1 contract
Samples: Credit Agreement (Owl Rock Technology Finance Corp. II)
Disbursements of Funds from Payment Account. (a) Notwithstanding any other provision of in this Agreement other than Section 6.4Agreement, but subject to the other subsections of this Section 9.1 and Article II (with respect to optional repayment of Loans)9.01, on each Quarterly Payment Date, the Collateral Agent shall disburse amounts transferred from the Collection Account to the Payment Account from the Collection Account pursuant to Section 8.2(h) as follows and for application 8.02 in accordance with the following priorities (the “Priority of Payments”):
(i) On each Quarterly Payment Date, prior Interest Proceeds on deposit in the Interest Collection Subaccount, to the distribution of any Principal Proceedsextent received on or before the related Determination Date (or, Interest Proceeds shall if such Determination Date is not a Business Day, the next succeeding Business Day) will be transferred into the Payment Account, to be applied as followsin the following order of priority:
(A) to the payment pay taxes, registration, registered office and filing fees, if any, of the following amounts in Borrower or any subsidiary of the following priority Borrower;
(without duplication): B) (1) Taxes (but not including first, to pay all out-of-pocket costs and expenses of the Collateral Agent incurred in connection with any accrued and unpaid Increased Costs), registration and filing fees then due and owing by the Borrower, sale of Collateral or exercise of other remedial rights pursuant to Section 7.03; (2) accrued and unpaid second, to pay other Administrative Expenses in accordance with the order set forth priorities specified in the definition thereof and (3) on any Quarterly Payment Date other than the final Quarterly Payment Date, to the retention in the Collection Account of an amount equal to the Retained Expense Amount for such Quarterly Payment Datethereof; provided that the aggregate amount of payments under this in clause (A)(2) and (32) shall not exceed on any Quarterly Payment Date the sum of (a) the Quarterly Administrative Expense Cap plus (b) the Retained Expense Amount determined on the immediately prior Quarterly Payment Date less (c) Administrative Expenses paid pursuant to Section 8.2(g) during the Due Period relating to for such Quarterly Payment Date;
(BC) if prior to the Borrower is party to any Interest Hedge Agreementsoccurrence of a Default or an Event of Default, to the payment Collateral Manager to pay the Collateral Management Fee, plus any Collateral Management Fee that remains due and unpaid in respect of any amounts owing by the Borrower to the Interest Hedge Counterparties thereunder (exclusive prior Payment Dates as a result of any early termination or liquidation payment owing by the Borrower by reason of the occurrence of an event of default or termination event thereunder with respect to such Interest Hedge Counterparty where such Interest Hedge Counterparty is the sole affected party or the defaulting party);
(C) unless deferred by the Services Provider (or its designee)insufficient funds, except, in each case, to the payment extent that the Collateral Manager elects to the Services Provider (defer such current or its designee) of all previously due and unpaid Senior Services Fees that have not been deferred on prior Quarterly Payment Dates;Collateral Management Fee pursuant to this Agreement
(D) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any interest payable at the Post-Default Rate);
(E) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if a Market Trigger has occurred and is continuingeach Lender, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied;
(F) to the payment of amounts described in clause (A) above to the extent not paid thereunder (without regard to any cap or limitation);
(G) to the payment of any interest payable at the Post-Default Rate;
(H) to the payment of any Lender’s Increased Costs;
(I) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any pay accrued and unpaid Interest on the Advances, Commitment Fees and Prepayment Make-Whole PremiumFees due to each such Lender and amounts payable to each such Lender under Section 2.10;
(J) to the payment to the Services Provider (or its designee) of any previously deferred Senior Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(K) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of (1) all due and unpaid Subordinated Services Fees that have not been deferred on prior Quarterly Payment Dates and (2) any previously deferred Subordinated Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(L) if the Borrower is party to any Interest Hedge Agreements, to any amounts owing by the Borrower to the Interest Hedge Counterparties under such Interest Hedge Agreements to the extent not paid under clause (B) above (without regard to any cap or limitation);
(M) all remaining Interest Proceeds:
(1) during the Reinvestment Period, prior to the occurrence of a Default or an Event of Default, (x) if the Borrowing Base Test or the Net Equity Test is not satisfied as of the relevant Determination Date, to pay principal of the Advances of each Lender (pro rata, based on each Lender’s Percentage) until each of the Borrowing Base Test and the Net Equity Test is satisfied (on a pro forma basis as at such Determination Date) and (y) if the Cash Diversion Test is not satisfied as of the relevant Determination Date, the remainder (A) to the Cash Diversion Reserve Account in an amount not to exceed the Cash Diversion Required Amount or (B) in the case of an Equity Coverage Deficiency, to prepay the Advances in an amount sufficient to cure such Equity Coverage Deficiency, and (2) after the occurrence and during the continuance of a Default or an Event of Default, to pay the principal of the Advances of each Lender (pro rata, based on each Lender’s Percentage) until paid in full;
(F) during the Amortization Period, an amount equal to the Mandatory Amortization Amount;
(G) to the payment or application of amounts referred to in clause (B) above (in the same order of priority specified therein), to the extent not paid in full pursuant to applications under such clauses;
(H) to pay all other Obligations then due and owing (other than Advances Outstanding), including accrued and unpaid amounts owing to Affected Persons (if any) under Sections 2.09 and 12.03;
(I) to the payment or application of amounts referred to in clause (C) above, to the extent not paid in full pursuant to the application under such clause;
(J) during the Reinvestment Period, the remainder to be allocated at the sole discretion of the Services Provider, either Collateral Manager (iin written notice to the Agents delivered on or prior to the related Determination Date) to any one or more of the following payments: (1) to the Borrower for payment as directed by the Borrower, including as to make a distribution to the Parent; (ii) to the Principal Collection Account to be applied as Principal Proceeds Subaccount for the purchase of additional Collateral Loans and the funding of Delayed Drawdown Collateral Loans and Revolving Collateral Loans, (iii2) to be applied to prepay the principal of the Loans pursuant to Section 2.7Advances, and/or (iv3) for deposit into the Future Funding Unfunded Reserve Account; andAccount or (4) to the Borrower or its designee, which amounts may be distributed to the Equityholder;
(2K) after the Reinvestment Period, to be allocated at the discretion of the Collateral Manager (in written notice to the Agents delivered on or prior to the related Determination Date) to any one or more of the following payments: (1) to prepay the Advances or (2) for deposit into the Unfunded Reserve Account until the amounts on deposit therein are equal to the Unfunded Reserve Required Amount; and
(L) to the Borrower or for payment as directed by the Borrowerits designee, either to (i) make a distribution which amounts may be distributed to the Parent; or (ii) prepay the principal of the Loans pursuant to Section 2.7Equityholder.
(ii) On each Quarterly Payment Date, following except for any Principal Proceeds that will be used to settle binding commitments entered into prior to the distribution related Determination Date for the purchase of all Interest Proceeds as set forth in Section 9.1(a)(i) aboveCollateral Loans, Principal Proceeds (other than on deposit in the Principal Proceeds previously reinvested in Collateral Loans or otherwise designated by the Borrower for application pursuant to the parenthetical contained in Section 8.2(a)(ii) or otherwise to provide for any Unsettled Amount) shall be applied as follows; provided that after giving effect to any such payment no Commitment Shortfall would exist (and, Collection Subaccount to the extent received on or before the related Determination Date (or, if such Determination Date is not a Business Day, the next succeeding Business Day) and that any Commitment Shortfall would exist, Principal Proceeds shall first be deposited are not designated for reinvestment by the Collateral Manager and amounts on deposit in the Future Funding Cash Diversion Reserve Account designated for deposit into the Principal Collection Subaccount pursuant to Section 8.05 will be transferred to the Payment Account to be applied in the amount needed to eliminate such Commitment Shortfall):following order of priority:
(A) to the payment of unpaid amounts in items under clauses (A) through (CI) in Section 9.1(a)(iclause (i) above (in such the same order of priority stated specified therein);
(B) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any interest payable at the Post-Default Rate);
(C) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if an Event of Default or a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied or, with respect to an Event of Default, the Loans are paid in full;
(D) to the payment of any interest payable at the Post-Default Rate;
(E) during the Reinvestment Period, all remaining Principal Proceeds may, at the sole discretion of the Services Provider:
(1) be deposited into the Collection Account for the purchase of additional Collateral Loans;
(2) be applied to prepay the principal of the Loans pursuant to Section 2.7; and/or
(3) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium; provided that, the Lender Advance Rate Test shall be satisfied immediately after giving effect to such payment;
(4) be deposited into the Future Funding Reserve Account; and
(5) so long as no Default or Event of Default has occurred and is continuing or would result, be used to make a Permitted Parent Distribution.
(F) after the Reinvestment Period,
(1) first, to be applied to the payment of interest, principal, Commitment Fees and other obligations on the Loans until repaid in full;
(2) second, to the payment of amounts referred to in items (E) through (J) in Section 9.1(a)(i) above, in the priority set forth therein but only to the extent not paid in full thereunder;
(B) during the Reinvestment Period, at the discretion of the Collateral Manager, all remaining amounts shall be allocated to any one or more of the following payments: (1) to the Principal Collection Subaccount for the purchase of additional Collateral Loans and the funding of Delayed Drawdown Collateral Loans and Revolving Collateral Loans or (2) for deposit into the Unfunded Reserve Account until the amounts on deposit therein are equal to the Unfunded Reserve Required Amount;
(C) for deposit into the Unfunded Reserve Account until the amounts on deposit therein are equal to the Unfunded Reserve Required Amount;
(D) after the Reinvestment Period, to pay the Advances of each Lender (pro rata, based on each Lender’s Percentage) until the Advances are paid in full; provided that if the amount on deposit in the Unfunded Reserve Account equals or exceeds the amount of outstanding Advances, the Borrower (or the Collateral Manager on its behalf) may elect to withdraw such amounts from the Unfunded Reserve Account and repay the Advances in full; and
(3E) third, to the Borrower or for payment as directed by the Borrowerits designee, including to make a distribution which amounts may be distributed to the ParentEquityholder.
(b) If on any Quarterly Payment Date the amount available in the Payment Account from amounts received in the related Due Period is insufficient to make the full amount of the disbursements required pursuant to any clause in by the Priority of PaymentsPayment Date Report, the Collateral Agent shall make the disbursements called for in the order and according to the priority set forth under Section 9.1(a9.01(a) and ratably or in the order provided within the applicable clause, as applicable, in accordance with the respective amounts owing under any such clause, to the extent funds are available therefor.
(c) On each Quarterly Payment Date, the Collateral Administrator (on behalf of the Borrower) shall deliver to the Administrative Agent, the Collateral Agent, the Services Provider and S&P (so long as S&P is rating the Loans) a report (the “Payment Date Report”) containing the information described in Exhibit E hereto pursuant to Section 8.9 specifying the amount of Interest Proceeds (and, of such amount, the amount of Fee Proceeds) and Principal Xxxxxxxx received during the preceding Due Period and the amounts to be applied to each purpose set forth in Section 9.1(a). The information in each Payment Date Report shall be determined as of the Calculation Date immediately preceding the applicable Quarterly Payment Date. For the avoidance of doubt, in any month in which a Quarterly Payment Date occurs, the Collateral Report and the Payment Date Report may be combined into a single report.
(d) In the event that the Services Provider obtains actual knowledge of or receives written notice that any Interest Hedge Counterparty defaults in the payment of its obligations to the Borrower under any Interest Hedge Agreement on the payment date therefor, the Services Provider shall notify the Borrower which shall (or the Services Provider on behalf of the Borrower shall) make a demand on such Interest Hedge Counterparty, or any guarantor, if applicable, demanding payment by 12:00 noon, New York time, on the next Business Day. The Services Provider shall give notice to the Lenders, the Administrative Agent, S&P, the Borrower and the Collateral Agent upon the continuing failure by such Interest Hedge Counterparty (or applicable guarantor) to perform its obligations for one Business Day following a demand made by the Borrower (or the Services Provider on behalf of the Borrower) on such Interest Hedge Counterparty.
Appears in 1 contract
Disbursements of Funds from Payment Account. (a) Notwithstanding any other provision of this Agreement other than Section 6.4, but subject to the other subsections of this Section 9.1 and Article II (with respect to optional repayment of Loans), on each Quarterly Payment Date, the Collateral Agent shall disburse amounts transferred to the Payment Account from the Collection Account pursuant to Section 8.2(h8.2(e) as follows and for application in accordance with the following priorities (the “"Priority of Payments”"):
(i) On each Quarterly Payment Date, prior to the distribution of any Principal Proceeds, Interest Proceeds shall be applied as follows:
(A) to the payment of the following amounts in the following priority (without duplication): (1) Taxes taxes (but not including any accrued and unpaid Increased Costs, which are addressed solely by Sections 9.1(a)(i)(G) and 9.1(a)(ii)(D)), registration and filing fees then due and owing by the Borrower, ;
(2B) to the payment of the following amounts in the following priority (without duplication):
(1) accrued and unpaid Administrative Expenses in the order set forth in the definition thereof and thereof; and
(32) on any Quarterly Payment Date other than the final Quarterly Payment Date, to the retention in the Collection Account of an amount equal to the Retained Expense Amount for such Quarterly Payment Date; provided that the aggregate amount of payments under this clause (A)(2) and (3B) shall not exceed on any Quarterly Payment Date the sum of (a) the Quarterly Cap plus (b) the Retained Expense Amount determined on the immediately prior Quarterly Payment Date less (c) Administrative Expenses paid pursuant to Section 8.2(g8.2(d) during the Due Period relating to such Quarterly Payment Date;
(BC) if the Borrower is party to any Interest Hedge Agreements, to the payment of any amounts owing by the Borrower to the Interest Hedge Counterparties thereunder (exclusive of any early termination or liquidation payment owing by the Borrower by reason of the occurrence of an event of default or termination event thereunder with respect to such Interest Hedge Counterparty where such Interest Hedge Counterparty is the sole affected party or the defaulting party);
(CD) unless waived or deferred by the Services Provider Collateral Manager (or its designee), which waiver (but not deferral) shall be permanent and irrevocable, to the payment to the Services Provider Collateral Manager (or its designee) of all due and unpaid Senior Services Management Fees that have not been deferred on prior Quarterly Payment DatesDates (provided that, for the avoidance of doubt, no deferred Collateral Management Fees shall be payable pursuant to this clause (D));
(DE) to the Lenders for payment (on a pro rata basis) of accrued interest on the Loans and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date, including with respect to the first Quarterly Payment Date (excluding to occur after the Effective Date, all accrued and unpaid interest and Commitment Fees in respect of the Existing Loans, excluding, in each case, in the case of interest, any interest payable at the Post-Default Rate)Capped Amounts;
(EF) if any of the Coverage Tests are is not satisfied as of the related Calculation Date or if a Market Trigger has occurred and is continuingDate, (1) to the prepayment repayment of principal of the Loans and the Future Funding Reserve Account (to be allocated to the Loans and the Future Funding Reserve Account according to the Principal Allocation Formula), or (2) until only if the outstanding principal amount of the Loans equals zero (both before and after giving effect to any payment made pursuant to clause (1)), to deposit in the Future Funding Reserve Account, in each case in the amount necessary to result in the satisfaction of the Coverage Tests (on a pro forma basis as of such tests are satisfiedCalculation Date);
(FG) to the applicable Lenders on a pro rata basis for payment of accrued and unpaid Increased Costs, including with respect to the first Quarterly Payment Date to occur after the Effective Date, any unpaid Increased Costs in respect of the Existing Loans;
(H) to the payment of amounts described in clause (AB) above to the extent not paid thereunder (without regard to any cap or limitation);
(GI) to the payment of any interest payable at the Post-Default Rate;
amounts described in clause (HE) above to the payment of extent not paid thereunder (without regard to any Lender’s Increased Costs;
(I) prior cap or limitation), including with respect to and including the end first Quarterly Payment Date to occur after the Effective Date, any such unpaid amounts in respect of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole PremiumExisting Loans;
(J) to the payment to the Services Provider Collateral Manager (or its designee) of any previously deferred Senior Services Management Fees that the Services Provider Collateral Manager elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(K) unless waived or deferred by the Services Provider Collateral Manager (or its designee), which waiver (but not deferral) shall be permanent and irrevocable, to the payment to the Services Provider Collateral Manager (or its designee) of (1) all due and unpaid Subordinated Services Management Fees that have not been deferred on prior Quarterly Payment Dates and (2) any previously deferred Subordinated Services Management Fees that the Services Provider Collateral Manager elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(L) if the Borrower is party to any Interest Hedge Agreements, to any amounts owing by the Borrower to the Interest Hedge Counterparties under such Interest Hedge Agreements to the extent not paid under clause (BC) above (without regard to any cap or limitation)above;
(M) all remaining Interest Proceeds:
(1) during the Reinvestment Period, at the sole discretion of the Services ProviderCollateral Manager, either (i) to the Borrower for payment as directed by the Borrower, including as to make a distribution to the Parent; (ii) to the Collection Account to be applied as Principal Proceeds for the purchase of additional Collateral Loans, (iiiii) to be applied to prepay the principal of the Loans pursuant to Section 2.72.7 in accordance with the Principal Allocation Formula, and/or (iviii) for deposit into the Future Funding Reserve AccountAccount and/or (iv) to the equity of the Borrower; and
(2) after the Reinvestment Period, to at the Borrower or for payment as directed by sole discretion of the Borrower, either to (i) make a distribution to the Parent; or (ii) be applied to prepay the principal of the Loans pursuant to Section 2.72.7 in accordance with the Principal Allocation Formula or (ii) to the equity of the Borrower.
(ii) On each Quarterly Payment Date, following the distribution of all Interest Proceeds as set forth in Section 9.1(a)(i) above, Principal Proceeds (other than Principal Proceeds previously reinvested in Collateral Loans or otherwise designated by the Borrower for application pursuant to the parenthetical contained in Section 8.2(a)(ii) or otherwise to provide for any Unsettled Amount)) shall be applied as follows; , provided that after giving effect to any such payment no Commitment Shortfall would exist (and, to the extent that any Commitment Shortfall would exist, Principal Proceeds shall first be deposited in the Future Funding Reserve Account in the amount needed to eliminate such Commitment Shortfall):
(A) to the payment of unpaid the amounts referred to in items clauses (A) through (CF) in Section 9.1(a)(iof subsection (i) above (in such order of the priority stated thereintherein and subject to the proviso in clause (B) of subsection (i) above), but only to the extent not paid in full thereunder;
(B) during the Reinvestment Period, all remaining Principal Proceeds, at the sole discretion of the Collateral Manager:
(1) to the Lenders Collection Account for payment the purchase of additional Collateral Loans; and/or
(on a pro rata basis2) to be applied to prepay the principal of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date pursuant to Section 2.7 in accordance with the Principal Allocation Formula; and/or
(excluding any interest payable at 3) to be deposited into the Post-Default Rate)Future Funding Reserve Account;
(C) if any of after the Coverage Tests are not satisfied as of the related Calculation Date or if an Event of Default or a Market Trigger has occurred and is continuingReinvestment Period, to be applied to the prepayment payment of principal of on the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied or, with respect to an Event of Default, the Loans are paid repaid in full;
(D) to the payment of any interest payable at the Post-Default Rateamounts referred to in clause (G) of subsection (i) above, but only to the extent not paid in full thereunder;
(E) during the Reinvestment Period, all remaining Principal Proceeds may, at the sole discretion of the Services Provider:
(1) be deposited into the Collection Account for the purchase of additional Collateral Loans;
(2) be applied to prepay the principal of the Loans pursuant to Section 2.7; and/or
(3) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium; provided that, the Lender Advance Rate Test shall be satisfied immediately after giving effect to such payment;
(4) be deposited into the Future Funding Reserve Account; and
(5) so long as no Default or Event of Default has occurred and is continuing or would result, be used to make a Permitted Parent Distribution.
(F) after the Reinvestment Period,
(1) first, to be applied to the payment of interest, principal, Commitment Fees and other obligations on the Loans until repaid in full;
(2) second, to the payment of amounts referred to in items clauses (EH) through (JL) in Section 9.1(a)(iof subsection (i) above, in the priority set forth therein but only to the extent not paid in full thereunder; and
(3F) thirdafter the Reinvestment Period, to the Borrower or for payment as directed by equity of the Borrower, including to make a distribution to the Parent.
(b) If on any Quarterly Payment Date the amount available in the Payment Account from amounts received in the related Due Period is insufficient to make the full amount of the disbursements required pursuant to any clause in the Priority of Payments, the Collateral Agent shall make the disbursements called for in the order and according to the priority set forth under Section 9.1(a) and ratably or in the order provided within the applicable a clause, as applicable, in accordance with the respective amounts owing under any such clause, clause to the extent funds are available therefor.
(c) On each Quarterly Payment Date, the Collateral Administrator Agent (on behalf of the Borrower) shall deliver to the Administrative Agent, the Collateral Agent, the Services Provider Agent and S&P to DBRS (so long as S&P DBRS is rating the Loans) a report (the “"Payment Date Report”") containing the information described in Exhibit E F hereto pursuant to Section 8.9 specifying the amount of Interest Proceeds (and, of such amount, the amount of Fee Proceeds) and Principal Xxxxxxxx Proceeds received during the preceding Due Period and Period, the amounts to be applied to each purpose set forth in Section 9.1(a), and a calculation of the Net Aggregate Exposure Amount (which shall be determined based on information provided by the Borrower to the Collateral Agent including any Revolving Collateral Loans and Delayed Funding Loans and the unpaid purchase price of all Collateral Loans that the Borrower entered into binding commitments before the end of the Reinvestment Period to originate or purchase after the end of the Reinvestment Period). The information in each Payment Date Report shall be determined as of the Calculation Date immediately preceding the applicable Quarterly Payment Date. For the avoidance of doubt, in any month in which a Quarterly Payment Date occurs, the Collateral Report and the Payment Date Report may be combined into a single report.
(d) In the event that the Services Provider Collateral Agent obtains actual knowledge of or receives written notice that any Interest Hedge Counterparty defaults in the payment of its obligations to the Borrower under any Interest Hedge Agreement on the payment date therefor, the Services Provider Collateral Agent shall notify the Borrower which shall (or the Services Provider Collateral Agent on behalf of the Borrower shall) make a demand on such Interest Hedge Counterparty, or any guarantor, if applicable, demanding payment by 12:00 noon, New York time, on the next Business Day. The Services Provider Collateral Agent shall give notice to the Lenders, the Administrative Agent, S&P, the Borrower and the Collateral Agent Manager upon the continuing failure by such Interest Hedge Counterparty (or applicable guarantor) to perform its obligations for one Business Day following a demand made by the Borrower (or the Services Provider Collateral Manager on behalf of the Borrower) on such Interest Hedge Counterparty.
(e) All amounts to be paid to the Borrower under this Section 9.1 shall be paid to such account as the Borrower may designate and upon such payment will be released from the lien of this Agreement.
(f) Notwithstanding any other provision in this Agreement but subject to Section 6.4, the Collateral Agent shall disburse amounts on deposit in the Collection Account representing Principal Proceeds to the equityholders of the Borrower on any day during the Reinvestment Period occurring after the Ramp-Up Period at the written direction of the Borrower (accompanied by the certification of the Collateral Manager referred to in clause (B) below), so long as, (A) on a pro forma basis after giving effect to such distribution, (i) each Collateral Quality Test is satisfied, (ii) the Portfolio Advance Rate is less than or equal to the Maximum Advance Rate, (iii) each Coverage Test is satisfied and has continuously been satisfied historically, (iv) no Commitment Shortfall exists, (v) no Default or Event of Default has occurred and is continuing, (vi) the MV Overcollateralization Ratio Test is satisfied and (vii) the cumulative amount of distributions pursuant to this clause will not, at any time, exceed 20% of the Borrower's contributed equity capital, as measured on the Business Day immediately preceding the day the first distribution is made pursuant to this clause (such amount, the "Primary Limitation Amount"); provided that, on any Business Day that (x) the cumulative amount of equity capital subsequently contributed to the Borrower since the date of the first distribution pursuant to this clause (f) equals or exceeds the Primary Limitation Amount and (y) the Borrower directs the Collateral Agent to disburse amounts pursuant to this clause (f), such limitation amount in respect of this subclause (vii) will be reset to equal 20% of the Borrower's contributed equity capital as measured on the Business Day immediately preceding the date of such distribution; provided further that the Borrower may only reset the Primary Limitation Amount once, and (B) the Collateral Manager shall have provided the Administrative Agent and the Collateral Agent with a certificate demonstrating compliance with each requirement set forth in the foregoing clauses (A)(i) through (vii); provided further that, notwithstanding the foregoing provisions of this Section 9.1(f) (including the tests set forth above) or any other provision of this Agreement to the contrary, on the Effective Date, subject to receipt by the Agents of the certified report referred to in Section 3.1(j), the Collateral Agent shall disburse proceeds on such date to the equityholders of the Borrower from (x) the Collection Account constituting Principal Proceeds in an amount equal to $7,437,723.00, (y) the proceeds of the Class A-R Borrowing made on the Effective Date in an amount equal to $43,608,202.00 and (z) the proceeds of the Class A-T-1 Borrowing made on the Effective Date in an amount equal to $50,000,000.00.
Appears in 1 contract
Samples: Credit Agreement (Fifth Street Senior Floating Rate Corp.)
Disbursements of Funds from Payment Account. (a) Notwithstanding any other provision of in this Agreement other than Section 6.4Agreement, but subject to the other subsections of this Section 9.1 and Article II (with respect to optional repayment of Loans)9.01, on each Quarterly Payment Date, the Collateral Agent shall disburse amounts transferred from the Collection Account to the Payment Account from the Collection Account pursuant to Section 8.2(h) as follows and for application 8.02 in accordance with the following priorities (the “Priority of Payments”):
(i) On each Quarterly Payment Date, prior Interest Proceeds on deposit in the Interest Collection Subaccount (including amounts transferred from the Cash Diversion Reserve Account pursuant to Section 8.05), to the distribution of any Principal Proceedsextent received on or before the related Determination Date (or, Interest Proceeds shall if such Determination Date is not a Business Day, the next succeeding Business Day) will be transferred into the Payment Account, to be applied as followsin the following order of priority:
(A) to the payment pay taxes, registration, registered office and filing fees, if any, of the following amounts in Borrower or any subsidiary of the following priority Borrower;
(without duplication): B) (1) Taxes (but not including first, to pay all out-of-pocket costs and expenses of the Collateral Agent incurred in connection with any accrued and unpaid Increased Costs), registration and filing fees then due and owing by the Borrower, sale of Collateral or exercise of other remedial rights pursuant to Section 7.03; (2) accrued and unpaid second, to pay other Administrative Expenses in accordance with the order set forth priorities specified in the definition thereof and (3) on any Quarterly Payment Date other than the final Quarterly Payment Date, to the retention in the Collection Account of an amount equal to the Retained Expense Amount for such Quarterly Payment Datethereof; provided that the aggregate amount of payments under in this clause (A)(2) and (3B)(2) shall not exceed on any Quarterly Payment Date the sum of (a) the Quarterly Administrative Expense Cap plus (b) the Retained Expense Amount determined on the immediately prior Quarterly Payment Date less (c) Administrative Expenses paid pursuant to Section 8.2(g) during the Due Period relating to for such Quarterly Payment Date;
(BC) if prior to the Borrower is party to any Interest Hedge Agreementsoccurrence of a Default or an Event of Default, to the payment Collateral Manager, to pay the Collateral Management Fee, plus any Collateral Management Fee that remains due and unpaid in respect of any amounts owing by the Borrower to the Interest Hedge Counterparties thereunder (exclusive prior Payment Dates as a result of any early termination or liquidation payment owing by the Borrower by reason of the occurrence of an event of default or termination event thereunder with respect to such Interest Hedge Counterparty where such Interest Hedge Counterparty is the sole affected party or the defaulting party);
(C) unless deferred by the Services Provider (or its designee)insufficient funds, except, in each case, to the payment extent that the Collateral Manager elects to the Services Provider (defer such current or its designee) of all previously due and unpaid Senior Services Fees that have not been deferred on prior Quarterly Payment DatesCollateral Management Fee pursuant to this Agreement;
(D) to the Lenders for payment (on a pro rata basis) of each Lender, to pay accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) unpaid Interest on the Loans Advances and Prepayment Fees due on to each such Quarterly Payment Date (excluding any interest Lender and amounts payable at the Post-Default Rate)to each such Lender under Section 2.10;
(E) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans Cash Diversion Reserve Account, in an amount necessary to cure (to be allocated to the Loans according to the Principal Allocation Formula1) until such tests are satisfiedany Borrowing Base Deficiency and (2) any Equity Coverage Deficiency;
(F) to pay all Administrative Agent and Lender Expenses in accordance with the payment of amounts described priorities specified in clause (A) above to the extent not paid thereunder (without regard to any cap or limitation)definition thereof;
(G) after the occurrence and during the continuance of a Default or an Event of Default, to pay the payment principal of any interest payable at the Post-Default RateAdvances of each Lender (pro rata, based on each Lender’s Percentage) until Paid in Full;
(H1) to the payment of any Lender’s Increased Costs;
(I) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium;
(J) to the payment to the Services Provider (or its designee) of any previously deferred Senior Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(K) unless deferred by the Services Provider (or its designee)first, to the payment or application of amounts referred to the Services Provider (or its designee) of (1) all due and unpaid Subordinated Services Fees that have not been deferred on prior Quarterly Payment Dates and (2) any previously deferred Subordinated Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(L) if the Borrower is party to any Interest Hedge Agreements, to any amounts owing by the Borrower to the Interest Hedge Counterparties under such Interest Hedge Agreements to the extent not paid under in clause (B) above (without regard to any cap or limitationin the same order of priority specified therein);
(M) all remaining Interest Proceeds:
(1) during the Reinvestment Period, at the sole discretion of the Services Provider, either (i) to the Borrower for payment as directed by the Borrower, including as to make a distribution to the Parent; (ii) to the Collection Account to be applied as Principal Proceeds for the purchase of additional Collateral Loans, (iii) to be applied to prepay the principal of the Loans pursuant to Section 2.7, and/or (iv) for deposit into the Future Funding Reserve Account; and
(2) after the Reinvestment Period, to the Borrower or for payment as directed by the Borrower, either to (i) make a distribution to the Parent; or (ii) prepay the principal of the Loans pursuant to Section 2.7.
(ii) On each Quarterly Payment Date, following the distribution of all Interest Proceeds as set forth in Section 9.1(a)(i) above, Principal Proceeds (other than Principal Proceeds previously reinvested in Collateral Loans or otherwise designated by the Borrower for application pursuant to the parenthetical contained in Section 8.2(a)(ii) or otherwise to provide for any Unsettled Amount) shall be applied as follows; provided that after giving effect to any such payment no Commitment Shortfall would exist (and, to the extent that any Commitment Shortfall would exist, Principal Proceeds shall first be deposited not Paid in the Future Funding Reserve Account in the amount needed Full pursuant to eliminate applications under such Commitment Shortfall):
(A) clauses and without reference to the payment of unpaid amounts in items (A) through (C) in Section 9.1(a)(i) above (in such order of priority stated Administrative Expense Cap specified therein);
(B) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any interest payable at the Post-Default Rate);
(C) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if an Event of Default or a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied or, with respect to an Event of Default, the Loans are paid in full;
(D) to the payment of any interest payable at the Post-Default Rate;
(E) during the Reinvestment Period, all remaining Principal Proceeds may, at the sole discretion of the Services Provider:
(1) be deposited into the Collection Account for the purchase of additional Collateral Loans;
(2) be applied to prepay the principal of the Loans pursuant to Section 2.7; and/or
(3) prior to and including the end of the Non-Call Periodsecond, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium; provided that, the Lender Advance Rate Test shall be satisfied immediately after giving effect to such payment;
(4) be deposited into the Future Funding Reserve Account; and
(5) so long as no Default or Event of Default has occurred and is continuing or would result, be used to make a Permitted Parent Distribution.
(F) after the Reinvestment Period,
(1) first, to be applied to the payment of interest, principal, Commitment Fees and other obligations on the Loans until repaid in full;
(2) secondcontinuing, to the payment or application of amounts referred to in items clause (EC) above, to the extent not Paid in Full pursuant to the application under such clause and (3) third, to pay all other Obligations then due and owing (other than Advances Outstanding), including accrued and unpaid amounts owing to Affected Persons (if any) under Sections 2.09 and 12.03;
(I) for deposit into the Unfunded Reserve Account until the amounts on deposit therein are equal to the Unfunded Reserve Required Amount;
(J) if so elected by the Collateral Manager (in written notice to the Agents delivered on or prior to the related Determination Date) to be allocated at the discretion of the Collateral Manager to prepay the principal of the Advances of each Lender (pro rata, based on each Lender’s Percentage); and
(K) so long as no Default or Event of Default has occurred or is continuing or would result therefrom, to the Borrower or its designee, which amounts may be distributed to the Equityholder.
(ii) On each Payment Date, Principal Proceeds on deposit in the Principal Collection Subaccount (including amounts transferred from the Cash Diversion Reserve Account pursuant to Section 8.05) to the extent received on or before the related Determination Date (or, if such Determination Date is not a Business Day, the next succeeding Business Day) will be transferred to the Payment Account to be applied in the following order of priority:
(A) to the payment of unpaid amounts under clauses (A) through (JD) in Section 9.1(a)(iclause (i) above, above (in the same order of priority set forth therein but only specified therein), to the extent not paid in full thereunder;
(B) to pay the Advances of each Lender (pro rata, based on each Lender’s Percentage) until the Advances are paid in full;
(C) to the payment of unpaid Administrative Agent and Lender Expenses, to the extent not paid in full under clause (F) in clause (i) above;
(D) to the payment of unpaid amounts under clause (H) in clause (i) above (in the same order of priority specified therein and without giving effect to the cap specified in such clause), to the extent not paid in full thereunder;
(E) to pay all other Obligations then due and owing; and
(3F) third, to the Borrower or for payment as directed by the Borrowerits designee, including to make a distribution which amounts may be distributed to the ParentEquityholder.
(b) If on any Quarterly Payment Date the amount available in the Payment Account from amounts received in the related Due Period is insufficient to make the full amount of the disbursements required pursuant to any clause in by the Priority of PaymentsPayment Date Report, the Collateral Agent shall make the disbursements called for in the order and according to the priority set forth under Section 9.1(a9.01(a) and ratably or in the order provided within the applicable clause, as applicable, in accordance with the respective amounts owing under any such clause, to the extent funds are available therefor.
(c) On each Quarterly Payment Date, the Collateral Administrator (on behalf of the Borrower) shall deliver to the Administrative Agent, the Collateral Agent, the Services Provider and S&P (so long as S&P is rating the Loans) a report (the “Payment Date Report”) containing the information described in Exhibit E hereto pursuant to Section 8.9 specifying the amount of Interest Proceeds (and, of such amount, the amount of Fee Proceeds) and Principal Xxxxxxxx received during the preceding Due Period and the amounts to be applied to each purpose set forth in Section 9.1(a). The information in each Payment Date Report shall be determined as of the Calculation Date immediately preceding the applicable Quarterly Payment Date. For the avoidance of doubt, in any month in which a Quarterly Payment Date occurs, the Collateral Report and the Payment Date Report may be combined into a single report.
(d) In the event that the Services Provider obtains actual knowledge of or receives written notice that any Interest Hedge Counterparty defaults in the payment of its obligations to the Borrower under any Interest Hedge Agreement on the payment date therefor, the Services Provider shall notify the Borrower which shall (or the Services Provider on behalf of the Borrower shall) make a demand on such Interest Hedge Counterparty, or any guarantor, if applicable, demanding payment by 12:00 noon, New York time, on the next Business Day. The Services Provider shall give notice to the Lenders, the Administrative Agent, S&P, the Borrower and the Collateral Agent upon the continuing failure by such Interest Hedge Counterparty (or applicable guarantor) to perform its obligations for one Business Day following a demand made by the Borrower (or the Services Provider on behalf of the Borrower) on such Interest Hedge Counterparty.
Appears in 1 contract
Samples: Credit and Security Agreement (Oxford Square Capital Corp.)
Disbursements of Funds from Payment Account. (a) Notwithstanding any other provision of this Agreement other than Section 6.4, but subject to the other subsections of this Section 9.1 and Article II (with respect to optional repayment of Loans), on each Quarterly Payment Date, the Collateral Agent shall disburse amounts transferred to the Payment Account from the Collection Account pursuant to Section 8.2(h8.2(e) as follows and for application in accordance with the following priorities (the “Priority of Payments”):
(i) On each Quarterly Payment Date, prior to the distribution of any Principal Proceeds, Interest Proceeds shall be applied as follows:
(A) to the payment of the following amounts in the following priority (without duplication): (1) Taxes (but not including any accrued and unpaid Increased Costs), registration and filing fees then due and owing by the Borrower and by the owner of Borrower, if Borrower is treated for U.S. federal income tax purposes as an entity disregarded as separate from a sole owner, in respect of Borrower or its assets, (2) accrued and unpaid Administrative Expenses in the order set forth in the definition thereof and (3) on any Quarterly Payment Date other than the final Quarterly Payment Date, to the retention in the Collection Account of an amount equal to the Retained Expense Amount for such Quarterly Payment Date; provided that the aggregate amount of payments under this clause (A)(2) and (3) shall not exceed on any Quarterly Payment Date the sum of (a) the Quarterly Cap plus (b) the Retained Expense Amount determined on the immediately prior Quarterly Payment Date less (c) Administrative Expenses paid pursuant to Section 8.2(g8.2(d) during the Due Period relating to such Quarterly Payment Date;
(B) if the Borrower is party to any Interest Hedge Agreements, to the payment of any amounts owing by the Borrower to the Interest Hedge Counterparties thereunder (exclusive of any early termination or liquidation payment owing by the Borrower by reason of the occurrence of an event of default or termination event thereunder with respect to such Interest Hedge Counterparty where such Interest Hedge Counterparty is the sole affected party or the defaulting party);
(C) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of all due and unpaid Senior Services Fees that have not been deferred on prior Quarterly Payment Dates);
(D) to the Lenders for payment (on a pro rata basis) of accrued interest and solely to the Revolving Lenders in respect of their Revolving Loans, Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any the additional two percent of interest payable at the Post-Default Rate);
(E) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if a Market Trigger has occurred and is continuingDate, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied;
(F) to the payment of amounts described in clause (A) above to the extent not paid thereunder (without regard to any cap or limitation);
(G) first, to the payment of any interest payable at amounts described in clause (D) above to the Post-Default Rate;
(H) extent not paid thereunder, and second, to the payment of any Lender’s Increased Costs;
(I) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium;
(JH) to the payment to the Services Provider (or its designee) of any previously deferred Senior Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(KI) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of (1) all due and unpaid Subordinated Services Fees that have not been deferred on prior Quarterly Payment Dates and (2) any previously deferred Subordinated Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(LJ) if the Borrower is party to any Interest Hedge Agreements, to any amounts owing by the Borrower to the Interest Hedge Counterparties under such Interest Hedge Agreements to the extent not paid under clause (B) above (without regard to any cap or limitation);
(MK) all remaining Interest Proceeds:
(1) during the Reinvestment Period, at the sole discretion of the Services Provider, either (i) to the Borrower for payment as directed by the Borrower, including as to make a distribution to the Parent; (ii) to the Collection Account to be applied as Principal Proceeds for the purchase of additional Collateral Loans, (iii) to be applied to prepay the principal of the Loans pursuant to Section 2.7, and/or (iv) for deposit into the Future Funding Reserve Account; and
(2) after the Reinvestment Period, to the Borrower or for payment as directed by the Borrower, either to (i) make a distribution to the Parent; or (ii) prepay the principal of the Loans pursuant to Section 2.7.
(ii) On each Quarterly Payment Date, following the distribution of all Interest Proceeds as set forth in Section 9.1(a)(i) above, Principal Proceeds (other than Principal Proceeds previously reinvested in Collateral Loans or otherwise designated by the Borrower for application pursuant to the parenthetical contained in Section 8.2(a)(ii) or otherwise to provide for any Unsettled Amount) shall be applied as follows; provided that after giving effect to any such payment no Commitment Shortfall would exist (and, to the extent that any Commitment Shortfall would exist, Principal Proceeds shall first be deposited in the Future Funding Reserve Account in the amount needed to eliminate such Commitment Shortfall):
(A) to the payment of unpaid amounts in items (A) through (C) in Section 9.1(a)(i) above (in such order of priority stated therein);
(B) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any interest payable at the Post-Default Rate);
(C) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if an Event of Default or a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied or, with respect to an Event of Default, the Loans are paid in full;
(D) to the payment of any interest payable at the Post-Default Rate;
(E) during the Reinvestment Period, all remaining Principal Proceeds may, at the sole discretion of the Services Provider:
(1) be deposited into the Collection Account for the purchase of additional Collateral Loans;
(2) be applied to prepay the principal of the Loans pursuant to Section 2.7; and/or
(3) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium; provided that, the Lender Advance Rate Test shall be satisfied immediately after giving effect to such payment;
(4) be deposited into the Future Funding Reserve Account; and
(5) so long as no Default or Event of Default has occurred and is continuing or would result, be used to make a Permitted Parent Distribution.
(F) after the Reinvestment Period,
(1) first, to be applied to the payment of interest, principal, Commitment Fees and other obligations on the Loans until repaid in full;
(2) second, to the payment of amounts referred to in items (E) through (J) in Section 9.1(a)(i) above, in the priority set forth therein but only to the extent not paid in full thereunder; and
(3) third, to the Borrower or for payment as directed by the Borrower, including to make a distribution to the Parent.
(b) If on any Quarterly Payment Date the amount available in the Payment Account from amounts received in the related Due Period is insufficient to make the full amount of the disbursements required pursuant to any clause in the Priority of Payments, the Collateral Agent shall make the disbursements called for in the order and according to the priority set forth under Section 9.1(a) and ratably or in the order provided within the applicable clause, as applicable, in accordance with the respective amounts owing under any such clause, to the extent funds are available therefor.
(c) On each Quarterly Payment Date, the Collateral Administrator (on behalf of the Borrower) shall deliver to the Administrative Agent, the Collateral Agent, the Services Provider and S&P (so long as S&P is rating the Loans) a report (the “Payment Date Report”) containing the information described in Exhibit E hereto pursuant to Section 8.9 specifying the amount of Interest Proceeds (and, of such amount, the amount of Fee Proceeds) and Principal Xxxxxxxx received during the preceding Due Period and the amounts to be applied to each purpose set forth in Section 9.1(a). The information in each Payment Date Report shall be determined as of the Calculation Date immediately preceding the applicable Quarterly Payment Date. For the avoidance of doubt, in any month in which a Quarterly Payment Date occurs, the Collateral Report and the Payment Date Report may be combined into a single report.
(d) In the event that the Services Provider obtains actual knowledge of or receives written notice that any Interest Hedge Counterparty defaults in the payment of its obligations to the Borrower under any Interest Hedge Agreement on the payment date therefor, the Services Provider shall notify the Borrower which shall (or the Services Provider on behalf of the Borrower shall) make a demand on such Interest Hedge Counterparty, or any guarantor, if applicable, demanding payment by 12:00 noon, New York time, on the next Business Day. The Services Provider shall give notice to the Lenders, the Administrative Agent, S&P, the Borrower and the Collateral Agent upon the continuing failure by such Interest Hedge Counterparty (or applicable guarantor) to perform its obligations for one Business Day following a demand made by the Borrower (or the Services Provider on behalf of the Borrower) on such Interest Hedge Counterparty.
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Disbursements of Funds from Payment Account. (a) Notwithstanding any other provision of this Agreement other than Section 6.4, but subject to the other subsections of this Section 9.1 and Article II (with respect to optional repayment of Loans), on each Quarterly Payment DateDate (other than a Quarterly Payment Date following the occurrence and during the continuation of an Enforcement Event), the Collateral Agent shall disburse amounts transferred to the Payment Account from the Collection Account pursuant to Section 8.2(h8.2(e) as follows and for application in accordance with the following priorities (the “Priority of Payments”):
(i) On each Quarterly Payment Date, prior to the distribution of any Principal Proceeds, Interest Proceeds shall be applied as follows:
(A) to the payment of the following amounts in the following priority (without duplication): (1) Taxes (but not including any accrued and unpaid Increased Costs), registration and filing fees then due and owing by the Borrower, (2) accrued and unpaid Administrative Expenses in the order set forth in the definition thereof and (3) on any Quarterly Payment Date other than the final Quarterly Payment Date, to the retention in the Collection Account of an amount equal to the Retained Expense Amount for such Quarterly Payment Date; provided that the aggregate amount of payments under this clause (A)(2) and (3) shall not exceed on any Quarterly Payment Date the sum of (a) the Quarterly Cap plus (b) the Retained Expense Amount determined on the immediately prior Quarterly Payment Date less (c) Administrative Expenses paid pursuant to Section 8.2(g8.2(d) during the Due Period relating to such Quarterly Payment Date;
(B) if the Borrower is party to any Interest Hedge Agreements, to the payment of any amounts owing by the Borrower to the Interest Hedge Counterparties thereunder (exclusive of any early termination or liquidation payment owing by the Borrower by reason of the occurrence of an event of default or termination event thereunder with respect to such Interest Hedge Counterparty where such Interest Hedge Counterparty is the sole affected party or the defaulting party);
(C) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of all due and unpaid Senior Services Fees that have not been deferred on prior Quarterly Payment DatesDates in an amount not to exceed the accrued Senior Services Fees for one Due Period);
(D) to the Lenders for payment (on a pro rata basis) of accrued interest and solely to the Revolving Lenders in respect of their Revolving Loans, Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any the additional two percent of interest payable at the Post-Default Rate);
(E) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if a Market Trigger has occurred and is continuingDate, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied;
(F) to the payment of amounts described in clause (A) above to the extent not paid thereunder (without regard to any cap or limitation);
(G) first, to the payment of any the additional two percent of interest payable at the Post-Default Rate;
(H) , and second, to the payment of any Lender’s Increased Costs;
(I) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium;
(JH) to the payment to the Services Provider (or its designee) of any previously deferred Senior Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(KI) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of (1) all due and unpaid Subordinated Services Fees that have not been deferred on prior Quarterly Payment Dates and (2) any previously deferred Subordinated Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(LJ) if the Borrower is party to any Interest Hedge Agreements, to any amounts owing by the Borrower to the Interest Hedge Counterparties under such Interest Hedge Agreements to the extent not paid under clause (B) above (without regard to any cap or limitation);
(MK) all remaining Interest Proceeds, at the sole discretion of the Services Provider to the extent permitted under this Agreement:
(1) during the Reinvestment Period, at the sole discretion of the Services Provider, either (i) to the Borrower for payment as directed by the Borrower, including as to make a distribution to the Parent; (ii) to the Collection Account to be applied as Principal Proceeds for the purchase or origination of additional Collateral Loans, (iii) to be applied to prepay the principal of the Loans pursuant to Section 2.7, and/or (iv) for deposit into the Future Funding Reserve Account; and
(2) after the Reinvestment Period, to the (i) Borrower or for payment as directed by the Borrower, either to (i) make a distribution to the Parent; or (ii) prepay the principal of the Loans pursuant to Section 2.7.
(ii) On each Quarterly Payment Date, following the distribution of all Interest Proceeds as set forth in Section 9.1(a)(i) above, Principal Proceeds (other than Principal Proceeds previously reinvested in Collateral Loans or otherwise designated by the Borrower for application pursuant to the parenthetical contained in Section 8.2(a)(ii) or otherwise to provide for any Unsettled Amount) shall be applied as follows; provided that after giving effect to any such payment no Commitment Shortfall would exist (and, to the extent that any Commitment Shortfall would exist, Principal Proceeds shall first be deposited in the Future Funding Reserve Account in the amount needed to eliminate such Commitment Shortfall):
(A) to the payment of unpaid amounts in items (A) through (CE) in Section 9.1(a)(i) above (in such order of priority stated therein);
(B) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any interest payable at the Post-Default Rate);
(C) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if an Event of Default or a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied or, with respect to an Event of Default, the Loans are paid in full;
(D) to the payment of any interest payable at the Post-Default Rate;
(E) during the Reinvestment Period, all remaining Principal Proceeds mayProceeds, at the sole discretion of the Services Provider:
(1) be deposited into to the Collection Account for the purchase or origination of additional Collateral Loans;
(2) to be applied to prepay the principal of the Loans pursuant to Section 2.7; and/or
(3) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium; provided that, the Lender Advance Rate Test shall be satisfied immediately after giving effect to such payment;
(4) be deposited into the Future Funding Reserve Account; and;
(5) so long as no Default or Event of Default has occurred and is continuing or would result, be used to make a Permitted Parent Distribution.
(FC) after the Reinvestment Period,
(1) first, to be applied to the payment of interest, principal, Commitment Fees and other obligations on the Loans until repaid in full;
(2) second, to the payment of amounts referred to in items (EF) through (J) in Section 9.1(a)(i) above, in the priority set forth therein but only to the extent not paid in full thereunder; and
(3) third, to the Borrower or for payment as directed by the Borrower, including to make a distribution to the Parent.
(b) If on any Quarterly Payment Date the amount available in the Payment Account from amounts received in the related Due Period is insufficient to make the full amount of the disbursements required pursuant to any clause in the Priority of Payments, the Collateral Agent shall make the disbursements called for in the order and according to the priority set forth under Section 9.1(a) and ratably or in the order provided within the applicable a clause, as applicable, in accordance with the respective amounts owing under any such clause, to the extent funds are available therefor.
(c) On each Quarterly Payment Date, the Collateral Administrator (on behalf of the Borrower) shall deliver to the Administrative Agent, the Collateral Agent, the Services Provider and S&P (so long as S&P is rating the Loans) a report (the “Payment Date Report”) containing the information described in Exhibit E hereto pursuant to Section 8.9 specifying the amount of Interest Proceeds (and, of such amount, the amount of Fee Proceeds) and Principal Xxxxxxxx Proceeds received during the preceding Due Period and the amounts to be applied to each purpose set forth in Section 9.1(a). The information in each Payment Date Report shall be determined as of the Calculation Date immediately preceding the applicable Quarterly Payment Date. For the avoidance of doubt, in any month in which a Quarterly Payment Date occurs, the Collateral Report and the Payment Date Report may be combined into a single report.
(d) In the event that the Services Provider obtains actual knowledge of or receives written notice that any Interest Hedge Counterparty defaults in the payment of its obligations to the Borrower under any Interest Hedge Agreement on the payment date therefor, the Services Provider shall notify the Borrower which shall (or the Services Provider on behalf of the Borrower shall) make a demand on such Interest Hedge Counterparty, or any guarantor, if applicable, demanding payment by 12:00 noon, New York time, on the next Business Day. The Services Provider shall give notice to the Lenders, the Administrative Agent, S&P, the Borrower and the Collateral Agent upon the continuing failure by such Interest Hedge Counterparty (or applicable guarantor) to perform its obligations for one Business Day following a demand made by the Borrower (or the Services Provider on behalf of the Borrower) on such Interest Hedge Counterparty.
Appears in 1 contract
Disbursements of Funds from Payment Account. (a) Notwithstanding any other provision of this Agreement other than Section 6.4, but subject to the other subsections of this Section 9.1 and Article II (with respect to optional repayment of Loans), on each Quarterly Payment Date, the Collateral Agent shall disburse amounts transferred to the Payment Account from the Collection Account pursuant to Section 8.2(h) as follows and for application in accordance with the following priorities (the “Priority of Payments”):
(i) On each Quarterly Payment Date, prior to the distribution of any Principal Proceeds, Interest Proceeds shall be applied as follows:
(A) to the payment of the following amounts in the following priority (without duplication): (1) Taxes (but not including any accrued and unpaid Increased Costs), registration and filing fees then due and owing by the Borrower, (2) accrued and unpaid Administrative Expenses in the order set forth in the definition thereof and (3) on any Quarterly Payment Date other than the final Quarterly Payment Date, to the retention in the Collection Account of an amount equal to the Retained Expense Amount for such Quarterly Payment Date; provided that the aggregate amount of payments under this clause (A)(2) and (3) shall not exceed on any Quarterly Payment Date the sum of (a) the Quarterly Cap plus (b) the Retained Expense Amount determined on the immediately prior Quarterly Payment Date less (c) Administrative Expenses paid pursuant to Section 8.2(g) during the Due Period relating to such Quarterly Payment Date;
(B) if the Borrower is party to any Interest Hedge Agreements, to the payment of any amounts owing by the Borrower to the Interest Hedge Counterparties thereunder (exclusive of any early termination or liquidation payment owing by the Borrower by reason of the occurrence of an event of default or termination event thereunder with respect to such Interest Hedge Counterparty where such Interest Hedge Counterparty is the sole affected party or the defaulting party);
(C) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of all due and unpaid Senior Services Fees that have not been deferred on prior Quarterly Payment Dates;
(D) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any the additional two percent of interest payable at the Post-Default Rate);
(E) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied;
(F) to the payment to the Administrative Agent of the Administrative Agent Fee;
(G) to the payment of amounts described in clause (A) above to the extent not paid thereunder (without regard to any cap or limitation);
(GH) first, to the payment of any interest payable at amounts described in clause (D) above to the Post-Default Rate;
(H) extent not paid thereunder, and second, to the payment of any Lender’s Increased Costs;
(I) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium[Reserved];
(J) to the payment to the Services Provider (or its designee) of any previously deferred Senior Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(K) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of (1) all due and unpaid Subordinated Services Fees that have not been deferred on prior Quarterly Payment Dates and (2) any previously deferred Subordinated Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(L) if the Borrower is party to any Interest Hedge Agreements, to any amounts owing by the Borrower to the Interest Hedge Counterparties under such Interest Hedge Agreements to the extent not paid under clause (B) above (without regard to any cap or limitation);
(M) if the Lender Advance Rate Test is satisfied, to the Lenders for payment of any Make-Whole Fees;
(N) all remaining Interest Proceeds:
(1) during the Reinvestment Period, at the sole discretion of the Services Provider, either (i) to the Borrower for payment as directed by the Borrower, including as to make a distribution to the Parent; (ii) to the Collection Account to be applied as Principal Proceeds for the purchase of additional Collateral Loans, (iii) to be applied to prepay the principal of the Loans pursuant to Section 2.7, and/or (iv) for deposit into the Future Funding Reserve Account; and
(2) after the Reinvestment Period, to the Borrower or for payment as directed by the Borrower, either to (i) make a distribution to the Parent; or (ii) prepay the principal of the Loans pursuant to Section 2.7.
(ii) On each Quarterly Payment Date, following the distribution of all Interest Proceeds as set forth in Section 9.1(a)(i) above, Principal Proceeds (other than Principal Proceeds previously reinvested in Collateral Loans or otherwise designated by the Borrower for application pursuant to the parenthetical contained in Section 8.2(a)(ii) or otherwise to provide for any Unsettled Amount) shall be applied as follows; provided that after giving effect to any such payment no Commitment Shortfall would exist (and, to the extent that any Commitment Shortfall would exist, Principal Proceeds shall first be deposited in the Future Funding Reserve Account in the amount needed to eliminate such Commitment Shortfall):
(A) to the payment of unpaid amounts in items (A) through (C) in Section 9.1(a)(i) above (in such order of priority stated therein);
(B) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any interest payable at the Post-Default Rate);
(C) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if an Event of Default or a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied or, with respect to an Event of Default, the Loans are paid in full;
(D) to the payment of any interest payable at the Post-Default Rate;
(E) during the Reinvestment Period, all remaining Principal Proceeds may, at the sole discretion of the Services Provider:
(1) be deposited into the Collection Account for the purchase of additional Collateral Loans;
(2) be applied to prepay the principal of the Loans pursuant to Section 2.7; and/or
(3) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium; provided that, the Lender Advance Rate Test shall be satisfied immediately after giving effect to such payment;
(4) be deposited into the Future Funding Reserve Account; and
(5) so long as no Default or Event of Default has occurred and is continuing or would result, be used to make a Permitted Parent Distribution.
(F) after the Reinvestment Period,
(1) first, to be applied to the payment of interest, principal, Commitment Fees and other obligations on the Loans until repaid in full;
(2) second, to the payment of amounts referred to in items (E) through (J) in Section 9.1(a)(i) above, in the priority set forth therein but only to the extent not paid in full thereunder; and
(3) third, to the Borrower or for payment as directed by the Borrower, including to make a distribution to the Parent.
(b) If on any Quarterly Payment Date the amount available in the Payment Account from amounts received in the related Due Period is insufficient to make the full amount of the disbursements required pursuant to any clause in the Priority of Payments, the Collateral Agent shall make the disbursements called for in the order and according to the priority set forth under Section 9.1(a) and ratably or in the order provided within the applicable clause, as applicable, in accordance with the respective amounts owing under any such clause, to the extent funds are available therefor.
(c) On each Quarterly Payment Date, the Collateral Administrator (on behalf of the Borrower) shall deliver to the Administrative Agent, the Collateral Agent, the Services Provider and S&P (so long as S&P is rating the Loans) a report (the “Payment Date Report”) containing the information described in Exhibit E hereto pursuant to Section 8.9 specifying the amount of Interest Proceeds (and, of such amount, the amount of Fee Proceeds) and Principal Xxxxxxxx received during the preceding Due Period and the amounts to be applied to each purpose set forth in Section 9.1(a). The information in each Payment Date Report shall be determined as of the Calculation Date immediately preceding the applicable Quarterly Payment Date. For the avoidance of doubt, in any month in which a Quarterly Payment Date occurs, the Collateral Report and the Payment Date Report may be combined into a single report.
(d) In the event that the Services Provider obtains actual knowledge of or receives written notice that any Interest Hedge Counterparty defaults in the payment of its obligations to the Borrower under any Interest Hedge Agreement on the payment date therefor, the Services Provider shall notify the Borrower which shall (or the Services Provider on behalf of the Borrower shall) make a demand on such Interest Hedge Counterparty, or any guarantor, if applicable, demanding payment by 12:00 noon, New York time, on the next Business Day. The Services Provider shall give notice to the Lenders, the Administrative Agent, S&P, the Borrower and the Collateral Agent upon the continuing failure by such Interest Hedge Counterparty (or applicable guarantor) to perform its obligations for one Business Day following a demand made by the Borrower (or the Services Provider on behalf of the Borrower) on such Interest Hedge Counterparty.
Appears in 1 contract
Samples: Credit Agreement (Blue Owl Technology Finance Corp. II)
Disbursements of Funds from Payment Account. (a) Notwithstanding any other provision of this Agreement other than Section 6.4, but subject to the other subsections of this Section 9.1 and Article II (with respect to optional repayment of Loans), on each Quarterly Payment Date, the Collateral Agent shall disburse amounts transferred to the Payment Account from the Collection Account pursuant to Section 8.2(h) as follows and for application in accordance with the following priorities (the “Priority of Payments”):
(i) On each Quarterly Payment Date, prior to the distribution of any Principal Proceeds, Interest Proceeds shall be applied as follows:
(A) to the payment of the following amounts in the following priority (without duplication): (1) Taxes (but not including any accrued and unpaid Increased Costs), registration and filing fees then due and owing by the Borrower, (2) accrued and unpaid Administrative Expenses in the order set forth in the definition thereof and (3) on any Quarterly Payment Date other than the final Quarterly Payment Date, to the retention in the Collection Account of an amount equal to the Retained Expense Amount for such Quarterly Payment Date; provided that the aggregate amount of payments under this clause (A)(2) and (3) shall not exceed on any Quarterly Payment Date the sum of (a) the Quarterly Cap plus (b) the Retained Expense Amount determined on the immediately prior Quarterly Payment Date less (c) Administrative Expenses paid pursuant to Section 8.2(g) during the Due Period relating to such Quarterly Payment Date;
(B) if the Borrower is party to any Interest Hedge Agreements, to the payment of any amounts owing by the Borrower to the Interest Hedge Counterparties thereunder (exclusive of any early termination or liquidation payment owing by the Borrower by reason of the occurrence of an event of default or termination event thereunder with respect to such Interest Hedge Counterparty where such Interest Hedge Counterparty is the sole affected party or the defaulting party);
(C) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of all due and unpaid Senior Services Fees that have not been deferred on prior Quarterly Payment Dates;
(D) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any the additional two percent of interest payable at the Post-Default Rate);
(E) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied;
(F) to the payment to the Administrative Agent of the Administrative Agent Fee;
(G) to the payment of amounts described in clause (A) above to the extent not paid thereunder (without regard to any cap or limitation);
(GH) first, to the payment of any interest payable at amounts described in clause (D) above to the Post-Default Rate;
(H) extent not paid thereunder, and second, to the payment of any Lender’s Increased Costs;
(I) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium[Reserved];
(J) to the payment to the Services Provider (or its designee) of any previously deferred Senior Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(K) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of (1) all due and unpaid Subordinated Services Fees that have not been deferred on prior Quarterly Payment Dates and (2) any previously deferred Subordinated Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(L) if the Borrower is party to any Interest Hedge Agreements, to any amounts owing by the Borrower to the Interest Hedge Counterparties under such Interest Hedge Agreements to the extent not paid under clause (B) above (without regard to any cap or limitation);
(M) all remaining Interest Proceeds:
(1) during the Reinvestment Period, at the sole discretion of the Services Provider, either (i) to the Borrower for payment as directed by the Borrower, including as to make a distribution to the Parent; (ii) to the Collection Account to be applied as Principal Proceeds for the purchase of additional Collateral Loans, (iii) to be applied to prepay the principal of the Loans pursuant to Section 2.7, and/or (iv) for deposit into the Future Funding Reserve Account; and
(2) after the Reinvestment Period, to the Borrower or for payment as directed by the Borrower, either to (i) make a distribution to the Parent; or (ii) prepay the principal of the Loans pursuant to Section 2.7.
(ii) On each Quarterly Payment Date, following the distribution of all Interest Proceeds as set forth in Section 9.1(a)(i) above, Principal Proceeds (other than Principal Proceeds previously reinvested in Collateral Loans or otherwise designated by the Borrower for application pursuant to the parenthetical contained in Section 8.2(a)(ii) or otherwise to provide for any Unsettled Amount) shall be applied as follows; provided that after giving effect to any such payment no Commitment Shortfall would exist (and, to the extent that any Commitment Shortfall would exist, Principal Proceeds shall first be deposited in the Future Funding Reserve Account in the amount needed to eliminate such Commitment Shortfall):
(A) to the payment of unpaid amounts in items (A) through (C) in Section 9.1(a)(i) above (in such order of priority stated therein);
(B) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any the additional two percent of interest payable at the Post-Default Rate);
(C) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if an Event of Default or a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied or, with respect to an Event of Default, the Loans are paid in full;
(D) first, to the payment of amounts described in clause (B) above to the extent not paid thereunder, and second, to the payment of any interest payable at the Post-Default RateLender’s Increased Costs;
(E) during the Reinvestment Period, all remaining Principal Proceeds may, at the sole discretion of the Services Provider:
(1) be deposited into the Collection Account for the purchase of additional Collateral Loans;
(2) be applied to prepay the principal of the Loans pursuant to Section 2.7; and/or
(3) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium; provided that, the Lender Advance Rate Test shall be satisfied immediately after giving effect to such payment;
(4) be deposited into the Future Funding Reserve Account; and
(54) so long as no Default or Event of Default has occurred and is continuing or would result, be used to make a Permitted Parent Distribution.
(F) after the Reinvestment Period,
(1) first, to be applied to the payment of interest, principal, Commitment Fees and other obligations on the Loans until repaid in full;
(2) second, to the payment of amounts referred to in items (E) through (J) in Section 9.1(a)(i) above, in the priority set forth therein but only to the extent not paid in full thereunder; and
(3) third, to the Borrower or for payment as directed by the Borrower, including to make a distribution to the Parent.
(b) If on any Quarterly Payment Date the amount available in the Payment Account from amounts received in the related Due Period is insufficient to make the full amount of the disbursements required pursuant to any clause in the Priority of Payments, the Collateral Agent shall make the disbursements called for in the order and according to the priority set forth under Section 9.1(a) and ratably or in the order provided within the applicable clause, as applicable, in accordance with the respective amounts owing under any such clause, to the extent funds are available therefor.
(c) On each Quarterly Payment Date, the Collateral Administrator (on behalf of the Borrower) shall deliver to the Administrative Agent, the Collateral Agent, the Services Provider Provider, the Lenders and S&P (so long as S&P is rating the Loans) applicable Rating Agency a report (the “Payment Date Report”) containing the information described in Exhibit E hereto pursuant to Section 8.9 specifying the amount of Interest Proceeds (and, of such amount, the amount of Fee Proceeds) and Principal Xxxxxxxx Proceeds received during the preceding Due Period and the amounts to be applied to each purpose set forth in Section 9.1(a). The information in each Payment Date Report shall be determined as of the Calculation Date immediately preceding the applicable Quarterly Payment Date. For the avoidance of doubt, in any month in which a Quarterly Payment Date occurs, the Collateral Report and the Payment Date Report may be combined into a single report.
(d) In the event that the Services Provider obtains actual knowledge of or receives written notice that any Interest Hedge Counterparty defaults in the payment of its obligations to the Borrower under any Interest Hedge Agreement on the payment date therefor, the Services Provider shall notify the Borrower which shall (or the Services Provider on behalf of the Borrower shall) make a demand on such Interest Hedge Counterparty, or any guarantor, if applicable, demanding payment by 12:00 noon, New York time, on the next Business Day. The Services Provider shall give notice to the Lenders, the Administrative Agent, S&Pthe applicable Rating Agency, the Borrower and the Collateral Agent upon the continuing failure by such Interest Hedge Counterparty (or applicable guarantor) to perform its obligations for one Business Day following a demand made by the Borrower (or the Services Provider on behalf of the Borrower) on such Interest Hedge Counterparty.
Appears in 1 contract
Samples: Credit Agreement (Owl Rock Technology Finance Corp. II)
Disbursements of Funds from Payment Account. (a) Notwithstanding any other provision of this Agreement other than Section 6.4, but subject to the other subsections of this Section 9.1 and Article II (with respect to optional repayment of Loans), on each Quarterly Payment Date, the Collateral Agent shall disburse amounts transferred to the Payment Account from the Collection Account pursuant to Section 8.2(h8.2(e) as follows and for application in accordance with the following priorities (the “"Priority of Payments”"):
(i) On each Quarterly Payment Date, prior to the distribution of any Principal Proceeds, Interest Proceeds shall be applied as follows:
(A) to the payment of the following amounts in the following priority (without duplication): (1) Taxes (but not including any accrued and unpaid Increased Costs)taxes, registration and filing fees then due and owing by the Borrower, ;
(2B) to the payment of the following amounts in the following priority (without duplication):
(1) accrued and unpaid Administrative Expenses in the order set forth in the definition thereof and thereof; and
(32) on any Quarterly Payment Date other than the final Quarterly Payment Date, to the retention in the Collection Account of an amount equal to the Retained Expense Amount for such Quarterly Payment Date; provided that the aggregate amount of payments under this clause (A)(2) and (3B) shall not exceed on any Quarterly Payment Date the sum of (a) the Quarterly Cap plus (b) the Retained Expense Amount determined on the immediately prior Quarterly Payment Date less (c) Administrative Expenses paid pursuant to Section 8.2(g8.2(d) during the Due Period relating to such Quarterly Payment Date;
(BC) if the Borrower is party to any Interest Hedge Agreements, to the payment of any amounts owing by the Borrower to the Interest Hedge Counterparties thereunder (exclusive of any early termination or liquidation payment owing by the Borrower by reason of the occurrence of an event of default or termination event thereunder with respect to such Interest Hedge Counterparty where such Interest Hedge Counterparty is the sole affected party or the defaulting party);
(CD) unless deferred waived by the Services Provider Collateral Manager (or its designee), which waiver shall be permanent and irrevocable, to the payment to the Services Provider Collateral Manager (or its designee) of all due and unpaid Senior Services Fees that have not been deferred on prior Quarterly Payment DatesManagement Fees;
(DE) in the following order of priority:
(1) to the Swingline Lender for payment of accrued interest on the Swingline Loans (excluding Incremental Interest); then
(2) to the Class A Lenders for payment (on a pro rata basis) of accrued interest on the Class A Loans and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any interest payable at the Post-Default RateIncremental Interest);
(EF) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if a Market Trigger has occurred and is continuingDate, first to the prepayment repayment of the principal of the Swingline Loans until the Swingline Loans are repaid in full and then to the repayment of the principal of the Class A Loans and to the Future Funding Reserve Account (to be allocated to the Class A Loans and the Future Funding Reserve Account according to the Principal Allocation Formula) ), in each case until all of the Coverage Tests are satisfied (on a pro forma basis as of such tests are satisfiedCalculation Date);
(FG) to the payment of accrued Incremental Interest;
(H) to the applicable Lenders on a pro rata basis for payment of accrued and unpaid Increased Costs;
(I) to the payment of amounts described in clause (AB) above to the extent not paid thereunder (without regard to any cap or limitation);
(G) to the payment of any interest payable at the Post-Default Rate;
(H) to the payment of any Lender’s Increased Costs;
(I) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium;
(J) to the payment to the Services Provider (or its designee) of any previously deferred Senior Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date unless waived by notice to the Collateral Agent prior to the related Calculation Date;
(K) unless deferred by the Services Provider Manager (or its designee), which waiver shall be permanent and irrevocable, to the payment to the Services Provider Collateral Manager (or its designee) of (1) all due and unpaid with respect to Subordinated Services Management Fees that have not been deferred on prior Quarterly Payment Dates Dates, all due and unpaid Subordinated Management Fees and (2) any previously deferred with respect to Subordinated Services Management Fees that have been deferred on prior Quarterly Payment Dates, the Services Provider accrued and unpaid Subordinated Management Fees which have been deferred on the prior three Quarterly Payment Dates which the Collateral Manager (or its designee) elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(LK) if the Borrower is party to any Interest Hedge Agreements, to any amounts owing by the Borrower to the Interest Hedge Counterparties under such Interest Hedge Agreements to the extent not paid under clause (BC) above above;
(without regard L) if a Rating Confirmation Failure has occurred, all remaining Interest Proceeds are to any cap or limitation);be applied as Principal Proceeds under Section 9.1(a)(ii) until a Rating Confirmation is obtained; and
(M) all remaining Interest Proceeds:
(1) during the Reinvestment Period, at the sole discretion of the Services ProviderBorrower, either (i) to the Borrower for payment as directed by the Borrower, including as to make a distribution to the Parent; (ii) to the Collection Account to be applied as Principal Proceeds for the purchase of additional Collateral Loans, (iiiii) to be applied on such Quarterly Payment Date to prepay the principal of the Revolving Loans pursuant to Section 2.7, 2.7 and/or (iviii) for deposit into to the Future Funding Reserve AccountBorrower as an equity distribution; and
(2) after the Reinvestment PeriodPeriod (in the following order of priority), (i) upon the occurrence and during the continuance of a Trigger Event, to be applied as Principal Proceeds under Section 9.1(a)(ii) on such Quarterly Payment Date, (ii) if the Overcollateralization Ratio is less than 200%, to be applied as Principal Proceeds under Section 9.1(a)(ii) on such Quarterly Payment Date and (iii) to the Borrower or for payment as directed by the Borrower, either to (i) make a distribution to the Parent; or (ii) prepay the principal of the Loans pursuant to Section 2.7an equity distribution.
(ii) On each Quarterly Payment Date, following the distribution of all Interest Proceeds as set forth in Section 9.1(a)(i) above, Principal Proceeds (other than Principal Proceeds previously reinvested in Collateral Loans or otherwise designated by the Borrower for application pursuant to the parenthetical contained in Section 8.2(a)(ii) or otherwise to provide for any Unsettled Amount)) shall be applied as follows; , provided that after giving effect to any such payment no Commitment Shortfall would exist (and, to the extent that any Commitment Shortfall would exist, Principal Proceeds shall first be deposited in the Future Funding Reserve Account in the amount needed to eliminate such Commitment Shortfall):
(A) to the payment of unpaid the amounts referred to in items clauses (A) through (CE) in Section 9.1(a)(iof subsection (i) above (in such order of the priority stated therein), but only to the extent not paid in full thereunder;
(B) to if, as of the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any interest payable at the Post-Default Rate);
(C) if related Calculation Date, any of the Coverage Tests are not satisfied as or if a Rating Confirmation Failure has occurred, first to the repayment of the related Calculation Date or if an Event of Default or a Market Trigger has occurred and is continuing, to the prepayment of principal of the Swingline Loans until the Swingline Loans are repaid in full and then to the repayment of the principal of the Class A Loans and to the Future Funding Reserve Account (to be allocated to the Class A Loans and the Future Funding Reserve Account according to the Principal Allocation Formula) ), in each case until such tests all of the Coverage Tests are satisfied or(on a pro forma basis as of such Calculation Date) or until a Rating Confirmation is obtained, with respect to an Event of Default, the Loans are paid in fullas applicable;
(D) to the payment of any interest payable at the Post-Default Rate;
(EC) during the Reinvestment PeriodPeriod (provided that no Event of Default has occurred and is then continuing and no Loans have been accelerated), all remaining Principal Proceeds mayProceeds, at the sole discretion of the Services ProviderBorrower or the Collateral Manager, either:
(1) be deposited into to the Collection Account for the purchase of additional Collateral Loans;; or
(2) to be applied on such Quarterly Payment Date to prepay the principal of the Revolving Loans pursuant to Section 2.7; and/or
(3) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium; provided that, the Lender Advance Rate Test shall be satisfied immediately after giving effect to such payment;
(4) be deposited into the Future Funding Reserve Account; and
(5) so long as no Default or Event of Default has occurred and is continuing or would result, be used to make a Permitted Parent Distribution.
(FD) after the Reinvestment Period,
(1) first, to be applied applied, first, to the payment of interest, principal, Commitment Fees and other obligations principal on the Swingline Loans until repaid in full, and then to the payment of principal on the Class A Loans (to be allocated to the Class A Loans according to the Principal Allocation Formula) until repaid in full;
(2E) secondafter the Reinvestment Period, to the payment of amounts referred to in items clauses (E) through G), (H), (I), (J) in Section 9.1(a)(iand (K) of subsection (i) above, in the priority set forth therein but only to the extent not paid in full thereunder; and
(3F) thirdafter the Reinvestment Period, to the Borrower or for payment as directed by the Borrower, including to make a distribution to the Parentan equity distribution.
(b) If on any Quarterly Payment Date the amount available in the Payment Account from amounts received in the related Due Period is insufficient to make the full amount of the disbursements required pursuant to any clause in the Priority of Payments, the Collateral Agent shall make the disbursements called for in the order and according to the priority set forth under Section 9.1(a) and ratably or in the order provided within the applicable a clause, as applicable, in accordance with the respective amounts owing under any such clause, clause to the extent funds are available therefor.
(c) On each Quarterly Payment Date, the Collateral Administrator (on behalf of the Borrower) shall deliver to the Administrative Agent, the Collateral Agent, the Services Provider and S&P (so long as S&P is rating the Loans) a report (the “Payment Date Report”) containing the information described in Exhibit E hereto pursuant to Section 8.9 specifying the amount of Interest Proceeds (and, of such amount, the amount of Fee Proceeds) and Principal Xxxxxxxx received during the preceding Due Period and the amounts to be applied to each purpose set forth in Section 9.1(a). The information in each Payment Date Report shall be determined as of the Calculation Date immediately preceding the applicable Quarterly Payment Date. For the avoidance of doubt, in any month in which a Quarterly Payment Date occurs, the Collateral Report and the Payment Date Report may be combined into a single report.
(d) In the event that the Services Provider obtains actual knowledge of or receives written notice that any Interest Hedge Counterparty defaults in the payment of its obligations to the Borrower under any Interest Hedge Agreement on the payment date therefor, the Services Provider shall notify the Borrower which shall (or the Services Provider on behalf of the Borrower shall) make a demand on such Interest Hedge Counterparty, or any guarantor, if applicable, demanding payment by 12:00 noon, New York time, on the next Business Day. The Services Provider shall give notice to the Lenders, the Administrative Agent, S&P, the Borrower and the Collateral Agent upon the continuing failure by such Interest Hedge Counterparty (or applicable guarantor) to perform its obligations for one Business Day following a demand made by the Borrower (or the Services Provider on behalf of the Borrower) on such Interest Hedge Counterparty.
Appears in 1 contract
Disbursements of Funds from Payment Account. (a) Notwithstanding any other provision of this Agreement other than Section 6.4, but subject to the other subsections of this Section 9.1 and Article II (with respect to optional repayment of Loans), on each Quarterly Payment Date, the Collateral Agent shall disburse amounts transferred to the Payment Account from the Collection Account pursuant to Section 8.2(h8.2(e) as follows and for application in accordance with the following priorities (the “Priority of Payments”):
(i) On each Quarterly Payment Date, prior to the distribution of any Principal Proceeds, Interest Proceeds shall be applied as follows:
(A) to the payment of the following amounts in the following priority (without duplication): (1) Taxes (but not including any accrued and unpaid Increased Costs), registration and filing fees then due and owing by the Borrower, (2) accrued and unpaid Administrative Expenses in the order set forth in the definition thereof and (3) on any Quarterly Payment Date other than the final Quarterly Payment Date, to the retention in the Collection Account of an amount equal to the Retained Expense Amount for such Quarterly Payment Date; provided that the aggregate amount of payments under this clause (A)(2) and (3) shall not exceed on any Quarterly Payment Date the sum of (a) the Quarterly Cap plus (b) the Retained Expense Amount determined on the immediately prior Quarterly Payment Date less (c) Administrative Expenses paid pursuant to Section 8.2(g8.2(d) during the Due Period relating to such Quarterly Payment Date;
(B) if the Borrower is party to any Interest Hedge Agreements, to the payment of any amounts owing by the Borrower to the Interest Hedge Counterparties thereunder (exclusive of any early termination or liquidation payment owing by the Borrower by reason of the occurrence of an event of default or termination event thereunder with respect to such Interest Hedge Counterparty where such Interest Hedge Counterparty is the sole affected party or the defaulting party);
(C) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of all due and unpaid Senior Services Fees that have not been deferred on prior Quarterly Payment DatesDates in an amount not to exceed the accrued Senior Services Fees for one Due Period);
(D) to the Lenders for payment (on a pro rata basis) of accrued interest and solely to the Revolving Lenders in respect of their Revolving Loans, Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any the additional two percent of interest payable at the Post-Default Rate);
(E) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if a Market Trigger has occurred and is continuingDate, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied;
(F) to the payment of amounts described in clause (A) above to the extent not paid thereunder (without regard to any cap or limitation);
(G) first, to the payment of any the additional two percent of interest payable at the Post-Default Rate;
(H) , and second, to the payment of any Lender’s Increased Costs;
(I) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium;
(JH) to the payment to the Services Provider (or its designee) of any previously deferred Senior Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(KI) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of (1) all due and unpaid Subordinated Services Fees that have not been deferred on prior Quarterly Payment Dates and (2) any previously deferred Subordinated Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(LJ) if the Borrower is party to any Interest Hedge Agreements, to any amounts owing by the Borrower to the Interest Hedge Counterparties under such Interest Hedge Agreements to the extent not paid under clause (B) above (without regard to any cap or limitation);
(MK) all remaining Interest Proceeds:
(1) during the Reinvestment Period, at the sole discretion of the Services Provider, either (i) to the Borrower for payment as directed by the Borrower, including as to make a distribution to the Parent; (ii) to the Collection Account to be applied as Principal Proceeds for the purchase or origination of additional Collateral Loans, (iii) to be applied to prepay the principal of the Loans pursuant to Section 2.7, and/or (iv) for deposit into the Future Funding Reserve Account; and
(2) after the Reinvestment Period, to the Borrower or for payment as directed by the Borrower, either to (i) make a distribution to the Parent; or (ii) prepay the principal of the Loans pursuant to Section 2.7.
(ii) On each Quarterly Payment Date, following the distribution of all Interest Proceeds as set forth in Section 9.1(a)(i) above, Principal Proceeds (other than Principal Proceeds previously reinvested in Collateral Loans or otherwise designated by the Borrower for application pursuant to the parenthetical contained in Section 8.2(a)(ii) or otherwise to provide for any Unsettled Amount) Amount shall be applied as follows; provided that after giving effect to any such payment no Commitment Shortfall would exist (and, to the extent that any Commitment Shortfall would exist, Principal Proceeds shall first be deposited in the Future Funding Reserve Account in the amount needed to eliminate such Commitment Shortfall):
(A) to the payment of unpaid amounts in items (A) through (CE) in Section 9.1(a)(i) above (in such order of priority stated therein);
(B) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any interest payable at the Post-Default Rate);
(C) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if an Event of Default or a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied or, with respect to an Event of Default, the Loans are paid in full;
(D) to the payment of any interest payable at the Post-Default Rate;
(E) during the Reinvestment Period, all remaining Principal Proceeds mayProceeds, at the sole discretion of the Services Provider:
(1) be deposited into to the Collection Account for the purchase or origination of additional Collateral Loans;
(2) to be applied to prepay the principal of the Loans pursuant to Section 2.7; and/or
(3) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium; provided that, the Lender Advance Rate Test shall be satisfied immediately after giving effect to such payment;
(4) be deposited into the Future Funding Reserve Account; and;
(5) so long as no Default or Event of Default has occurred and is continuing or would result, be used to make a Permitted Parent Distribution.
(FC) after the Reinvestment Period,
(1) first, to be applied to the payment of interest, principal, Commitment Fees and other obligations on the Loans until repaid in full;
(2) second, to the payment of amounts referred to in items (EF) through (J) in Section 9.1(a)(i) above, in the priority set forth therein but only to the extent not paid in full thereunder; and
(3) third, to the Borrower or for payment as directed by the Borrower, including to make a distribution to the Parent.
(b) If on any Quarterly Payment Date the amount available in the Payment Account from amounts received in the related Due Period is insufficient to make the full amount of the disbursements required pursuant to any clause in the Priority of Payments, the Collateral Agent shall make the disbursements called for in the order and according to the priority set forth under Section 9.1(a) and ratably or in the order provided within the applicable a clause, as applicable, in accordance with the respective amounts owing under any such clause, to the extent funds are available therefor.
(c) On each Quarterly Payment Date, the Collateral Administrator (on behalf of the Borrower) shall deliver to the Administrative Agent, the Collateral Agent, the Services Provider and S&P (so long as S&P is rating the Loans) a report (the “Payment Date Report”) containing the information described in Exhibit E hereto pursuant to Section 8.9 specifying the amount of Interest Proceeds (and, of such amount, the amount of Fee Proceeds) and Principal Xxxxxxxx Proceeds received during the preceding Due Period and the amounts to be applied to each purpose set forth in Section 9.1(a). The information in each Payment Date Report shall be determined as of the Calculation Date immediately preceding the applicable Quarterly Payment Date. For the avoidance of doubt, in any month in which a Quarterly Payment Date occurs, the Collateral Report and the Payment Date Report may be combined into a single report.
(d) In the event that the Services Provider obtains actual knowledge of or receives written notice that any Interest Hedge Counterparty defaults in the payment of its obligations to the Borrower under any Interest Hedge Agreement on the payment date therefor, the Services Provider shall notify the Borrower which shall (or the Services Provider on behalf of the Borrower shall) make a demand on such Interest Hedge Counterparty, or any guarantor, if applicable, demanding payment by 12:00 noon, New York time, on the next Business Day. The Services Provider shall give notice to the Lenders, the Administrative Agent, S&P, the Borrower and the Collateral Agent upon the continuing failure by such Interest Hedge Counterparty (or applicable guarantor) to perform its obligations for one Business Day following a demand made by the Borrower (or the Services Provider on behalf of the Borrower) on such Interest Hedge Counterparty.
Appears in 1 contract
Disbursements of Funds from Payment Account. (a) Notwithstanding any other provision of this Agreement other than Section 6.4, but subject to the other subsections of this Section 9.1 and Article II (with respect to optional repayment of Loans), on each Quarterly Payment Date, the Collateral Agent shall disburse amounts transferred to the Payment Account from the Collection Account pursuant to Section 8.2(h8.2(e) as follows and for application in accordance with the following priorities (the “Priority of Payments”):
(i) On each Quarterly Payment Date, prior to the distribution of any Principal Proceeds, Interest Proceeds shall be applied as follows:
(A) to the payment of the following amounts in the following priority (without duplication): (1) Taxes (but not including any accrued and unpaid Increased Costs), registration and filing fees then due and owing by the Borrower, (2) accrued and unpaid Administrative Expenses in the order set forth in the definition thereof and (3) on any Quarterly Payment Date other than the final Quarterly Payment Date, to the retention in the Collection Account of an amount equal to the Retained Expense Amount for such Quarterly Payment Date; provided that the aggregate amount of payments under this clause (A)(2) and (3) shall not exceed on any Quarterly Payment Date the sum of (a) the Quarterly Cap plus (b) the Retained Expense Amount determined on the immediately prior Quarterly Payment Date less (c) Administrative Expenses paid pursuant to Section 8.2(g8.2(d) during the Due Period relating to such Quarterly Payment Date;
(B) if the Borrower is party to any Interest Hedge Agreements, to the payment of any amounts owing by the Borrower to the Interest Hedge Counterparties thereunder (exclusive of any early termination or liquidation payment owing by the Borrower by reason of the occurrence of an event of default or termination event thereunder with respect to such Interest Hedge Counterparty where such Interest Hedge Counterparty is the sole affected party or the defaulting party);
(C) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of all due and unpaid Senior Services Fees that have not been deferred on prior Quarterly Payment DatesDates in an amount not to exceed the accrued Senior Services Fees for one Due Period);
(D) to the Lenders for payment (on a pro rata basis) of accrued interest and solely to the Revolving Lenders in respect of their Revolving Loans, Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any the additional two percent of interest payable at the Post-Default Rate);
(E) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if a Market Trigger has occurred and is continuingDate, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied;
(F) to the payment of amounts described in clause (A) above to the extent not paid thereunder (without regard to any cap or limitation);
(G) first, to the payment of any the additional two percent of interest payable at the Post-Default Rate;
(H) , and second, to the payment of any Lender’s Increased Costs;
(I) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium;
(JH) to the payment to the Services Provider (or its designee) of any previously deferred Senior Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(KI) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of (1) all due and unpaid Subordinated Services Fees that have not been deferred on prior Quarterly Payment Dates and (2) any previously deferred Subordinated Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(LJ) if the Borrower is party to any Interest Hedge Agreements, to any amounts owing by the Borrower to the Interest Hedge Counterparties under such Interest Hedge Agreements to the extent not paid under clause (B) above (without regard to any cap or limitation);
(MK) all remaining Interest Proceeds:
(1) during the Reinvestment Period, at the sole discretion of the Services Provider, either (i) to the Borrower for payment as directed by the Borrower, including as to make a distribution to the Parent; (ii) to the Collection Account to be applied as Principal Proceeds for the purchase of additional Collateral Loans, (iii) to be applied to prepay the principal of the Loans pursuant to Section 2.7, and/or (iv) for deposit into the Future Funding Reserve Account; and
(2) after the Reinvestment Period, to the Borrower or for payment as directed by the Borrower, either to (i) make a distribution to the Parent; or (ii) prepay the principal of the Loans pursuant to Section 2.7.
(ii) On each Quarterly Payment Date, following the distribution of all Interest Proceeds as set forth in Section 9.1(a)(i) above, Principal Proceeds (other than Principal Proceeds previously reinvested in Collateral Loans or otherwise designated by the Borrower for application pursuant to the parenthetical contained in Section 8.2(a)(ii) or otherwise to provide for any Unsettled Amount) shall be applied as follows; provided that after giving effect to any such payment no Commitment Shortfall would exist (and, to the extent that any Commitment Shortfall would exist, Principal Proceeds shall first be deposited in the Future Funding Reserve Account in the amount needed to eliminate such Commitment Shortfall):
(A) to the payment of unpaid amounts in items (A) through (C) in Section 9.1(a)(i) above (in such order of priority stated therein);
(B) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any interest payable at the Post-Default Rate);
(C) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if an Event of Default or a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied or, with respect to an Event of Default, the Loans are paid in full;
(D) to the payment of any interest payable at the Post-Default Rate;
(E) during the Reinvestment Period, all remaining Principal Proceeds may, at the sole discretion of the Services Provider:
(1) be deposited into the Collection Account for the purchase of additional Collateral Loans;
(2) be applied to prepay the principal of the Loans pursuant to Section 2.7; and/or
(3) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium; provided that, the Lender Advance Rate Test shall be satisfied immediately after giving effect to such payment;
(4) be deposited into the Future Funding Reserve Account; and
(5) so long as no Default or Event of Default has occurred and is continuing or would result, be used to make a Permitted Parent Distribution.
(F) after the Reinvestment Period,
(1) first, to be applied to the payment of interest, principal, Commitment Fees and other obligations on the Loans until repaid in full;
(2) second, to the payment of amounts referred to in items (E) through (J) in Section 9.1(a)(i) above, in the priority set forth therein but only to the extent not paid in full thereunder; and
(3) third, to the Borrower or for payment as directed by the Borrower, including to make a distribution to the Parent.
(b) If on any Quarterly Payment Date the amount available in the Payment Account from amounts received in the related Due Period is insufficient to make the full amount of the disbursements required pursuant to any clause in the Priority of Payments, the Collateral Agent shall make the disbursements called for in the order and according to the priority set forth under Section 9.1(a) and ratably or in the order provided within the applicable clause, as applicable, in accordance with the respective amounts owing under any such clause, to the extent funds are available therefor.
(c) On each Quarterly Payment Date, the Collateral Administrator (on behalf of the Borrower) shall deliver to the Administrative Agent, the Collateral Agent, the Services Provider and S&P (so long as S&P is rating the Loans) a report (the “Payment Date Report”) containing the information described in Exhibit E hereto pursuant to Section 8.9 specifying the amount of Interest Proceeds (and, of such amount, the amount of Fee Proceeds) and Principal Xxxxxxxx received during the preceding Due Period and the amounts to be applied to each purpose set forth in Section 9.1(a). The information in each Payment Date Report shall be determined as of the Calculation Date immediately preceding the applicable Quarterly Payment Date. For the avoidance of doubt, in any month in which a Quarterly Payment Date occurs, the Collateral Report and the Payment Date Report may be combined into a single report.
(d) In the event that the Services Provider obtains actual knowledge of or receives written notice that any Interest Hedge Counterparty defaults in the payment of its obligations to the Borrower under any Interest Hedge Agreement on the payment date therefor, the Services Provider shall notify the Borrower which shall (or the Services Provider on behalf of the Borrower shall) make a demand on such Interest Hedge Counterparty, or any guarantor, if applicable, demanding payment by 12:00 noon, New York time, on the next Business Day. The Services Provider shall give notice to the Lenders, the Administrative Agent, S&P, the Borrower and the Collateral Agent upon the continuing failure by such Interest Hedge Counterparty (or applicable guarantor) to perform its obligations for one Business Day following a demand made by the Borrower (or the Services Provider on behalf of the Borrower) on such Interest Hedge Counterparty.
Appears in 1 contract
Disbursements of Funds from Payment Account. (a) Notwithstanding any other provision of this Agreement other than Section 6.4, but subject to the other subsections of this Section 9.1 and Article II (with respect to optional repayment of Loans), on each Quarterly Payment Distribution Date, the Collateral Agent shall disburse amounts transferred to the Payment Account from the Collection Account pursuant to Section 8.2(h8.2(e) in accordance with the related Quarterly Distribution Report as follows and for application in accordance with the following priorities (the “Priority of Payments”):
(i) On each Quarterly Payment Distribution Date, prior to the distribution of any Principal Proceeds, Interest Proceeds shall be applied as follows:
(A) to the payment of the following amounts in the following priority (without duplication): (1) Taxes taxes (but not including any accrued and unpaid Increased Costs), governmental, registered office, registration and filing fees then due and owing by the Borrower, (2) accrued and unpaid Administrative Expenses in the order set forth in the definition thereof and (3) on any Quarterly Payment Distribution Date other than the final Quarterly Payment Distribution Date, to the retention in the Collection Account of an amount equal to the Retained Expense Amount for such Quarterly Payment Distribution Date; provided that the aggregate amount of payments under this clause (A)(2) and (3) shall not exceed on any Quarterly Payment Distribution Date the sum of (a) the Quarterly Cap plus (b) the Retained Expense Amount determined on the immediately prior Quarterly Payment Distribution Date less (c) Administrative Expenses paid pursuant to Section 8.2(g8.2(d) during the Due Period relating to such Quarterly Payment Distribution Date;
(B) if unless waived or deferred by the Borrower is party to any Interest Hedge AgreementsCollateral Manager, which waiver (but not deferral) shall be permanent and irrevocable, to the payment of any amounts owing by the Borrower to the Interest Hedge Counterparties thereunder Collateral Manager of all due and unpaid Collateral Management Fees that have not been waived or deferred on prior Payment Dates (exclusive provided that, for the avoidance of any early termination doubt, no waived or liquidation payment owing by the Borrower by reason of the occurrence of an event of default or termination event thereunder with respect deferred Collateral Management Fees shall be payable pursuant to such Interest Hedge Counterparty where such Interest Hedge Counterparty is the sole affected party or the defaulting partythis clause (B));
(C) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of all due and unpaid Senior Services Fees that have not been deferred on prior Quarterly Payment Dates;
(D) to the Lenders for payment (on a pro rata basis) of accrued interest interest, Make-Whole Fees, Minimum Utilization Fees and Commitment Unused Fees (ratably in proportion to their respective Percentage Shares) due on the Loans due on such Quarterly Payment Date Distribution Date, in each case on a pro rata basis (excluding excluding, in the case of interest, any additional two percent of interest payable at the Post-Default Interest Rate);
(ED) if any of the Coverage Tests are not satisfied an Overcollateralization Ratio Test Failure shall have occurred and is continuing as of the related Calculation Date or if a Market Trigger has occurred and is continuingDate, (1) to the prepayment of principal of the Loans (to be allocated to on a pro rata basis) or (2) if such prepayment of principal of the Loans according would result in a Commitment Shortfall, to deposit in the Principal Allocation Formula) until Unfunded Reserve Account, in each case in an amount necessary for the Overcollateralization Ratio Test to be satisfied (on a pro forma basis as of such tests are satisfiedCalculation Date);
(FE) to the payment of amounts described in clause (A) above to the extent not paid thereunder (without regard to any cap or limitation);
(F) to the payment to the Lenders hereunder (on a pro rata basis) of all interest payable at the Default Interest Rate;
(G) to the payment to the Lenders of any interest payable at the Post-Default RateIncreased Costs;
(H) to the payment of any Lender’s Increased Costs;
(I) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium;
(J) to the payment to the Services Provider (or its designee) Collateral Manager of any previously deferred Senior Services (but not waived) Collateral Management Fees that the Services Provider Collateral Manager elects to be paid on such Quarterly Payment Distribution Date by notice to the Collateral Agent prior to the related Calculation DateDate (provided that, for the avoidance of doubt, no waived Collateral Management Fees shall be payable pursuant to this clause (H));
(I) [reserved];
(J) if an Event of Default has occurred and is continuing, all remaining Interest Proceeds shall be applied at the sole discretion of the Collateral Manager, either (1) to the payment of principal (to be allocated to the Loans on a pro rata basis) and (without duplication) accrued interest and fees on the Loans until repaid in full or (2) to remain in the Interest Collection Account;
(K) unless deferred by the Services Provider (so long as an Event of Default has not occurred or its designee)is not continuing, to the payment to the Services Provider (or its designee) of (1) all due and unpaid Subordinated Services Fees that have not been deferred on prior Quarterly Payment Dates and (2) any previously deferred Subordinated Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(L) if the Borrower is party to any Interest Hedge Agreements, to any amounts owing by the Borrower to the Interest Hedge Counterparties under such Interest Hedge Agreements to the extent not paid under clause (B) above (without regard to any cap or limitation);
(M) all remaining Interest Proceeds:
(1) during the Reinvestment Revolving Period, at the sole discretion of the Services ProviderCollateral Manager, either (i) to the Borrower for payment as directed by the Borrower, including as to make a distribution to the Parent; (ii) to the Collection Account to be applied as Principal Proceeds for the purchase of additional Collateral LoansObligations, (iiiii) to be applied to prepay the principal of the Loans pursuant to Section 2.72.7 (on a pro rata basis), and/or along with all accrued and unpaid interest, Make-Whole Fees, Minimum Utilization Fees and Unused Fees, (iviii) for deposit into the Future Funding Unfunded Reserve AccountAccount and/or (iv) any remainder to the Borrower; and
(2) after the Reinvestment Revolving Period, to at the Borrower or for payment as directed by sole discretion of the BorrowerCollateral Manager, either to (i) make a distribution to the Parent; or (ii) be applied to prepay the principal of the Loans pursuant to Section 2.72.7 (on a pro rata basis), along with all accrued and unpaid interest, Make-Whole Fees, Minimum Utilization Fees and Unused Fees, or (ii) any remainder to the Borrower.
(ii) On each Quarterly Payment Distribution Date, following the distribution of all Interest Proceeds as set forth in Section 9.1(a)(i) above, Principal Proceeds (other than Principal Proceeds previously reinvested in Collateral Loans Obligations or otherwise designated by the Borrower for application pursuant to the parenthetical contained in Section 8.2(a)(ii) or otherwise to provide for any Unsettled Amount)) shall be applied as follows; provided that after giving effect to any such payment no Commitment Shortfall would exist (and, to the extent that any Commitment Shortfall would exist, Principal Proceeds shall first be deposited in the Future Funding Unfunded Reserve Account in the amount needed to eliminate such Commitment Shortfall):
(A) to the payment of unpaid amounts in items (A) through (CD) in Section 9.1(a)(i) above (in such order of priority stated therein)priority) to the extent not paid thereunder;
(B) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any interest payable at the Post-Default Rate);
(C) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if an Event of Default or a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied or, with respect to an Event of Default, the Loans are paid in full;
(D) to the payment of any interest payable at the Post-Default Rate;
(E) during the Reinvestment Revolving Period, all remaining Principal Proceeds mayProceeds, at the sole discretion of the Services ProviderCollateral Manager:
(1) be deposited into to the Collection Account for the purchase of additional Collateral Loans;Obligations; and/or
(2) to be applied to prepay the principal of the Loans pursuant to Section 2.72.7 (on a pro rata basis), along with all accrued and unpaid interest, Make-Whole Fees, Minimum Utilization Fees and Unused Fees; and/or
(3) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium; provided that, the Lender Advance Rate Test shall be satisfied immediately after giving effect to such payment;
(4) be deposited into the Future Funding Unfunded Reserve Account; and;
(5) so long as no Default or Event of Default has occurred and is continuing or would result, be used to make a Permitted Parent Distribution.
(FC) after the Reinvestment Revolving Period,
(1) first, to be applied to the payment of interest, principal, Commitment Fees principal (to be allocated to the Loans on a pro rata basis) and other obligations (without duplication) accrued interest and fees on the Loans until repaid in full;
(2D) secondafter the Revolving Period, to the payment of amounts referred to in items (E) through (J) in of Section 9.1(a)(i) above, in the priority set forth therein but only to the extent not paid in full thereunder; and
(3E) thirdafter the Revolving Period, any remainder to the Borrower or for payment as directed by the Borrower, including to make a distribution to the Parent.
(b) If on any Quarterly Payment Distribution Date the amount available in the Payment Account from amounts received in the related Due Period is insufficient to make the full amount of the disbursements required pursuant to any clause in the Priority of Payments, the Collateral Agent shall make the disbursements called for in the order and according to the priority set forth under Section 9.1(a) and ratably or in the order provided within the applicable a clause, as applicable, in accordance with the respective amounts owing under any such clause, to the extent funds are available therefor.
(c) On each Quarterly Payment Distribution Date, the Collateral Administrator (on behalf of the Borrower) shall deliver to the Administrative Agent, the Collateral Agent, the Services Provider and S&P (so long as S&P is rating the Loans) Agent a report (the “Payment Date Quarterly Distribution Report”) containing the information described in Exhibit E hereto pursuant to Section 8.9 8.10 specifying the amount of Interest Proceeds (and, of such amount, the amount of Fee Proceeds) and Principal Xxxxxxxx Proceeds received during the preceding Due Period and Period, the amounts to be applied to each purpose set forth in Section 9.1(a), and a calculation of the Net Aggregate Exposure Amount (which shall be determined based on information provided by the Borrower to the Collateral Administrator including any Revolving Collateral Obligations and Delayed Drawdown Loans and the unpaid purchase price of all Collateral Obligations that the Borrower entered into binding commitments before the end of the Revolving Period to originate or acquire after the end of the Revolving Period). The information in each Payment Date Quarterly Distribution Report shall be determined as of the Calculation Date immediately preceding the applicable Quarterly Payment Distribution Date. For the avoidance of doubt, in any month in which a Quarterly Payment Date occurs, the Collateral Report and the Payment Date Report may be combined into a single report.
(d) In the event that the Services Provider obtains actual knowledge of or receives written notice that any Interest Hedge Counterparty defaults in the payment of its obligations to the Borrower under any Interest Hedge Agreement on the payment date therefor, the Services Provider shall notify the Borrower which shall (or the Services Provider on behalf of the Borrower shall) make a demand on such Interest Hedge Counterparty, or any guarantor, if applicable, demanding payment by 12:00 noon, New York time, on the next Business Day. The Services Provider shall give notice to the Lenders, the Administrative Agent, S&P, the Borrower and the Collateral Agent upon the continuing failure by such Interest Hedge Counterparty (or applicable guarantor) to perform its obligations for one Business Day following a demand made by the Borrower (or the Services Provider on behalf of the Borrower) on such Interest Hedge Counterparty.
Appears in 1 contract
Samples: Credit Agreement (AB Private Credit Investors Corp)
Disbursements of Funds from Payment Account. (a) Notwithstanding any other provision of this Agreement other than Section 6.4, but subject to the other subsections of this Section 9.1 and Article II (with respect to optional repayment of Loans), on each Quarterly Payment Date, the Collateral Agent shall disburse amounts transferred to the Payment Account from the Collection Account pursuant to Section 8.2(h8.2(e) as follows and for application in accordance with the following priorities (the “Priority of Payments”):
(i) On each Quarterly Payment Date, prior to the distribution of any Principal Proceeds, Interest Proceeds shall be applied as follows:
(A) to the payment of the following amounts in the following priority (without duplication): (1) Taxes (but not including any accrued and unpaid Increased Costs), registration and filing fees then due and owing by the Borrower, (2) accrued and unpaid Administrative Expenses in the order set forth in the definition thereof and (3) on any Quarterly Payment Date other than the final Quarterly Payment Date, to the retention in the Collection Account of an amount equal to the Retained Expense Amount for such Quarterly Payment Date; provided that the aggregate amount of payments under this clause (A)(2) and (3) shall not exceed on any Quarterly Payment Date the sum of (a) the Quarterly Cap plus (b) the Retained Expense Amount determined on the immediately prior Quarterly Payment Date less (c) Administrative Expenses paid pursuant to Section 8.2(g8.2(d) during the Due Period relating to such Quarterly Payment Date;
(B) if the Borrower is party to any Interest Hedge Agreements, to the payment of any amounts owing by the Borrower to the Interest Hedge Counterparties thereunder (exclusive of any early termination or liquidation payment owing by the Borrower by reason of the occurrence of an event of default or termination event thereunder with respect to such Interest Hedge Counterparty where such Interest Hedge Counterparty is the sole affected party or the defaulting party);
(C) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of all due and unpaid Senior Services Fees that have not been deferred on prior Quarterly Payment DatesDates in an amount not to exceed the accrued Senior Services Fees for one Due Period);
(D) to the Lenders for payment (on a pro rata basis) of accrued interest and solely to the Revolving Lenders in respect of their Revolving Loans, Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any the additional two percent of interest payable at the Post-Default Rate);
(E) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if a Market Trigger has occurred and is continuingDate, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied;
(F) to the payment of amounts described in clause (A) above to the extent not paid thereunder (without regard to any cap or limitation);
(G) first, to the payment of any the additional two percent of interest payable at the Post-Default Rate;
(H) , and second, to the payment of any Lender’s Increased Costs;
(I) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium;
(JH) to the payment to the Services Provider (or its designee) of any previously deferred Senior Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(KI) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of (1) all due and unpaid Subordinated Services Fees that have not been deferred on prior Quarterly Payment Dates and (2) any previously deferred Subordinated Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(LJ) if the Borrower is party to any Interest Hedge Agreements, to any amounts owing by the Borrower to the Interest Hedge Counterparties under such Interest Hedge Agreements to the extent not paid under clause (B) above (without regard to any cap or limitation);
(MK) all remaining Interest Proceeds:
(1) during the Reinvestment Period, at the sole discretion of the Services Provider, either (i) to the Borrower for payment as directed by the Borrower, including as to make a distribution to the Parent; (ii) to the Collection Account to be applied as Principal Proceeds for the purchase or origination of additional Collateral Loans, (iii) to be applied to prepay the principal of the Loans pursuant to Section 2.7, and/or (iv) for deposit into the Future Funding Reserve Account; and
(2) after the Reinvestment Period, to the Borrower or for payment as directed by the Borrower, either to (i) make a distribution to the Parent; or (ii) prepay the principal of the Loans pursuant to Section 2.7.
(ii) On each Quarterly Payment Date, following the distribution of all Interest Proceeds as set forth in Section 9.1(a)(i) above, Principal Proceeds (other than Principal Proceeds previously reinvested in Collateral Loans or otherwise designated by the Borrower for application pursuant to the parenthetical contained in Section 8.2(a)(ii) or otherwise to provide for any Unsettled Amount) Amount shall be applied as follows; provided that after giving effect to any such payment no Commitment Shortfall would exist (and, to the extent that any Commitment Shortfall would exist, Principal Proceeds shall first be deposited in the Future Funding Reserve Account in the amount needed to eliminate such Commitment Shortfall):
(A) to the payment of unpaid amounts in items (A) through (CE) in Section 9.1(a)(i) above (in such order of priority stated therein);
(B) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any interest payable at the Post-Default Rate);
(C) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if an Event of Default or a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied or, with respect to an Event of Default, the Loans are paid in full;
(D) to the payment of any interest payable at the Post-Default Rate;
(E) during the Reinvestment Period, all remaining Principal Proceeds mayProceeds, at the sole discretion of the Services Provider:
(1) be deposited into to the Collection Account for the purchase or origination of additional Collateral Loans;
(2) to be applied to prepay the principal of the Loans pursuant to Section 2.7; and/or
(3) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium; provided that, the Lender Advance Rate Test shall be satisfied immediately after giving effect to such payment;
(4) be deposited into the Future Funding Reserve Account; and;
(5) so long as no Default or Event of Default has occurred and is continuing or would result, be used to make a Permitted Parent Distribution.
(FC) after the Reinvestment Period,
(1) first, to be applied to the payment of interest, principal, Commitment Fees and other obligations on the Loans until repaid in full;
(2) second, to the payment of amounts referred to in items (EF) through (J) in Section 9.1(a)(i) above, in the priority set forth therein but only to the extent not paid in full thereunder; and
(3) third, to the Borrower or for payment as directed by the Borrower, including to make a distribution to the Parent.
(b) If on any Quarterly Payment Date the amount available in the Payment Account from amounts received in the related Due Period is insufficient to make the full amount of the disbursements required pursuant to any clause in the Priority of Payments, the Collateral Agent shall make the disbursements called for in the order and according to the priority set forth under Section 9.1(a) and ratably or in the order provided within the applicable a clause, as applicable, in accordance with the respective amounts owing under any such clause, to the extent funds are available therefor.
(c) On each Quarterly Payment Date, the Collateral Administrator (on behalf of the Borrower) shall deliver to the Administrative Agent, the Collateral Agent, the Services Provider and S&P S&P, Fitch or DBRS, as applicable (so long as S&P S&P, Fitch or DBRS, as applicable, is rating the Loans) a report (the “Payment Date Report”) containing the information described in Exhibit E hereto pursuant to Section 8.9 specifying the amount of Interest Proceeds (and, of such amount, the amount of Fee Proceeds) and Principal Xxxxxxxx Proceeds received during the preceding Due Period and the amounts to be applied to each purpose set forth in Section 9.1(a). The information in each Payment Date Report shall be determined as of the Calculation Date immediately preceding the applicable Quarterly Payment Date. For the avoidance of doubt, in any month in which a Quarterly Payment Date occurs, the Collateral Report and the Payment Date Report may be combined into a single report.
(d) In the event that the Services Provider obtains actual knowledge of or receives written notice that any Interest Hedge Counterparty defaults in the payment of its obligations to the Borrower under any Interest Hedge Agreement on the payment date therefor, the Services Provider shall notify the Borrower which shall (or the Services Provider on behalf of the Borrower shall) make a demand on such Interest Hedge Counterparty, or any guarantor, if applicable, demanding payment by 12:00 noon, New York time, on the next Business Day. The Services Provider shall give notice to the Lenders, the Administrative Agent, S&PS&P or Fitch or DBRS (as applicable), the Borrower and the Collateral Agent upon the continuing failure by such Interest Hedge Counterparty (or applicable guarantor) to perform its obligations for one Business Day following a demand made by the Borrower (or the Services Provider on behalf of the Borrower) on such Interest Hedge Counterparty.
Appears in 1 contract
Disbursements of Funds from Payment Account. (a) Notwithstanding any other provision of this Agreement other than Section 6.4, but subject to the other subsections of this Section 9.1 and Article II (with respect to optional repayment of Loans), on each Quarterly Payment Date, the Collateral Agent shall disburse amounts transferred to the Payment Account from the Collection Account pursuant to Section 8.2(h8.2(e) as follows and for application in accordance with the following priorities (the “Priority of Payments”):
(i) On each Quarterly Payment Date, prior to the distribution of any Principal Proceeds, Interest Proceeds shall be applied as follows:
(A) to the payment of the following amounts in the following priority (without duplication): (1) Taxes (but not including any accrued and unpaid Increased Costs), registration and filing fees then due and owing by the Borrower, Borrower (2) accrued and unpaid Administrative Expenses in the order set forth in the definition thereof and (3) on any Quarterly Payment Date other than the final Quarterly Payment Date, to the retention in the Collection Account of an amount equal to the Retained Expense Amount for such Quarterly Payment Date; provided that the aggregate amount of payments under this clause (A)(2) and (3) shall not exceed on any Quarterly Payment Date the sum of (a) the Quarterly Cap plus (b) the Retained Expense Amount determined on the immediately prior Quarterly Payment Date less (c) Administrative Expenses paid pursuant to Section 8.2(g8.2(d) during the Due Period relating to such Quarterly Payment Date;
(B) if the Borrower is party to any Interest Hedge Agreements, to the payment of any amounts owing by the Borrower to the Interest Hedge Counterparties thereunder (exclusive of any early termination or liquidation payment owing by the Borrower by reason of the occurrence of an event of default or termination event thereunder with respect to such Interest Hedge Counterparty where such Interest Hedge Counterparty is the sole affected party or the defaulting party);
(C) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of all due and unpaid Senior Services Fees that have not been deferred on prior Quarterly Payment Dates);
(D) to the Lenders for payment (on a pro rata basis) of accrued interest and solely to the Revolving Lenders in respect of their Revolving Loans, Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any the additional two percent of interest payable at the Post-Default Rate);
(E) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if a Market Trigger has occurred and is continuingDate, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied;
(F) to the payment of amounts described in clause (A) above to the extent not paid thereunder (without regard to any cap or limitation);
(G) first, to the payment of any interest payable at amounts described in clause (D) above to the Post-Default Rate;
(H) extent not paid thereunder, and second, to the payment of any Lender’s Increased Costs;
(I) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium;
(JH) to the payment to the Services Provider (or its designee) of any previously deferred Senior Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(KI) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of (1) all due and unpaid Subordinated Services Fees that have not been deferred on prior Quarterly Payment Dates and (2) any previously deferred Subordinated Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(LJ) if the Borrower is party to any Interest Hedge Agreements, to any amounts owing by the Borrower to the Interest Hedge Counterparties under such Interest Hedge Agreements to the extent not paid under clause (B) above (without regard to any cap or limitation);
(MK) all remaining Interest Proceeds:
(1) during the Reinvestment Period, at the sole discretion of the Services Provider, either (i) to the Borrower for payment as directed by the Borrower, including as to make a distribution to the Parent; (ii) to the Collection Account to be applied as Principal Proceeds for the purchase of additional Collateral Loans, (iii) to be applied to prepay the principal of the Loans pursuant to Section 2.7, and/or (iv) for deposit into the Future Funding Reserve Account; and
(2) after the Reinvestment Period, to the Borrower or for payment as directed by the Borrower, either to (i) make a distribution to the Parent; or (ii) prepay the principal of the Loans pursuant to Section 2.7.
(ii) On each Quarterly Payment Date, following the distribution of all Interest Proceeds as set forth in Section 9.1(a)(i) above, Principal Proceeds (other than Principal Proceeds previously reinvested in Collateral Loans or otherwise designated by the Borrower for application pursuant to the parenthetical contained in Section 8.2(a)(ii) or otherwise to provide for any Unsettled Amount) Amount shall be applied as follows; provided that after giving effect to any such payment no Commitment Shortfall would exist (and, to the extent that any Commitment Shortfall would exist, Principal Proceeds shall first be deposited in the Future Funding Reserve Account in the amount needed to eliminate such Commitment Shortfall):
(A) to the payment of unpaid amounts in items (A) through (CE) in Section 9.1(a)(i) above (in such order of priority stated therein);
(B) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any interest payable at the Post-Default Rate);
(C) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if an Event of Default or a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied or, with respect to an Event of Default, the Loans are paid in full;
(D) to the payment of any interest payable at the Post-Default Rate;
(E) ; during the Reinvestment Period, all remaining Principal Proceeds mayProceeds, at the sole discretion of the Services Provider:
(1) be deposited into to the Collection Account for the purchase of additional Collateral Loans;
(2) to be applied to prepay the principal of the Loans pursuant to Section 2.7; and/or
(3) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium; provided that, the Lender Advance Rate Test shall be satisfied immediately after giving effect to such payment;
(4) be deposited into the Future Funding Reserve Account; and
(5) so long as no Default or Event of Default has occurred and is continuing or would result, be used to make a Permitted Parent Distribution.
(F) after the Reinvestment Period,
(1) first, to be applied to the payment of interest, principal, Commitment Fees and other obligations on the Loans until repaid in full;
(2) second, to the payment of amounts referred to in items (E) through (J) in Section 9.1(a)(i) above, in the priority set forth therein but only to the extent not paid in full thereunder; and
(3) third, to the Borrower or for payment as directed by the Borrower, including to make a distribution to the Parent.
(b) If on any Quarterly Payment Date the amount available in the Payment Account from amounts received in the related Due Period is insufficient to make the full amount of the disbursements required pursuant to any clause in the Priority of Payments, the Collateral Agent shall make the disbursements called for in the order and according to the priority set forth under Section 9.1(a) and ratably or in the order provided within the applicable clause, as applicable, in accordance with the respective amounts owing under any such clause, to the extent funds are available therefor.
(c) On each Quarterly Payment Date, the Collateral Administrator (on behalf of the Borrower) shall deliver to the Administrative Agent, the Collateral Agent, the Services Provider and S&P (so long as S&P is rating the Loans) a report (the “Payment Date Report”) containing the information described in Exhibit E hereto pursuant to Section 8.9 specifying the amount of Interest Proceeds (and, of such amount, the amount of Fee Proceeds) and Principal Xxxxxxxx received during the preceding Due Period and the amounts to be applied to each purpose set forth in Section 9.1(a). The information in each Payment Date Report shall be determined as of the Calculation Date immediately preceding the applicable Quarterly Payment Date. For the avoidance of doubt, in any month in which a Quarterly Payment Date occurs, the Collateral Report and the Payment Date Report may be combined into a single report.
(d) In the event that the Services Provider obtains actual knowledge of or receives written notice that any Interest Hedge Counterparty defaults in the payment of its obligations to the Borrower under any Interest Hedge Agreement on the payment date therefor, the Services Provider shall notify the Borrower which shall (or the Services Provider on behalf of the Borrower shall) make a demand on such Interest Hedge Counterparty, or any guarantor, if applicable, demanding payment by 12:00 noon, New York time, on the next Business Day. The Services Provider shall give notice to the Lenders, the Administrative Agent, S&P, the Borrower and the Collateral Agent upon the continuing failure by such Interest Hedge Counterparty (or applicable guarantor) to perform its obligations for one Business Day following a demand made by the Borrower (or the Services Provider on behalf of the Borrower) on such Interest Hedge Counterparty.
Appears in 1 contract
Disbursements of Funds from Payment Account. (a) Notwithstanding any other provision of this Agreement other than Section 6.4, but subject to the other subsections of this Section 9.1 and Article II (with respect to optional repayment of Loans), on each Quarterly Payment Date, the Collateral Agent shall disburse amounts transferred to the Payment Account from the Collection Account pursuant to Section 8.2(h8.2(e) as follows and for application in accordance with the following priorities (the “Priority of Payments”):
(i) On each Quarterly Payment Date, prior to the distribution of any Principal Proceeds, Interest Proceeds shall be applied as follows:
(A) to the payment of the following amounts in the following priority (without duplication): (1) Taxes (but not including any accrued and unpaid Increased Costs), registration and filing fees then due and owing by the Borrower, Borrower (2) accrued and unpaid Administrative Expenses in the order set forth in the definition thereof and (3) on any Quarterly Payment Date other than the final Quarterly Payment Date, to the retention in the Collection Account of an amount equal to the Retained Expense Amount for such Quarterly Payment Date; provided that the aggregate amount of payments under this clause (A)(2) and (3) shall not exceed on any Quarterly Payment Date the sum of (a) the Quarterly Cap plus (b) the Retained Expense Amount determined on the immediately prior Quarterly Payment Date less (c) Administrative Expenses paid pursuant to Section 8.2(g8.2(d) during the Due Period relating to such Quarterly Payment Date;
(B) if the Borrower is party to any Interest Hedge Agreements, to the payment of any amounts owing by the Borrower to the Interest Hedge Counterparties thereunder (exclusive of any early termination or liquidation payment owing by the Borrower by reason of the occurrence of an event of default or termination event thereunder with respect to such Interest Hedge Counterparty where such Interest Hedge Counterparty is the sole affected party or the defaulting party);
(C) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of all due and unpaid Senior Services Fees that have not been deferred on prior Quarterly Payment Dates);
(D) to the Lenders for payment (on a pro rata basis) of accrued interest and solely to the Revolving Lenders in respect of their Revolving Loans, Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any the additional two percent of interest payable at the Post-Default Rate);
(E) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if a Market Trigger has occurred and is continuingDate, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied;
(F) to the payment of amounts described in clause (A) above to the extent not paid thereunder (without regard to any cap or limitation);
(G) first, to the payment of any interest payable at amounts described in clause (D) above to the Post-Default Rate;
(H) extent not paid thereunder, and second, to the payment of any Lender’s Increased Costs;
(I) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium;
(JH) to the payment to the Services Provider (or its designee) of any previously deferred Senior Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(KI) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of (1) all due and unpaid Subordinated Services Fees that have not been deferred on prior Quarterly Payment Dates and (2) any previously deferred Subordinated Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(LJ) if the Borrower is party to any Interest Hedge Agreements, to any amounts owing by the Borrower to the Interest Hedge Counterparties under such Interest Hedge Agreements to the extent not paid under clause (B) above (without regard to any cap or limitation);
(MK) all remaining Interest Proceeds:
(1) during the Reinvestment Period, at the sole discretion of the Services Provider, either (i) to the Borrower for payment as directed by the Borrower, including as to make a distribution to the Parent; (ii) to the Collection Account to be applied as Principal Proceeds for the purchase or origination of additional Collateral Loans, (iii) to be applied to prepay the principal of the Loans pursuant to Section 2.7, and/or (iv) for deposit into the Future Funding Reserve Account; and
(2) after the Reinvestment Period, to the Borrower or for payment as directed by the Borrower, either to (i) make a distribution to the Parent; or (ii) prepay the principal of the Loans pursuant to Section 2.7.
(ii) On each Quarterly Payment Date, following the distribution of all Interest Proceeds as set forth in Section 9.1(a)(i) above, Principal Proceeds (other than Principal Proceeds previously reinvested in Collateral Loans or otherwise designated by the Borrower for application pursuant to the parenthetical contained in Section 8.2(a)(ii) or otherwise to provide for any Unsettled Amount) Amount shall be applied as follows; provided that after giving effect to any such payment no Commitment Shortfall would exist (and, to the extent that any Commitment Shortfall would exist, Principal Proceeds shall first be deposited in the Future Funding Reserve Account in the amount needed to eliminate such Commitment Shortfall):
(A) to the payment of unpaid amounts in items (A) through (CE) in Section 9.1(a)(i) above (in such order of priority stated therein);
(B) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any interest payable at the Post-Default Rate);
(C) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if an Event of Default or a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied or, with respect to an Event of Default, the Loans are paid in full;
(D) to the payment of any interest payable at the Post-Default Rate;
(E) ; during the Reinvestment Period, all remaining Principal Proceeds mayProceeds, at the sole discretion of the Services Provider:
(1) be deposited into to the Collection Account for the purchase of additional Collateral Loans;
(2) to be applied to prepay the principal of the Loans pursuant to Section 2.7; and/or
(3) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium; provided that, the Lender Advance Rate Test shall be satisfied immediately after giving effect to such payment;
(4) be deposited into the Future Funding Reserve Account; and
(5) so long as no Default or Event of Default has occurred and is continuing or would result, be used to make a Permitted Parent Distribution.
(F) after the Reinvestment Period,
(1) first, to be applied to the payment of interest, principal, Commitment Fees and other obligations on the Loans until repaid in full;
(2) second, to the payment of amounts referred to in items (E) through (J) in Section 9.1(a)(i) above, in the priority set forth therein but only to the extent not paid in full thereunder; and
(3) third, to the Borrower or for payment as directed by the Borrower, including to make a distribution to the Parent.
(b) If on any Quarterly Payment Date the amount available in the Payment Account from amounts received in the related Due Period is insufficient to make the full amount of the disbursements required pursuant to any clause in the Priority of Payments, the Collateral Agent shall make the disbursements called for in the order and according to the priority set forth under Section 9.1(a) and ratably or in the order provided within the applicable clause, as applicable, in accordance with the respective amounts owing under any such clause, to the extent funds are available therefor.
(c) On each Quarterly Payment Date, the Collateral Administrator (on behalf of the Borrower) shall deliver to the Administrative Agent, the Collateral Agent, the Services Provider and S&P (so long as S&P is rating the Loans) a report (the “Payment Date Report”) containing the information described in Exhibit E hereto pursuant to Section 8.9 specifying the amount of Interest Proceeds (and, of such amount, the amount of Fee Proceeds) and Principal Xxxxxxxx received during the preceding Due Period and the amounts to be applied to each purpose set forth in Section 9.1(a). The information in each Payment Date Report shall be determined as of the Calculation Date immediately preceding the applicable Quarterly Payment Date. For the avoidance of doubt, in any month in which a Quarterly Payment Date occurs, the Collateral Report and the Payment Date Report may be combined into a single report.
(d) In the event that the Services Provider obtains actual knowledge of or receives written notice that any Interest Hedge Counterparty defaults in the payment of its obligations to the Borrower under any Interest Hedge Agreement on the payment date therefor, the Services Provider shall notify the Borrower which shall (or the Services Provider on behalf of the Borrower shall) make a demand on such Interest Hedge Counterparty, or any guarantor, if applicable, demanding payment by 12:00 noon, New York time, on the next Business Day. The Services Provider shall give notice to the Lenders, the Administrative Agent, S&P, the Borrower and the Collateral Agent upon the continuing failure by such Interest Hedge Counterparty (or applicable guarantor) to perform its obligations for one Business Day following a demand made by the Borrower (or the Services Provider on behalf of the Borrower) on such Interest Hedge Counterparty.
Appears in 1 contract
Disbursements of Funds from Payment Account. (a) Notwithstanding any other provision of this Agreement other than Section 6.4, but subject to the other subsections of this Section 9.1 and Article II (with respect to optional repayment of Loans), on each Quarterly Payment Date, the Collateral Agent shall disburse amounts transferred to the Payment Account from the Collection Account pursuant to Section 8.2(h8.2(e) as follows and for application in accordance with the following priorities (the “Priority of Payments”):
(i) On each Quarterly Payment Date, prior to the distribution of any Principal Proceeds, Interest Proceeds shall be applied as follows:
(A) to the payment of the following amounts in the following priority (without duplication): (1) Taxes (but not including any accrued and unpaid Increased Costs), registration registration, government, registered office and filing fees then due and owing by the Borrower, (2) accrued and unpaid Administrative Expenses in the order set forth in the definition thereof and (3) on any Quarterly Payment Date other than the final Quarterly Payment Date, to the retention in the Collection Account of an amount equal to the Retained Expense Amount for such Quarterly Payment Date; provided that the aggregate amount of payments under this clause (A)(2) and (3) shall not exceed on any Quarterly Payment Date the sum of (a) the Quarterly Cap plus (b) the Retained Expense Amount determined on the immediately prior Quarterly Payment Date less (c) Administrative Expenses paid pursuant to Section 8.2(g8.2(d) during the Due Period relating to such Quarterly Payment Date;
(B) if the Borrower is party to any Interest Hedge Agreements, to the payment of any amounts owing by the Borrower to the Interest Hedge Counterparties thereunder (exclusive of any early termination or liquidation payment owing by the Borrower by reason of the occurrence of an event of default or termination event thereunder with respect to such Interest Hedge Counterparty where such Interest Hedge Counterparty is the sole affected party or the defaulting party);
(C) unless waived or deferred by the Services Provider Collateral Manager, which waiver (or its designee)but not deferral) shall be permanent and irrevocable, to the payment to the Services Provider (or its designee) Collateral Manager of all due and unpaid Senior Services Collateral Management Fees that have not been waived or deferred on prior Quarterly Payment DatesDates (provided that, for the avoidance of doubt, no waived or deferred Collateral Management Fees shall be payable pursuant to this clause (C));
(D) to the Swingline Lender for payment of accrued interest on the Swingline Loans due on such Quarterly Payment Date (excluding any Capped Amounts and the additional two percent of interest payable at the Post-Default Rate);
(E) to the Class A Lenders for payment of accrued interest (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Class A Loans due on such Quarterly Payment Date (excluding in the case of interest, any Capped Amounts and the additional two percent of interest payable at the Post-Default Rate);
(EF) if any of the Senior Coverage Tests are not satisfied as of the related Calculation Date or if a Market Trigger has occurred and is continuingDate, (1) first, to the prepayment of principal of the outstanding Swingline Loans until the Swingline Loans are paid in full and then to the prepayment of principal of the Class A Loans (to be allocated to the Class A Loans according to the Principal Allocation Formula) or (2) only if the outstanding principal amount of both the Swingline Loans and the Class A Loans equals zero (both before and after giving effect to any payment made pursuant to clause (1)), to deposit in the Future Funding Reserve Account, in each case in the amount necessary to result in the satisfaction of the Senior Coverage Tests (on a pro forma basis as of such Calculation Date);
(G) to the Class B Lenders for payment (on a pro rata basis) of accrued interest on the Class B Loans (other than the additional two percent of interest payable at the Post-Default Rate and any Class B Deferred Interest, but including interest accrued on such Class B Deferred Interest) due on such Quarterly Payment Date;
(H) if any of the Junior Coverage Tests are not satisfied as of the related Calculation Date, (1) first, to the prepayment of principal of the outstanding Swingline Loans until the Swingline Loans are repaid in full, second, to the prepayment of principal of the Class A Loans (to be allocated to the Class A Loans according to the Principal Allocation Formula) until the Class A Loans are paid in full and third, to the prepayment of principal of the Class B Loans or (2) only if the outstanding principal amount of the Swingline Loans, the Class A Loans and the Class B Loans equals zero (both before and after giving effect to any payment pursuant to clause (1)), to deposit in the Future Funding Reserve Account, in each case in the amount necessary to result in the satisfaction of the Junior Coverage Tests (on a pro forma basis as of such tests are satisfiedCalculation Date);
(FI) to the Class B Lenders for payment of accrued Class B Deferred Interest;
(J) to the payment of amounts described in clause (A) above to the extent not paid thereunder (without regard to any cap or limitation);
(GK) first, to the payment of any Class A Lender’s Capped Amounts and the additional two percent of interest payable at the Post-Default Rate;
(H) , second, to the payment of any Class A Lender’s Increased Costs, third, to the payment of any Class B Lender’s Capped Amounts and the additional two percent of interest payable at the Post-Default Rate and fourth, to the payment of any Class B Lender’s Increased Costs;
(I) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium;
(JL) to the payment to the Services Provider (or its designee) Collateral Manager of any previously deferred Senior Services (but not waived) Collateral Management Fees that the Services Provider Collateral Manager elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation DateDate (provided that, for the avoidance of doubt, no waived Collateral Management Fees shall be payable pursuant to this clause (L));
(K) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of (1) all due and unpaid Subordinated Services Fees that have not been deferred on prior Quarterly Payment Dates and (2) any previously deferred Subordinated Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(LM) if the Borrower is party to any Interest Hedge Agreements, to any amounts owing by the Borrower to the Interest Hedge Counterparties under such Interest Hedge Agreements to the extent not paid under clause (B) above (without regard to any cap or limitation);
(MN) all remaining Interest Proceeds:
(1) during the Reinvestment Period, at the sole discretion of the Services ProviderCollateral Manager, either (i) to the Borrower for payment as directed by the Borrower, including as to make a distribution to the Parent; (ii) to the Collection Account to be applied as Principal Proceeds for the purchase of additional Collateral Loans, (iiiii) to be applied to prepay the principal of the Loans pursuant to Section 2.7, and/or (iviii) for deposit into the Future Funding Reserve AccountAccount and/or (iv) to the equity of the Borrower; and
(2) after the Reinvestment Period, to at the Borrower or for payment as directed by sole discretion of the Borrower, either to (i) make a distribution to the Parent; or (ii) be applied to prepay the principal of the Loans pursuant to Section 2.72.7 or (ii) to the equity of the Borrower.
(ii) On each Quarterly Payment Date, following the distribution of all Interest Proceeds as set forth in Section 9.1(a)(i) above, Principal Proceeds (other than Principal Proceeds previously reinvested in Collateral Loans or otherwise designated by the Borrower for application pursuant to the parenthetical contained in Section 8.2(a)(ii) or otherwise to provide for any Unsettled Amount)) shall be applied as follows; provided that that, after giving effect to any such payment payment, no Commitment Shortfall would exist (and, to the extent that any Commitment Shortfall would exist, Principal Proceeds shall first be deposited in the Future Funding Reserve Account in the amount needed to eliminate such Commitment Shortfall):
(A) to the payment of unpaid amounts in items (A) through (CH) in Section 9.1(a)(i) above (in such order of priority stated thereinpriority);
(B) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any interest payable at the Post-Default Rate);
(C) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if an Event of Default or a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied or, with respect to an Event of Default, the Loans are paid in full;
(D) to the payment of any interest payable at the Post-Default Rate;
(E) during the Reinvestment Period, all remaining Principal Proceeds mayProceeds, at the sole discretion of the Services ProviderCollateral Manager:
(1) be deposited into to the Collection Account for the purchase of additional Collateral Loans;; and/or
(2) to be applied to prepay the principal of the Loans pursuant to Section 2.7; and/or
(3) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium; provided that, the Lender Advance Rate Test shall be satisfied immediately after giving effect to such payment;
(4) be deposited into the Future Funding Reserve Account; andand/or
(54) so long as to the Borrower; provided that before and after such distribution: (x) the Borrower satisfies the Collateral Quality Test and the Concentration Limitations, (y) the Senior Overcollateralization Ratio equals or exceeds 153.00% and (z) no Default or Default, Event of Default or event constituting a “Cause” as defined in the Collateral Management Agreement has occurred and is continuing or would result, be used to make will occur as a Permitted Parent Distribution.result of such distribution;
(FC) after the Reinvestment Period,, to be applied first to the payment of principal on the Swingline Loans until repaid in full and then to the payment of principal on the Class A Loans (to be allocated to the Class A Loans according to the Principal Allocation Formula) until repaid in full;
(1D) firstafter the Reinvestment Period, to be applied to the payment of interest, principal, Commitment Fees accrued interest (including Class B Deferred Interest) and other obligations accrued fees on the Class B Loans until repaid in full;
(2E) secondafter the Reinvestment Period, to the payment of amounts referred to in items clauses (EJ) through (JM) in Section 9.1(a)(iof subsection (i) above, in the priority set forth therein but only to the extent not paid in full thereunder; and
(3F) thirdafter the Reinvestment Period, to the Borrower or for payment as directed by equity of the Borrower, including to make a distribution to the Parent.
(b) If on any Quarterly Payment Date the amount available in the Payment Account from amounts received in the related Due Period is insufficient to make the full amount of the disbursements required pursuant to any clause in the Priority of Payments, the Collateral Agent shall make the disbursements called for in the order and according to the priority set forth under Section 9.1(a) and ratably or in the order provided within the applicable a clause, as applicable, in accordance with the respective amounts owing under any such clause, to the extent funds are available therefor.
(c) On each Quarterly Payment Date, the Collateral Administrator (on behalf of the Borrower) shall deliver to the Administrative Agent, the Collateral Agent, the Services Provider Agent and to S&P (so long as S&P is rating the Loans) a report (the “Payment Date Report”) containing the information described in Exhibit E hereto pursuant to Section 8.9 specifying the amount of Interest Proceeds (and, of such amount, the amount of Fee Proceeds) and Principal Xxxxxxxx Proceeds received during the preceding Due Period and Period, the amounts to be applied to each purpose set forth in Section 9.1(a), and a calculation of the Net Aggregate Exposure Amount (which shall be determined based on information provided by the Borrower to the Collateral Administrator including any Revolving Collateral Loans and Delayed Funding Loans and the unpaid purchase price of all Collateral Loans that the Borrower entered into binding commitments before the end of the Reinvestment Period to originate or purchase after the end of the Reinvestment Period). The information in each Payment Date Report shall be determined as of the Calculation Date immediately preceding the applicable Quarterly Payment Date. For the avoidance of doubt, in any month in which a Quarterly Payment Date occurs, the Collateral Report and the Each Payment Date Report may be combined into a single reportshall constitute instructions to the Collateral Agent to withdraw funds from the Payment Account and pay or transfer such amounts set forth in such Payment Date Report in the manner specified and in accordance with the priorities established in Section 9.1(a).
(d) In the event that the Services Provider Collateral Manager obtains actual knowledge of or receives written notice that any Interest Hedge Counterparty defaults in the payment of its obligations to the Borrower under any Interest Hedge Agreement on the payment date therefor, the Services Provider Collateral Manager shall notify the Borrower which shall (or the Services Provider Collateral Manager on behalf of the Borrower shall) make a demand on such Interest Hedge Counterparty, or any guarantor, if applicable, demanding payment by 12:00 noon, New York time, on the next Business Day. The Services Provider Collateral Manager shall give notice to the Lenders, the Administrative Agent, S&P, the Borrower and the Collateral Agent upon the continuing failure by such Interest Hedge Counterparty (or applicable guarantor) to perform its obligations for one Business Day following a demand made by the Borrower (or the Services Provider Collateral Manager on behalf of the Borrower) on such Interest Hedge Counterparty.
(e) All amounts to be paid to the Borrower under this Section 9.1 shall be paid to such account as the Borrower may designate and upon such payment will be released from the lien of this Agreement.
Appears in 1 contract
Disbursements of Funds from Payment Account. (a) Notwithstanding any other provision of this Agreement other than Section 6.4, but subject to the other subsections of this Section 9.1 and Article II (with respect to optional repayment of Senior Loans), on each Quarterly Payment Date, the Collateral Agent shall disburse amounts transferred to the Payment Account from the Collection Account pursuant to Section 8.2(h8.2(e) as follows and for application in accordance with the following priorities (the “Priority of Payments”):
(i) On each Quarterly Payment Date, prior to the distribution of any Principal Proceeds, Interest Proceeds shall be applied as follows:
(A) to the payment of the following amounts in the following priority (without duplication): (1) Taxes (but not including any accrued and unpaid Increased CostsIndemnified Taxes), registration and filing fees then due and owing by the Borrower, Borrower and (2) accrued and unpaid Administrative Expenses in the order set forth in the definition thereof and (3) on any Quarterly Payment Date other than the final Quarterly Payment Date, to the retention in the Collection Account of an amount equal to the Retained Expense Amount for such Quarterly Payment Datethereof; provided that the aggregate amount of payments under this clause (A)(2) and (3) shall not exceed on any Quarterly Payment Date the sum of (a) the Quarterly Cap plus less (b) the Retained Expense Amount determined on the immediately prior Quarterly Payment Date less (c) Administrative Expenses paid pursuant to Section 8.2(g8.2(d) during the Due Period relating to such Quarterly Payment Date;
(B) if unless waived or deferred by the Borrower is party to any Interest Hedge AgreementsCollateral Manager, which waiver (but not deferral) shall be permanent and irrevocable, to the payment of any amounts owing by the Borrower to the Interest Hedge Counterparties thereunder Collateral Manager of all due and unpaid Senior Collateral Management Fees that have not been waived or deferred on prior Quarterly Payment Dates (exclusive of any early termination provided that (i) no waived or liquidation payment owing by deferred Senior Collateral Management Fees shall be payable pursuant to this clause (B) and (ii) the Borrower by reason of amount paid under this clause (B) shall not exceed the occurrence of an event of default or termination event thereunder with respect to such Interest Hedge Counterparty where such Interest Hedge Counterparty is the sole affected party or the defaulting partyaccrued Senior Collateral Management Fees for one Due Period);
(C) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of all due and unpaid Senior Services Fees that have not been deferred on prior Quarterly Payment Dates;
(D) to the Lenders for payment (payment, on a pro rata basis) , of accrued interest Senior Base Interest Amounts and the Commitment Fees (in each case, ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any interest payable at the Post-Default Rate);
(ED) if any of the Senior Coverage Tests are not satisfied as of the related Calculation Date or if a Market Trigger has occurred and is continuingDate, to the prepayment of principal of the Senior Loans (to be allocated ratably in proportion to the Loans according Senior Lenders’ respective Percentage Shares), in the amount necessary to result in the satisfaction of the Senior Coverage Tests (on a pro forma basis as of such Calculation Date);
(E) to the Principal Allocation Formula) until such tests are satisfiedSenior Lenders for payment of first, any unpaid Senior Additional Interest Amounts and second, Senior Additional Payment Amounts, in each case ratably in proportion to the Senior Lenders’ respective Percentage Shares;
(F) unless waived or deferred by the Collateral Manager, which waiver (but not deferral) shall be permanent and irrevocable, to the payment to the Collateral Manager of all due and unpaid Subordinated Collateral Management Fees that have not been waived or deferred on prior Quarterly Payment Dates (provided that (i) no waived or deferred Subordinated Collateral Management Fees shall be payable pursuant to this clause (F) and (ii) the amount paid under this clause (F) shall not exceed the accrued Subordinated Collateral Management Fees for one Due Period);
(G) to the payment of amounts described in clause (AA)(2) above to the extent not paid thereunder (without regard to any cap or limitation);
(G) to the payment of any interest payable at the Post-Default Rate;
(H) to the payment of any Lender’s Increased Costs;
amounts described in clauses (IB) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium;
(J) to the payment to the Services Provider (or its designee) of any previously deferred Senior Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(K) unless deferred by the Services Provider (or its designee), to the payment to the Services Provider (or its designee) of (1) all due and unpaid Subordinated Services Fees that have not been deferred on prior Quarterly Payment Dates and (2F) any previously deferred Subordinated Services Fees that the Services Provider elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(L) if the Borrower is party to any Interest Hedge Agreements, to any amounts owing by the Borrower to the Interest Hedge Counterparties under such Interest Hedge Agreements above to the extent not paid under clause (B) above thereunder (without regard to any cap or limitation);; and
(MI) all remaining Interest Proceeds:
(1) during the Reinvestment Period, at the sole discretion of the Services ProviderCollateral Manager, either (i) to the Borrower for payment as directed by the Borrower, including as to make a distribution to the Parent; (ii) to the Collection Account to be applied as Principal Proceeds for the purchase of additional Collateral LoansObligations, (iiiii) to be applied to prepay the principal of the Senior Loans pursuant to Section 2.7, and/or (iviii) for deposit into the Future Funding Reserve AccountAccount and/or (iv) solely if neither row 1 nor row 2 of the Collateral Quality Matrix is the Applicable Row Level then selected by the Collateral Manager, to the equity of the Borrower; and
(2) after the Reinvestment Period, to at the Borrower or for payment as directed by sole discretion of the BorrowerCollateral Manager, either to (i) make a distribution to the Parent; or (ii) be applied to prepay the principal of the Senior Loans pursuant to Section 2.72.7 or (ii) to the equity of the Borrower.
(ii) On each Quarterly Payment Date, following the distribution of all Interest Proceeds as set forth in Section 9.1(a)(i) above, Principal Proceeds (other than Principal Proceeds previously reinvested in Collateral Loans Obligations or otherwise designated by the Borrower for application pursuant to the parenthetical contained in Section 8.2(a)(ii) or otherwise to provide for any Unsettled Amount8.2(a)(i)) shall be applied as follows; provided that that, after giving effect to any such payment payment, no Commitment Shortfall would exist (and, to the extent that any Commitment Shortfall would exist, Principal Proceeds shall first be deposited in the Future Funding Reserve Account in the amount needed to eliminate such Commitment Shortfall):
(A) to the payment of unpaid amounts in items (A) through (CD) in Section 9.1(a)(i) above (in such order of priority stated thereinpriority);
(B) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any interest payable at the Post-Default Rate);
(C) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if an Event of Default or a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied or, with respect to an Event of Default, the Loans are paid in full;
(D) to the payment of any interest payable at the Post-Default Rate;
(E) during the Reinvestment Period, all remaining Principal Proceeds mayProceeds, at the sole discretion of the Services ProviderCollateral Manager:
(1) be deposited into to the Collection Account for the purchase of additional Collateral Loans;Obligations; and/or
(2) to be applied to prepay the principal of the Senior Loans pursuant to Section 2.7; and/or
(3) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium; provided that, the Lender Advance Rate Test shall be satisfied immediately after giving effect to such payment;
(4) be deposited into the Future Funding Reserve Account; and;
(5C) so long as no Default or Event after the Reinvestment Period, to be applied to the payment of Default has occurred and is continuing or would resultprincipal on the Senior Loans (ratably in proportion to the Senior Lenders’ respective Percentage Shares) until repaid in full;
(D) after the Reinvestment Period, to be used applied to make a Permitted Parent Distribution.the payment of the Senior Additional Interest Amounts (ratably in proportion to the Senior Lenders’ respective Percentage Shares);
(E) after the Reinvestment Period, to be applied to the payment of the Senior Additional Payment Amounts (ratably in proportion to the Senior Lenders’ respective Percentage Shares);
(F) after the Reinvestment Period,
(1) first, to be applied to the payment of interest, principal, Commitment Fees and other obligations on the Loans until repaid in full;
(2) second, to the payment of amounts referred to in items clause (EF) through of subsection (Ji) above, but only to the extent not paid in Section 9.1(a)(ifull thereunder;
(G) after the Reinvestment Period, to the payment of amounts referred to in clause (G) of subsection (i) above, in the priority set forth therein but only to the extent not paid in full thereunder;
(H) after the Reinvestment Period, to the payment of amounts referred to in clause (H) of subsection (i) above, but only to the extent not paid in full thereunder; and
(3I) thirdafter the Reinvestment Period, to the Borrower or for payment as directed by equity of the Borrower, including to make a distribution to the Parent.
(b) If on any Quarterly Payment Date the amount available in the Payment Account from amounts received in the related Due Period is insufficient to make the full amount of the disbursements required pursuant to any clause in the Priority of Payments, the Collateral Agent shall make the disbursements called for in the order and according to the priority set forth under Section 9.1(a) and ratably or in the order provided within the applicable a clause, as applicable, in accordance with the respective amounts owing under any such clause, clause to the extent funds are available therefor.
(c) On each Quarterly Payment Date, the Collateral Administrator (on behalf of the Borrower) shall deliver to the Administrative Agent, the Collateral Agent, the Services Provider and S&P (so long as S&P is rating the Loans) Facility Agent a report (the “Payment Date Report”) containing the information described in Exhibit E hereto pursuant to Section 8.9 specifying the amount of Interest Proceeds (and, of such amount, the amount of Fee Proceeds) and Principal Xxxxxxxx Proceeds received during the preceding Due Period and Period, the amounts to be applied to each purpose set forth in Section 9.1(a), and a calculation of the Net Aggregate Uncovered Amount (which shall be determined based on information provided by the Borrower to the Collateral Administrator including any Revolving Collateral Obligations and Delayed Funding Obligations and the unpaid purchase price of all Collateral Obligations that the Borrower entered into binding commitments before the end of the Reinvestment Period to originate or purchase after the end of the Reinvestment Period). The information in each Payment Date Report shall be determined as of the Calculation Date immediately preceding the applicable Quarterly Payment Date. For the avoidance of doubt, in any month in which a Quarterly Payment Date occurs, the Collateral Report and the Payment Date Report may be combined into a single report.
(d) In the event that the Services Provider obtains actual knowledge of or receives written notice that any Interest Hedge Counterparty defaults in the payment of its obligations All amounts to be paid to the Borrower under any Interest Hedge Agreement on the payment date therefor, the Services Provider this Section 9.1 shall notify be paid to such account as the Borrower which shall (or may designate and upon such payment will be released from the Services Provider on behalf lien of the Borrower shall) make a demand on such Interest Hedge Counterparty, or any guarantor, if applicable, demanding payment by 12:00 noon, New York time, on the next Business Day. The Services Provider shall give notice to the Lenders, the Administrative Agent, S&P, the Borrower and the Collateral Agent upon the continuing failure by such Interest Hedge Counterparty (or applicable guarantor) to perform its obligations for one Business Day following a demand made by the Borrower (or the Services Provider on behalf of the Borrower) on such Interest Hedge Counterpartythis Agreement.
Appears in 1 contract
Samples: Credit Agreement (AB Private Credit Investors Corp)
Disbursements of Funds from Payment Account. (a) Notwithstanding any other provision of this Agreement other than Section 6.4, but subject to the other subsections of this Section 9.1 and Article II (with respect to optional repayment of Loans), on each Quarterly Payment Date, the Collateral Agent shall disburse amounts transferred to the Payment Account from the Collection Account pursuant to Section 8.2(h8.2(e) as follows and for application in accordance with the following priorities (the “"Priority of Payments”"):
(i) On each Quarterly Payment Date, prior to the distribution of any Principal Proceeds, Interest Proceeds shall be applied as follows:
(A) to the payment of the following amounts in the following priority (without duplication): (1) Taxes taxes (but not including any accrued and unpaid Increased Costs, which are addressed solely by Sections 9.1(a)(i)(G) and 9.1(a)(ii)(D)), registration and filing fees then due and owing by the Borrower, ;
(2B) to the payment of the following amounts in the following priority (without duplication):
(1) accrued and unpaid Administrative Expenses in the order set forth in the definition thereof and thereof; and
(32) on any Quarterly Payment Date other than the final Quarterly Payment Date, to the retention in the Collection Account of an amount equal to the Retained Expense Amount for such Quarterly Payment Date; provided that the aggregate amount of payments under this clause (A)(2) and (3B) shall not exceed on any Quarterly Payment Date the sum of (a) the Quarterly Cap plus (b) the Retained Expense Amount determined on the immediately prior Quarterly Payment Date less (c) Administrative Expenses paid pursuant to Section 8.2(g8.2(d) during the Due Period relating to such Quarterly Payment Date;
(BC) if the Borrower is party to any Interest Hedge Agreements, to the payment of any amounts owing by the Borrower to the Interest Hedge Counterparties thereunder (exclusive of any early termination or liquidation payment owing by the Borrower by reason of the occurrence of an event of default or termination event thereunder with respect to such Interest Hedge Counterparty where such Interest Hedge Counterparty is the sole affected party or the defaulting party);
(CD) unless waived or deferred by the Services Provider Collateral Manager (or its designee), which waiver (but not deferral) shall be permanent and irrevocable, to the payment to the Services Provider Collateral Manager (or its designee) of all due and unpaid Senior Services Management Fees that have not been deferred on prior Quarterly Payment DatesDates (provided that, for the avoidance of doubt, no deferred Collateral Management Fees shall be payable pursuant to this clause (D));
(DE) to the Lenders for payment (on a pro rata basis) of accrued interest on the Loans and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding in the case of interest, any interest payable at the Post-Default RateCapped Amounts);
(EF) if any of the Coverage Tests are is not satisfied as of the related Calculation Date or if a Market Trigger has occurred and is continuingDate, (1) to the prepayment repayment of principal of the Loans Loans, or (to be allocated to 2) only if the outstanding principal amount of the Loans according equals zero (both before and after giving effect to any payment made pursuant to clause (1)), to deposit in the Principal Allocation Formula) until Future Funding Reserve Account, in each case in the amount necessary to result in the satisfaction of the Coverage Tests (on a pro forma basis as of such tests are satisfiedCalculation Date);
(FG) to the applicable Lenders on a pro rata basis for payment of accrued and unpaid Increased Costs;
(H) to the payment of amounts described in clause (AB) above to the extent not paid thereunder (without regard to any cap or limitation);
(GI) to the payment of any interest payable at the Post-Default Rate;
amounts described in clause (HE) above to the payment of any Lender’s Increased Costs;
extent not paid thereunder (I) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal without regard to any accrued and unpaid Prepayment Make-Whole Premiumcap or limitation);
(J) to the payment to the Services Provider Collateral Manager (or its designee) of any previously deferred Senior Services Management Fees that the Services Provider Collateral Manager elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(K) unless waived or deferred by the Services Provider Collateral Manager (or its designee), which waiver (but not deferral) shall be permanent and irrevocable, to the payment to the Services Provider Collateral Manager (or its designee) of (1) all due and unpaid Subordinated Services Management Fees that have not been deferred on prior Quarterly Payment Dates and (2) any previously deferred Subordinated Services Management Fees that the Services Provider Collateral Manager elects to be paid on such Quarterly Payment Date by notice to the Collateral Agent prior to the related Calculation Date;
(L) if the Borrower is party to any Interest Hedge Agreements, to any amounts owing by the Borrower to the Interest Hedge Counterparties under such Interest Hedge Agreements to the extent not paid under clause (BC) above (without regard to any cap or limitation)above;
(M) all remaining Interest Proceeds:
(1) during the Reinvestment Period, at the sole discretion of the Services ProviderCollateral Manager, either (i) to the Borrower for payment as directed by the Borrower, including as to make a distribution to the Parent; (ii) to the Collection Account to be applied as Principal Proceeds for the purchase of additional Collateral Loans, (iiiii) to be applied to prepay the principal of the Loans pursuant to Section 2.7, and/or (iviii) for deposit into the Future Funding Reserve AccountAccount and/or (iv) to the equity of the Borrower; and
(2) after the Reinvestment Period, to at the Borrower or for payment as directed by sole discretion of the Borrower, either to (i) make a distribution to the Parent; or (ii) be applied to prepay the principal of the Loans pursuant to Section 2.72.7 or (ii) to the equity of the Borrower.
(ii) On each Quarterly Payment Date, following the distribution of all Interest Proceeds as set forth in Section 9.1(a)(i) above, Principal Proceeds (other than Principal Proceeds previously reinvested in Collateral Loans or otherwise designated by the Borrower for application pursuant to the parenthetical contained in Section 8.2(a)(ii) or otherwise to provide for any Unsettled Amount)) shall be applied as follows; , provided that after giving effect to any such payment no Commitment Shortfall would exist (and, to the extent that any Commitment Shortfall would exist, Principal Proceeds shall first be deposited in the Future Funding Reserve Account in the amount needed to eliminate such Commitment Shortfall):
(A) to the payment of unpaid the amounts referred to in items clauses (A) through (CF) in Section 9.1(a)(iof subsection (i) above (in such order of the priority stated therein), but only to the extent not paid in full thereunder;
(B) to the Lenders for payment (on a pro rata basis) of accrued interest and Commitment Fees (ratably in proportion to their respective Percentage Shares) on the Loans due on such Quarterly Payment Date (excluding any interest payable at the Post-Default Rate);
(C) if any of the Coverage Tests are not satisfied as of the related Calculation Date or if an Event of Default or a Market Trigger has occurred and is continuing, to the prepayment of principal of the Loans (to be allocated to the Loans according to the Principal Allocation Formula) until such tests are satisfied or, with respect to an Event of Default, the Loans are paid in full;
(D) to the payment of any interest payable at the Post-Default Rate;
(E) during the Reinvestment Period, all remaining Principal Proceeds mayProceeds, at the sole discretion of the Services ProviderCollateral Manager:
(1) be deposited into to the Collection Account for the purchase of additional Collateral Loans;; and/or
(2) to be applied to prepay the principal of the Loans pursuant to Section 2.7; and/or
(3) prior to and including the end of the Non-Call Period, to the Administrative Agent for distribution to the Lenders, in an amount equal to any accrued and unpaid Prepayment Make-Whole Premium; provided that, the Lender Advance Rate Test shall be satisfied immediately after giving effect to such payment;
(4) be deposited into the Future Funding Reserve Account; and;
(5) so long as no Default or Event of Default has occurred and is continuing or would result, be used to make a Permitted Parent Distribution.
(FC) after the Reinvestment Period,
(1) first, to be applied to the payment of interest, principal, Commitment Fees and other obligations principal on the Loans until repaid in full;
(2D) secondto the payment of the amounts referred to in clause (G) of subsection (i) above, but only to the extent not paid in full thereunder;
(E) after the Reinvestment Period, to the payment of amounts referred to in items clauses (EH) through (JL) in Section 9.1(a)(iof subsection (i) above, in the priority set forth therein but only to the extent not paid in full thereunder; and
(3F) thirdafter the Reinvestment Period, to the Borrower or for payment as directed by equity of the Borrower, including to make a distribution to the Parent.
(b) If on any Quarterly Payment Date the amount available in the Payment Account from amounts received in the related Due Period is insufficient to make the full amount of the disbursements required pursuant to any clause in the Priority of Payments, the Collateral Agent shall make the disbursements called for in the order and according to the priority set forth under Section 9.1(a) and ratably or in the order provided within the applicable a clause, as applicable, in accordance with the respective amounts owing under any such clause, clause to the extent funds are available therefor.
(c) On each Quarterly Payment Date, the Collateral Administrator Agent (on behalf of the Borrower) shall deliver to the Administrative Agent, the Collateral Agent, the Services Provider Agent and S&P to DBRS (so long as S&P DBRS is rating the Loans) a report (the “"Payment Date Report”") containing the information described in Exhibit E F hereto pursuant to Section 8.9 specifying the amount of Interest Proceeds (and, of such amount, the amount of Fee Proceeds) and Principal Xxxxxxxx Proceeds received during the preceding Due Period and Period, the amounts to be applied to each purpose set forth in Section 9.1(a), and a calculation of the Net Aggregate Exposure Amount (which shall be determined based on information provided by the Borrower to the Collateral Agent including any Revolving Collateral Loans and Delayed Funding Loans and the unpaid purchase price of all Collateral Loans that the Borrower entered into binding commitments before the end of the Reinvestment Period to originate or purchase after the end of the Reinvestment Period). The information in each Payment Date Report shall be determined as of the Calculation Date immediately preceding the applicable Quarterly Payment Date. For the avoidance of doubt, in any month in which a Quarterly Payment Date occurs, the Collateral Report and the Payment Date Report may be combined into a single report.
(d) In the event that the Services Provider Collateral Agent obtains actual knowledge of or receives written notice that any Interest Hedge Counterparty defaults in the payment of its obligations to the Borrower under any Interest Hedge Agreement on the payment date therefor, the Services Provider Collateral Agent shall notify the Borrower which shall (or the Services Provider Collateral Agent on behalf of the Borrower shall) make a demand on such Interest Hedge Counterparty, or any guarantor, if applicable, demanding payment by 12:00 noon, New York time, on the next Business Day. The Services Provider Collateral Agent shall give notice to the Lenders, the Administrative Agent, S&P, the Borrower and the Collateral Agent Manager upon the continuing failure by such Interest Hedge Counterparty (or applicable guarantor) to perform its obligations for one Business Day following a demand made by the Borrower (or the Services Provider Collateral Manager on behalf of the Borrower) on such Interest Hedge Counterparty.
(e) All amounts to be paid to the Borrower under this Section 9.1 shall be paid to such account as the Borrower may designate and upon such payment will be released from the lien of this Agreement.
(f) Notwithstanding any other provision in this Agreement but subject to Section 6.4, the Collateral Agent shall disburse amounts on deposit in the Collection Account representing Principal Proceeds to the equityholders of the Borrower on any day during the Reinvestment Period occurring after the Ramp-Up Period at the written direction of the Borrower (accompanied by the certification of the Collateral Manager referred to in clause (B) below), so long as, (A) on a pro forma basis after giving effect to such distribution, (i) each Collateral Quality Test is satisfied, (ii) the Portfolio Advance Rate is less than or equal to the Maximum Advance Rate, (iii) each Coverage Test is satisfied and has continuously been satisfied historically, (iv) no Commitment Shortfall exists, (v) no Default or Event of Default has occurred and is continuing, (vi) the MV Overcollateralization Ratio Test is satisfied and (vii) the cumulative amount of distributions pursuant to this clause will not, at any time, exceed 20% of the Borrower's contributed equity capital, as measured on the Business Day immediately preceding the day the first distribution is made pursuant to this clause (such amount, the "Primary Limitation Amount"), provided that, on any Business Day that (x) the cumulative amount of equity capital subsequently contributed to the Borrower since the date of the first distribution pursuant to this clause (f) equals or exceeds the Primary Limitation Amount and (y) the Borrower directs the Collateral Agent to disburse amounts pursuant to this clause (f), such limitation amount in respect of this subclause (vii) will be reset to equal 20% of the Borrower's contributed equity capital as measured on the Business Day immediately preceding the date of such distribution; provided further that the Borrower may only reset the Primary Limitation Amount once, and (B) the Collateral Manager shall have provided the Administrative Agent and the Collateral Agent with a certificate demonstrating compliance with each requirement set forth in the foregoing clauses (A)(i) through (vii).
Appears in 1 contract
Samples: Credit Agreement (Fifth Street Senior Floating Rate Corp.)
