Disbursements of Monies. (a) Notwithstanding any other provision in this Agreement, but subject to the other subsections of this Section 9.01, on each Payment Date, the Borrower shall disburse Collections received during the previous Collection Period in accordance with the following priorities (the “Priority of Payments”) and the related Monthly Report: (i) first, (1) to the Account Bank, the related Account Bank Fee, plus any such fees not paid to the Account Bank when due on any prior Payment Date, plus any expense, indemnity or other amounts owing by the Borrower to the Account Bank under the Facility Documents (including any wire transfer fees or other banking fees owing to the Account Bank), each to the extent accrued and unpaid through the last day of the related Collection Period until such accrued fees, expenses, indemnities and other amounts are paid in full; provided, however, that the aggregate amount of expenses, indemnities and other amounts (excluding the Account Bank Fee) payable under this clause (1) shall not exceed $25,000 in any calendar year; provided, further, that after the occurrence and during the continuance of an Event of Default, such cap shall not apply and then (2) pro rata to the Servicer and the Backup Servicer, the Servicing Fee (but excluding any Successor Servicing Excess Servicing Fee or Successor Servicing Transition Fee) and Backup Servicing Fee, plus any such fees not paid to the Servicer or the Backup Servicer when due on any prior Payment Date, plus any expense, indemnity, reimbursements and other amounts owing by the Borrower to either of such parties under the Facility Documents, respectively, each to the extent accrued and unpaid through the last day of the related Collection Period until such accrued fees, expenses, indemnities, reimbursements and other amounts are paid in full; provided, however, that the aggregate amount of expenses, indemnities and other amounts (excluding the Servicing Fee and the Backup Servicing Fee) payable under this clause (2) shall not exceed $100,000 for each of the Servicer and the Backup Servicer in any calendar year; (ii) second, to the Administrative Agent, for distribution to each Lender, (1) to pay first, any accrued and unpaid Interest payable on a prior Payment Date to the extent not paid in full on such prior Payment Date (including interest thereon at the rate used to calculate Interest for the previous Collection Period but excluding any Interest amounts attributable to the Amortization Margin, if applicable) and (2) second, Unused Fees due each such Lender, with such Interest paid first with respect to the Advances and then Unused Fees; (iii) third, to the Administrative Agent, for distribution to each Lender, to pay, accrued and unpaid Interest on the Advances due to such Lender for the previous Collection Period; (iv) fourth, to the Administrative Agent, for distribution to each Lender, on a pro rata basis, (1) prior to the occurrence and continuance of an Event of Default or an Early Amortization Event and prior to the end of the Revolving Period, if the Borrowing Base Test is not satisfied as of the later of (x) the most recent Determination Date and (y) the Borrowing Base Calculation Date employed in the determination of a Borrowing Base Certificate delivered to the Administrative Agent in conjunction with a Borrowing Date, to pay the principal of the Advances of each Lender (pro rata, based on each Lender’s Percentage) until the Borrowing Base Test is satisfied (on a pro forma basis as at the most recent Determination Date or such Borrowing Base Calculation Date, as applicable), and (2) at any time following the end of the Revolving Period (regardless of the cause of the end of the Revolving Period and regardless of whether an Event of Default or an Early Amortization Event has occurred and is continuing) and during the continuance of an Event of Default or an Early Amortization Event, to pay the Advances of each Lender (pro rata, based on each Lender’s Percentage) until paid in full; (v) fifth, to the Administrative Agent, for distribution to each Lender, any Interest amounts attributable to the Amortization Margin, if any, accrued and unpaid and not otherwise paid pursuant to clause (ii) above; (vi) sixth, for deposit into the Reserve Account until the amounts on deposit therein are equal to the Reserve Account Required Amount; (vii) seventh, to pay, (A) to the Administrative Agent, for distribution to each Lender, any Interest due and owing pursuant to this Agreement (including any accrued and unpaid Interest payable on a prior Payment Date (and interest thereon) to the extent not paid in full on such prior Payment Date) and any accrued and unpaid fees and expenses of the Administrative Agent in connection with this Agreement and the other Facility Documents and (B) second, on a pro rata basis, accrued and unpaid amounts owing to Affected Persons (if any) under Sections 2.09 and 11.03, and all other fees, expenses or indemnities owed to the Secured Parties or Indemnified Parties (including, following the expiration of the Revolving Period, any Interest accrued at the Amortization Margin); (viii) eighth, on a pro rata basis, based on amounts payable to each party pursuant to this clause (viii), to the Account Bank, the Servicer and the Backup Servicer, any amounts due and payable to each such party which are in excess of any applicable cap on such amounts described in clause (i) (including, with respect to any successor Servicer, any Successor Servicing Excess Servicing Fee or Successor Servicing Transition Fee); and (ix) ninth, (i) if no Unmatured Event of Default has occurred and is continuing, the remainder to or at the direction of the Borrower and (ii) otherwise, to the Collection Account. (b) If on any Payment Date the amount available in the Collection Account is insufficient to pay all amounts which are due and owing and which are to be paid pursuant to clauses (i) through (iii) of Section 9.01(a), amounts on deposit in the Reserve Account may be transferred to the Collection Account to meet any shortfall and shall be disbursed in the order and according to the priority set forth under Section 9.01(a) to the extent funds are available therefor.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (Compass, Inc.), Revolving Credit and Security Agreement (Compass, Inc.)
Disbursements of Monies. (a) Notwithstanding any other provision in this Agreement, but subject to the other subsections of this Section 9.01, on each Payment Date, the Borrower Collateral Agent, based on the Payment Date Report, shall disburse Collections received during the previous Collection Period Distribution Amounts in accordance with the following priorities (the “Priority of Payments”) and the related Monthly Report:). 158
(i) first, (1) to the Account Bank, the related Account Bank Fee, plus any such fees not paid to the Account Bank when due on any prior Payment Date, plus any expense, indemnity or other amounts owing by the Borrower to the Account Bank under the Facility Documents (including any wire transfer fees or other banking fees owing to the Account Bank), each to the extent accrued and unpaid through the last day of the related Collection Period until such accrued fees, expenses, indemnities and other amounts are paid in full; provided, however, that the aggregate amount of expenses, indemnities and other amounts (excluding the Account Bank Fee) payable under this clause (1) shall not exceed $25,000 in any calendar year; provided, further, that after the occurrence and during the continuance of an Event of Default, such cap shall not apply and then (2) pro rata to the Servicer and the Backup Servicer, the Servicing Fee (but excluding any Successor Servicing Excess Servicing Fee or Successor Servicing Transition Fee) and Backup Servicing Fee, plus any such fees not paid to the Servicer or the Backup Servicer when due on any prior Payment Date, plus any expense, indemnity, reimbursements and other amounts owing by the Borrower to either of such parties under the Facility Documents, respectively, each to the extent accrued and unpaid through the last day of the related Collection Period until such accrued fees, expenses, indemnities, reimbursements and other amounts are paid in full; provided, however, that the aggregate amount of expenses, indemnities and other amounts (excluding the Servicing Fee and the Backup Servicing Fee) payable under this clause (2) shall not exceed $100,000 for each of the Servicer and the Backup Servicer in any calendar year;
(ii) second, to the Administrative Agent, for distribution to each Lender, (1) to pay first, any accrued and unpaid Interest payable on a prior Payment Date to the extent not paid in full on such prior Payment Date (including interest thereon at the rate used to calculate Interest for the previous Collection Period but excluding any Interest amounts attributable to the Amortization Margin, if applicable) and (2) second, Unused Fees due each such Lender, with such Interest paid first with respect to the Advances and then Unused Fees;
(iii) third, to the Administrative Agent, for distribution to each Lender, to pay, accrued and unpaid Interest on the Advances due to such Lender for the previous Collection Period;
(iv) fourth, to the Administrative Agent, for distribution to each Lender, on a pro rata basis, (1) prior to the occurrence and continuance of an Event of Default or an Early Amortization Event and prior to the end of During the Revolving Period, if on each Payment Date other than during the Borrowing Base Test is not satisfied as of the later of (x) the most recent Determination Date occurrence and (y) the Borrowing Base Calculation Date employed in the determination continuation of a Borrowing Base Certificate delivered to the Administrative Agent in conjunction with a Borrowing DateDefault, to pay the principal of the Advances of each Lender (pro rata, based on each Lender’s Percentage) until the Borrowing Base Test is satisfied (on a pro forma basis as at the most recent Determination Date or such Borrowing Base Calculation Date, as applicable), and (2) at any time following the end of the Revolving Period (regardless of the cause of the end of the Revolving Period and regardless of whether an Event of Default or an Early Amortization Event has occurred and is continuing) and during the continuance of an Event of Default or an Early Amortization Event, to pay Interest Proceeds on deposit in the Advances of each Lender (pro rata, based Interest Collection Account and Principal Proceeds on each Lender’s Percentage) until paid deposit in full;
(v) fifththe Principal Collection Account, to the Administrative Agentextent received by the Custodian on or before the related Determination Date (or, for distribution if such Determination Date is not a Business Day, the next succeeding Business Day) that constitute Distribution Amounts, shall be applied in the following order of priority (the “Revolving Period Priority of Payments”):
(A) to each Lenderpay taxes, any Interest amounts attributable to the Amortization Marginregistration, registered office and filing fees, if any, of the Borrower;
(B) first, to the payment of accrued and unpaid Administrative Expenses in the order described in the definition thereof and; provided, however, that payments and not otherwise paid deposits pursuant to clause this subclause (iiB) aboveshall only be made to the extent that the total of payments and deposits shall not exceed, on any Payment Date, the Administrative Expenses Cap;
(vi) sixth, for deposit into the Reserve Account until the amounts on deposit therein are equal to the Reserve Account Required Amount;
(vii) seventh, to pay, (AC) to the Administrative Agent, for distribution to each Lender, any Interest payment of amounts due and owing pursuant to this payable under each Eligible Hedge Agreement (including any accrued and unpaid Interest payable on a prior Payment Date (and interest thereon) to the extent not paid in full on such prior Payment Date) and any accrued and unpaid fees and expenses of the Administrative Agent in connection with this Agreement and the other Facility Documents and (B) second, on a pro rata basis, accrued and unpaid amounts owing to Affected Persons (if any) under Sections 2.09 entered into by the Borrower (excluding any costs of termination of such Eligible Hedge Agreement and 11.03, and all other fees, expenses or indemnities owed to the Secured Parties or Indemnified Parties (including, following the expiration of the Revolving Period, any Interest accrued at the Amortization Margin);
(viii) eighth, on a pro rata basis, based on amounts payable to each party pursuant to this clause (viii), to the Account Bank, the Servicer and the Backup Servicer, any amounts due and payable to each such party which are in excess of any applicable cap on such amounts described in clause (i) (including, with respect to any successor Servicer, any Successor Servicing Excess Servicing Fee or Successor Servicing Transition Fee); and
(ix) ninth, (i) if no Unmatured Event of Default has occurred and is continuing, the remainder to or at the direction of the Borrower and (ii) otherwise, to the Collection Account.
(b) If on any Payment Date the amount available in the Collection Account is insufficient to pay all amounts which are due and owing and which are required to be paid pursuant to clauses upon termination of such Eligible Hedge Agreement if such termination is caused in each case by (i1) through (iii) an event of Section 9.01(a), amounts on deposit in default under such Eligible Hedge Agreement for which the Reserve Account may be transferred to Eligible Hedge Counterparty is the Collection Account to meet any shortfall and shall be disbursed in the order and according to the priority set forth under Section 9.01(a) to the extent funds are available therefor.defaulting party or 159
Appears in 1 contract
Samples: Credit and Security Agreement (TCW Direct Lending VIII LLC)
Disbursements of Monies. (a) Notwithstanding any other provision in this Agreement, but subject to the other subsections of this Section 9.01, on On each Payment Date, the Borrower Servicer on behalf of the Issuer shall direct the Intermediary to disburse Collections received during funds from the previous APH 1-3 Master Collection Period Account (it being understood that only cash shall be applied pursuant to this Section 11.1), in accordance with the following priorities (collectively, the “Priority of Payments”) and as set forth on the related Monthly Payment Date Report:
(ia) firstOn each Interest Payment Date and the Stated Maturity, the Servicer shall cause such amounts held in the APH 1-3 Master Collection Account to be applied as follows:
(1) to the Account Bank, the related Account Bank Fee, plus any such fees not paid to the Account Bank when due on any prior Payment Date, plus any expense, indemnity or other amounts owing by the Borrower to the Account Bank under the Facility Documents (including any wire transfer fees or other banking fees owing to the Account Bank), each to the extent accrued and unpaid through the last day payment of taxes of the related Collection Period until such accrued fees, expenses, indemnities and other amounts are paid in full; provided, however, that the aggregate amount of expenses, indemnities and other amounts (excluding the Account Bank Fee) payable under this clause (1) shall not exceed $25,000 in any calendar year; provided, further, that after the occurrence and during the continuance of an Event of Default, such cap shall not apply and then (2) pro rata to the Servicer and the Backup Servicer, the Servicing Fee (but excluding any Successor Servicing Excess Servicing Fee or Successor Servicing Transition Fee) and Backup Servicing Fee, plus any such fees not paid to the Servicer or the Backup Servicer when due on any prior Payment Date, plus any expense, indemnity, reimbursements and other amounts owing by the Borrower to either of such parties under the Facility Documents, respectively, each to the extent accrued and unpaid through the last day of the related Collection Period until such accrued fees, expenses, indemnities, reimbursements and other amounts are paid in full; provided, however, that the aggregate amount of expenses, indemnities and other amounts (excluding the Servicing Fee and the Backup Servicing Fee) payable under this clause (2) shall not exceed $100,000 for each of the Servicer and the Backup Servicer in any calendar year;
(ii) second, to the Administrative Agent, for distribution to each Lender, (1) to pay first, any accrued and unpaid Interest payable on a prior Payment Date to the extent not paid in full on such prior Payment Date (including interest thereon at the rate used to calculate Interest for the previous Collection Period but excluding any Interest amounts attributable to the Amortization Margin, if applicable) and (2) second, Unused Fees due each such Lender, with such Interest paid first with respect to the Advances and then Unused Fees;
(iii) third, to the Administrative Agent, for distribution to each Lender, to pay, accrued and unpaid Interest on the Advances due to such Lender for the previous Collection Period;
(iv) fourth, to the Administrative Agent, for distribution to each Lender, on a pro rata basis, (1) prior to the occurrence and continuance of an Event of Default or an Early Amortization Event and prior to the end of the Revolving Period, if the Borrowing Base Test is not satisfied as of the later of (x) the most recent Determination Date and (y) the Borrowing Base Calculation Date employed in the determination of a Borrowing Base Certificate delivered to the Administrative Agent in conjunction with a Borrowing Date, to pay the principal of the Advances of each Lender (pro rata, based on each Lender’s Percentage) until the Borrowing Base Test is satisfied (on a pro forma basis as at the most recent Determination Date or such Borrowing Base Calculation Date, as applicable), and (2) at any time following the end of the Revolving Period (regardless of the cause of the end of the Revolving Period and regardless of whether an Event of Default or an Early Amortization Event has occurred and is continuing) and during the continuance of an Event of Default or an Early Amortization Event, to pay the Advances of each Lender (pro rata, based on each Lender’s Percentage) until paid in full;
(v) fifth, to the Administrative Agent, for distribution to each Lender, any Interest amounts attributable to the Amortization MarginObligors, if any, and any governmental fees;
(2) ratably, to the payment of (i) the Trustee Fee and (ii) accrued and unpaid and not otherwise paid Administrative Expenses as of such Interest Payment Date, provided that total payments pursuant to clause this subclause (ii2)(ii) above;
(vi) sixth, for deposit into the Reserve Account until the amounts on deposit therein are equal with respect to the Reserve Account Required Amount;
(vii) seventh, to pay, (A) to any Person other than the Administrative Agent, for distribution to each Lender, any Interest due and owing pursuant to this Agreement Trustee shall not exceed the amount set forth in clause (including any accrued and unpaid Interest payable on a prior Payment Date (and interest thereona) to the extent not paid in full on such prior Payment Date) and any accrued and unpaid fees and expenses of the definition of Administrative Agent in connection with this Agreement and the other Facility Documents Expense Cap and (B) second, on a pro rata basis, accrued and unpaid amounts owing to Affected Persons (if any) under Sections 2.09 and 11.03, and all other fees, expenses or indemnities owed to the Secured Parties or Indemnified Parties (including, following Trustee shall not exceed the expiration of the Revolving Period, any Interest accrued at the Amortization Margin);
(viii) eighth, on a pro rata basis, based on amounts payable to each party pursuant to this clause (viii), to the Account Bank, the Servicer and the Backup Servicer, any amounts due and payable to each such party which are in excess of any applicable cap on such amounts described amount set forth in clause (ib) (including, with respect to any successor Servicer, any Successor Servicing Excess Servicing Fee or Successor Servicing Transition Fee); and
(ix) ninth, (i) if no Unmatured of the definition of Administrative Expense Cap unless an Event of Default has occurred and is continuing;
(3) to the payment to the Servicer of the current Servicing Fee in accordance with the terms of the Servicing Agreement, to the extent not waived by the Servicer;
(4) to the Notes Payment Account for payment of accrued and unpaid interest (excluding any Additional Interest) on the Notes;
(5) to transfer to the Interest Reserve Account, the remainder amount necessary to cause the aggregate amount held therein to equal the Interest Reserve Amount at such time;
(6) (A) if none of an Event of Default, a Rapid Amortization Event or a Full Cash Trap Event has occurred and is continuing; first, to the payment of any accrued and unpaid Administrative Expenses to the extent not paid pursuant to subclause (2) above, second,
(I) if no Partial Cash Trap Event has occurred and is continuing, to the Issuer to make a distribution to APH Funding 1, LLC, provided that if and to the extent a Rapid Amortization Asset Coverage Event has occurred and is continuing, then (x) first, [***]% of available amounts to be applied under this clause (I) shall be applied to the Notes Payment Account for the payment of the principal of the Notes until such time as the Notes are Paid in Full (excluding Additional Interest) or the Rapid Amortization Asset Coverage Event is cured, and (y) second, the balance of available amounts shall be paid to the Issuer for distribution to APH Funding 1, LLC or in repayment of Subordinated Obligations, provided, further that if either (i) an Asset Coverage Event has occurred on the applicable Determination Date or would occur after giving effect to such distributions or (ii) an Exclusion Event has occurred and is continuing, the amount to be applied to APH Funding 1, LLC under this clause (I) shall not exceed the Current Purchase Amount and any additional amounts remaining in the Notes Payment Account after such application shall be credited to the Principal Reserve Account, or
(II) if a Partial Cash Trap Event has occurred and is continuing, then (x) [***]% of available amounts first, to the credit of the Principal Reserve Account (or, at the direction election of the Borrower Servicer, to the Notes Payment Account for payment of the principal of the Notes) until Paid in Full, and second, to the Issuer for distribution to APH Funding 1, LLC or in repayment of Subordinated Obligations, and (y) [***]% of available amounts to the Issuer for distribution to APH Funding 1, LLC or in repayment of Subordinated Obligations, provided that if and to the extent the Rapid Amortization Asset Coverage Event has occurred and is continuing, then (i) first, [***]% of available amounts to be applied under this clause (II)(y) to the Notes Payment Account for the payment of the principal of the Notes until such time as the Notes are Paid in Full (excluding Additional Interest) or the Rapid Amortization Asset Coverage Event is cured and (ii) otherwisesecond, the balance of available amounts shall be paid to the Collection Account.
Issuer for distribution to APH Funding 1, LLC or in repayment of Subordinated Obligations, provided, further that if either (b1) If an Asset Coverage Event has occurred on any Payment the applicable Determination Date or would occur after giving effect to such distributions or (2) an Exclusion Event has occurred and is continuing, the amount available in the Collection Account is insufficient to pay all amounts which are due and owing and which are to be paid pursuant applied under this clause (II)(y) (after giving effect to clauses clause (i) through (iiiof the first proviso above) of Section 9.01(a), shall not exceed the Current Purchase Amount and any additional amounts on deposit remaining in the Reserve Notes Payment Account may after such application shall be transferred credited to the Collection Account to meet any shortfall and shall be disbursed in the order and according to the priority set forth under Section 9.01(a) to the extent funds are available therefor.Principal Reserve Account; or
Appears in 1 contract
Disbursements of Monies. (a) Notwithstanding any other provision in this Agreement, but subject to the other subsections of this Section 9.01, on each Payment Date, based on the Servicer’s Monthly Payment Certificate, the Borrower (or the Servicer on its behalf) shall disburse Collections received during the previous Collection Period Available Funds in accordance with the following priorities (the “Priority of Payments”) and the related Monthly Report:
(i) first, on a pro rata basis (1) to the Account Bank, the related Account Bank Fee, plus any such accrued fees not paid to the Account Bank when due on any prior Payment Date, plus any expense, indemnity or other amounts owing by the Borrower to the Account Bank such party under the Facility Documents (including any wire transfer fees or other banking fees owing to the Account Bank), each to the extent accrued and unpaid through the last day of the related Collection Period until such accrued fees, expenses, indemnities and other amounts are paid in full; provided, however, that the aggregate amount of expenses, indemnities and other amounts (excluding the Account Bank Fee) payable under this clause (1) shall not exceed $25,000 75,000 in any calendar year; provided, provided further, that after the occurrence and during the continuance of an Event of Default, such cap shall not apply apply; and then (2) pro rata to the Servicer and the Backup Servicer, the Servicing Fee (but excluding any Successor Servicing Excess Servicing Fee or Successor Servicing Transition Fee) and Backup Servicing Servicer Fee, plus any such accrued fees not paid to the Servicer or the Backup Servicer when due on any prior Payment Date, plus any expense, indemnity, reimbursements indemnity and other amounts owing by the Borrower to either of such parties under the Facility Documents, respectively, each to the extent accrued and unpaid through the last day of the related Collection Period until such accrued fees, expenses, indemnities, reimbursements indemnities and other amounts are paid in full; provided, however, that the aggregate amount of expenses, indemnities and other amounts (excluding the Servicing Fee and the Backup Servicing Servicer Fee) payable under this clause (2) shall not exceed $100,000 for each of to the Servicer and the Backup Servicer shall not exceed $75,000 in the aggregate, in any calendar year;; provided further, that after the occurrence and during the continuance of an Event of Default, such cap shall not apply to any conversion fee paid to a successor Servicer.
(ii) second, to the Administrative Agent, for distribution to each Lender, (1) to pay first, any accrued and unpaid Interest payable on a prior Payment Date to the extent not paid in full on such prior Payment Date (including interest thereon at the rate used to calculate Interest for the previous Collection Period but excluding any Interest amounts attributable to the Amortization Margin, if applicable) and (2) second, Unused Fees due each such Lender, with such Interest paid first with respect to the Advances and then Unused Fees;
(iii) third, to the Administrative Agentapplicable Funding Agents, for distribution to each Lender, to paypay (A) first, accrued and unpaid Interest on the Advances due to such Lender for the previous Collection Period;and (B) second, Unused Fees and Additional Unused Fees due each such Lender; WEIL:\99621584\14\35899.0654
(iviii) fourththird, to the Administrative Agentapplicable Funding Agents, for distribution to each Lender, on a pro rata basis, (1) prior to the occurrence and continuance of an Event of Default or an Early Amortization Event and prior to the end of during the Revolving Period, if the Borrowing Base Test is not satisfied as of the later of (x) the most recent Determination Date and (y) the Borrowing Base Calculation Date employed in the determination of a Borrowing Base Certificate delivered to the Administrative Agent in conjunction with a Borrowing Date, to pay the principal of the Advances of to each Lender (pro rata, based on each Lender’s Percentageshare of the Aggregate Loan Amount) until the Borrowing Base Test is satisfied (on a pro forma basis as at the most recent Determination Date or such Borrowing Base Calculation Date, as applicable), and (2) at any time following the end of the Revolving Period (regardless of the cause of the end of the Revolving Period and regardless of whether an Event of Default or an Early Amortization Event has occurred and is continuing) and during the continuance of an Event of Default or an Early Amortization Eventother time, to pay the Advances of principal to each Lender (pro rata, based on each Lender’s Percentageshare of the Aggregate Loan Amount) until paid in full;
(viv) fifth, to the Administrative Agent, for distribution to each Lender, any Interest amounts attributable to the Amortization Margin, if any, accrued and unpaid and not otherwise paid pursuant to clause (ii) above;
(vi) sixth, for deposit into the Reserve Account until the amounts on deposit therein are equal to the Reserve Account Required Amount;
(vii) seventhfourth, to pay, (A) to the Administrative Agent, for distribution to each Lender, any Interest due and owing pursuant to this Agreement (including any accrued and unpaid Interest payable on a prior Payment Date (and interest thereon) to the extent not paid in full on such prior Payment Date) and any accrued and unpaid fees and expenses of the Administrative Agent in connection with this Agreement and the other Facility Documents and (B) second, on a pro rata basis, accrued and unpaid amounts owing to Affected Persons (if any) under Sections 2.09 2.08 and 11.03, and all other fees, expenses or indemnities owed to the Secured Parties or Indemnified Parties (including, following the expiration of the Revolving Period, any Interest accrued at the Amortization Margin)Parties;
(viiiv) eighthfifth, on a pro rata basis, based on amounts payable to each party pursuant to this clause (viiiv), to the Account Bank, the Servicer and the Backup Servicer, any amounts due and payable to each such party which are in excess of any applicable cap on such amounts described in clause (i) (including, with respect to any successor Servicer, any Successor Servicing Excess Servicing Fee or Successor Servicing Transition Fee); and
(ixvi) ninth, (i) if no Unmatured Event of Default has occurred and is continuingsixth, the remainder to or at the direction of the Borrower.
(a) If, on any Payment Date, the Borrower and (iior the Servicer on its behalf) otherwisefails to direct the Account Bank to withdraw funds from the Collection Account in accordance with the Monthly Report, the Administrative Agent may direct the Account Bank in writing to make the required distributions from the Collection Account.
(b) If on any Payment Date the amount available in the Collection Account is insufficient to pay all amounts which are due and owing and which are to be paid pursuant to clauses (i) through (iii) of Section 9.01(a), amounts on deposit in the Reserve Account may be transferred to the Collection Account to meet any shortfall and shall be disbursed in the order and according to the priority set forth under Section 9.01(a) to the extent funds are available therefor.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (ACV Auctions Inc.)
Disbursements of Monies. (a) Notwithstanding any other provision in this Agreement, but subject to the other subsections of this Section 9.01, on each Payment Date, the Borrower Collateral Agent, based on the Payment Date Report, shall disburse Collections received during the previous Collection Period Distribution Amounts in accordance with the following priorities (the “Priority of Payments”) and the related Monthly Report:).
(i) first, (1) to the Account Bank, the related Account Bank Fee, plus any such fees not paid to the Account Bank when due on any prior Payment Date, plus any expense, indemnity or other amounts owing by the Borrower to the Account Bank under the Facility Documents (including any wire transfer fees or other banking fees owing to the Account Bank), each to the extent accrued and unpaid through the last day of the related Collection Period until such accrued fees, expenses, indemnities and other amounts are paid in full; provided, however, that the aggregate amount of expenses, indemnities and other amounts (excluding the Account Bank Fee) payable under this clause (1) shall not exceed $25,000 in any calendar year; provided, further, that after the occurrence and during the continuance of an Event of Default, such cap shall not apply and then (2) pro rata to the Servicer and the Backup Servicer, the Servicing Fee (but excluding any Successor Servicing Excess Servicing Fee or Successor Servicing Transition Fee) and Backup Servicing Fee, plus any such fees not paid to the Servicer or the Backup Servicer when due on any prior Payment Date, plus any expense, indemnity, reimbursements and other amounts owing by the Borrower to either of such parties under the Facility Documents, respectively, each to the extent accrued and unpaid through the last day of the related Collection Period until such accrued fees, expenses, indemnities, reimbursements and other amounts are paid in full; provided, however, that the aggregate amount of expenses, indemnities and other amounts (excluding the Servicing Fee and the Backup Servicing Fee) payable under this clause (2) shall not exceed $100,000 for each of the Servicer and the Backup Servicer in any calendar year;
(ii) second, to the Administrative Agent, for distribution to each Lender, (1) to pay first, any accrued and unpaid Interest payable on a prior Payment Date to the extent not paid in full on such prior Payment Date (including interest thereon at the rate used to calculate Interest for the previous Collection Period but excluding any Interest amounts attributable to the Amortization Margin, if applicable) and (2) second, Unused Fees due each such Lender, with such Interest paid first with respect to the Advances and then Unused Fees;
(iii) third, to the Administrative Agent, for distribution to each Lender, to pay, accrued and unpaid Interest on the Advances due to such Lender for the previous Collection Period;
(iv) fourth, to the Administrative Agent, for distribution to each Lender, on a pro rata basis, (1) prior to the occurrence and continuance of an Event of Default or an Early Amortization Event and prior to the end of During the Revolving Period, if on each Payment Date other than during the Borrowing Base Test is not satisfied as of the later of (x) the most recent Determination Date occurrence and (y) the Borrowing Base Calculation Date employed in the determination continuation of a Borrowing Base Certificate delivered to the Administrative Agent in conjunction with a Borrowing DateDefault, to pay the principal of the Advances of each Lender (pro rata, based on each Lender’s Percentage) until the Borrowing Base Test is satisfied (on a pro forma basis as at the most recent Determination Date or such Borrowing Base Calculation Date, as applicable), and (2) at any time following the end of the Revolving Period (regardless of the cause of the end of the Revolving Period and regardless of whether an Event of Default or an Early Amortization Event has occurred and is continuing) and during the continuance of an Event of Default or an Early Amortization Event, to pay Interest Proceeds on deposit in the Advances of each Lender (pro rata, based Interest Collection Account and Principal Proceeds on each Lender’s Percentage) until paid deposit in full;
(v) fifththe Principal Collection Account, to the Administrative Agentextent received by the Custodian on or before the related Determination Date (or, for distribution if such Determination Date is not a Business Day, the next succeeding Business Day) that constitute Distribution Amounts, shall be applied in the following order of priority (the “Revolving Period Priority of Payments”):
(A) to each Lenderpay taxes, any Interest amounts attributable to the Amortization Marginregistration, registered office and filing fees, if any, of the Borrower;
(B) first, to the payment of accrued and unpaid Administrative Expenses in the order described in the definition thereof and; provided, however, that payments and not otherwise paid deposits pursuant to clause this subclause (iiB) aboveshall only be made to the extent that the total of payments and deposits shall not exceed, on any Payment Date, the Administrative Expenses Cap;
(viC) sixth, for deposit into the Reserve Account until the amounts on deposit therein are equal to the Reserve Account Required Amountpayment of amounts due and payable under each Eligible Hedge Agreement (if any) entered into by the Borrower (excluding any costs of termination of such Eligible Hedge Agreement and any amounts required to be paid upon termination of such Eligible Hedge Agreement if such termination is caused in each case by (1) an event of default under such Eligible Hedge Agreement for which the Eligible Hedge Counterparty is the defaulting party or (2) a termination event under such Eligible Hedge Agreement for which the Eligible Hedge Counterparty is the sole affected party);
(viiD) seventh(1) first, to paythe payment of accrued and unpaid interest on the Advances and amounts payable to the Lenders or any Affected Person under Section 2.09, Section 2.10 and Section 12.03; and (A2) second, to the payment of Commitment Fees due to the Lenders;
(E) if a Low Diversity Event has occurred and is continuing during the Revolving Period, to the Lenders, on a pro rata basis, in an amount sufficient to satisfy the Low Diversity Threshold;
(F) to the Administrative Agent, for distribution to each Lender, any Interest due and owing pursuant to this Agreement (including any payment of accrued and unpaid Interest payable on a prior Payment Date (and interest thereon) Administrative Expenses in the order described in the definition thereof, to the extent not paid in full on such prior Payment Datepursuant to clause (B) above, without reference to the Administrative Expenses Cap;
(G) to the payment of any costs of termination of any Eligible Hedge Agreement and any amounts required to be paid upon termination of such Eligible Hedge Agreement if such termination is caused in each case by (1) an event of default under such Eligible Hedge Agreement for which the Eligible Hedge Counterparty is the defaulting party or (2) a termination event under such Eligible Hedge Agreement for which the Eligible Hedge Counterparty is the sole affected party;
(H) during the Revolving Period and at the option of the Borrower, an amount directed by the Borrower for deposit to the Principal Collection Account for the purchase of additional Collateral Obligations (including funding Revolving Collateral Loans and Delayed Drawdown Collateral Loans); and
(I) any remaining amounts payable at the direction of the Borrower or the Collateral Manager (which, for the avoidance of doubt, may be distributed to the Fund).
(ii) Following the Revolving Period, on each Payment Date other than during the occurrence and continuation of a Default, an Event of Default or an Early Amortization Event, Interest Proceeds on deposit in the Interest Collection Account, to the extent received by the Custodian on or before the related Determination Date (or, if such Determination Date is not a Business Day, the next succeeding Business Day) that constitute Distribution Amounts, shall be applied in the following order of priority (the “Interest Collection Priority of Payments”):
(A) to pay taxes, registration, registered office and filing fees, if any, of the Borrower;
(B) first, to the payment of accrued and unpaid fees Administrative Expenses in the order described in the definition thereof; provided, however, that payments and expenses of the Administrative Agent in connection with deposits pursuant to this Agreement and the other Facility Documents and subclause (B) shall only be made to the extent that the total of payments and deposits shall not exceed, on any Payment Date, the Administrative Expenses Cap;
(C) to the payment of amounts due and payable under each Eligible Hedge Agreement (if any) entered into by the Borrower (excluding any costs of termination of such Eligible Hedge Agreement and any amounts required to be paid upon termination of such Eligible Hedge Agreement if such termination is caused in each case by (1) an event of default under such Eligible Hedge Agreement for which the Eligible Hedge Counterparty is the defaulting party or (2) a termination event under such Eligible Hedge Agreement for which the Eligible Hedge Counterparty is the sole affected party);
(D) (1) first, to the payment of accrued and unpaid interest on the Advances and amounts payable to the Lenders or any Affected Person under Section 2.09, Section 2.10 and Section 12.03; and (2) second, to the payment of Commitment Fees due to the Lenders;
(E) to the payment of accrued and unpaid Administrative Expenses in the order described in the definition thereof, to the extent not paid in full pursuant to clause (B) above, without reference to the Administrative Expenses Cap;
(F) to the payment of any costs of termination of any Eligible Hedge Agreement and any amounts required to be paid upon termination of such Eligible Hedge Agreement if such termination is caused in each case by (1) an event of default under such Eligible Hedge Agreement for which the Eligible Hedge Counterparty is the defaulting party or (2) a termination event under such Eligible Hedge Agreement for which the Eligible Hedge Counterparty is the sole affected party; and
(G) any remaining amounts payable at the direction of the Borrower or the Collateral Manager (which, for the avoidance of doubt, may be distributed to the Fund).
(iii) Following the Revolving Period, on each Payment Date other than during the occurrence and continuation of a Default, an Event of Default or an Early Amortization Event, Principal Proceeds on deposit in the Principal Collection Account, to the extent received by the Custodian on or before the related Determination Date (or, if such Determination Date is not a Business Day, the next succeeding Business Day) that constitute Distribution Amounts, shall be applied in the following order of priority (the “Principal Collection Priority of Payments”):
(A) to the extent not paid through the Interest Collection Priority of Payments, clauses (A) through (F) of the Interest Collection Priority of Payments;
(B) to the Lenders, on a pro rata basis, accrued a principal payment equal to the lesser of (1) the aggregate amount of outstanding Advances under the Facility and (2) all amounts remaining after making payments in clause 9.01(a)(iii)(A) above; and
(C) any remaining amounts payable at the direction of the Borrower or the Collateral Manager (which, for the avoidance of doubt, may be distributed to the Fund).
(iv) On each Payment Date during the occurrence and continuation of a Default, Event of Default or an Early Amortization Event, Interest Proceeds on deposit in the Interest Collection Account, to the extent received by the Custodian on or before the related Determination Date (or, if such Determination Date is not a Business Day, the next succeeding Business Day) that constitute Distribution Amounts, and Principal Proceeds on deposit in the Principal Collection Account that are received by the Custodian on or before the related Determination Date (or if such Determination Date is not a Business Day, the next succeeding Business Day) that constitute Distribution Amounts and were not designated for reinvestment by the Collateral Manager prior to the occurrence of such Default, Event of Default or Early Amortization Event, shall be applied, except for any Principal Proceeds that will be used to settle binding commitments (entered into prior to the Determination Date) for the purchase of Collateral Obligations, shall be applied in the following order of priority (the “Early Amortization Priority of Payments”):
(A) (i) first, to all reasonable and customary and documented out-of-pocket costs and expenses of the Collateral Agent incurred in connection with the sale of Collateral or exercise of other remedial rights pursuant to Section 7.03; and (2) second, to the payment of unpaid amounts owing to Affected Persons under clauses (if anyA) under Sections 2.09 and 11.03through (D) in clause (i) above (in the same order of priority specified therein), and all other fees, expenses or indemnities owed in each case without regard to the Secured Parties or Indemnified Parties (including, following the expiration of the Revolving Period, any Interest accrued at the Amortization Margin)Administrative Expense Cap;
(viiiB) eighthto the Lenders, on a pro rata basis, based an amount required to cure any Borrowing Base Deficiency;
(C) to the Lenders, on a pro rata basis, a principal payment equal to the lesser of (1) the aggregate amount of outstanding Advances under the Facility and (2) all amounts payable to each party pursuant to this clause remaining after making payments in clauses (viii)A) and (B) above, for the repayment of the Advances until paid in full, first, to repay the Account BankRevolving Advances and, second, if the outstanding principal amount of the Revolving Advances has been reduced to zero, the Servicer repay the Term Advances;
(D) to the payment of any unpaid indemnification payments or expenses of the Lenders;
(E) to the payment of any costs of termination of any Eligible Hedge Agreement (if any) and the Backup Servicer, any amounts due and payable required to be paid upon termination of such Eligible Hedge Agreement if such termination is caused in each case by (1) an event of default under such Eligible Hedge Agreement for which the Eligible Hedge Counterparty is the defaulting party or (2) a termination event under such Eligible Hedge Agreement for which are in excess of any applicable cap on such amounts described in clause (i) (including, with respect to any successor Servicer, any Successor Servicing Excess Servicing Fee or Successor Servicing Transition Fee)the Eligible Hedge Counterparty is the sole affected party; and
(ixF) ninth, (i) if no Unmatured Event of Default has occurred and is continuing, the remainder to or any remaining amounts payable at the direction of the Borrower and or the Collateral Manager (ii) otherwisewhich, for the avoidance of doubt, may be distributed to the Collection AccountFund).
(b) If on any Payment Date the amount available in the Collection Account is Distribution Amounts are insufficient to pay all amounts which are due and owing and which are to be paid pursuant to clauses (i) through (iii) make the full amount of Section 9.01(a)the disbursements required by the Payment Date Report, amounts on deposit in the Reserve Account may be transferred to Collateral Agent shall make the Collection Account to meet any shortfall and shall be disbursed disbursements called for in the order and according to the priority set forth under Section 9.01(a) to the extent funds are available therefor.
Appears in 1 contract
Samples: Credit and Security Agreement (TCW Direct Lending VIII LLC)
