Common use of Release of Excess Cash Flow Reserve Funds Clause in Contracts

Release of Excess Cash Flow Reserve Funds. (a) During a Debt Yield Trigger Period, so long as no Event of Default has occurred and is continuing and no Bankruptcy Action of Borrower has occurred, upon written request of Borrower, Lender shall disburse within three (3) Business Days of Borrower’s request and no more frequently than bimonthly, Excess Cash Flow Reserve Funds for (i) payment of any Operating Expenses (including management fees, franchise fees and other fees, charges or costs, payable to Manager under the Management Agreement or Franchisor under the Franchise Agreement), (ii) emergency repairs and/or life safety issues (including any Capital Expenditures) at any Individual Property which Lender will endeavor to fund within one (1) Business Day of Borrower’s request therefor, (iii) Capital Expenditures and Replacements and PIP Work (after application of amounts then on deposit in the Replacements Reserve Account), (iv) Hotel Taxes and Custodial Funds, (v) costs incurred in connection with the purchase of any FF&E, (vi) costs incurred in connection with the purchase of any Interest Rate Cap Agreement or Replacement Interest Rate Cap Agreement required under the Loan Documents or the Mezzanine Loan Documents, (vii) voluntary prepayment of the Loan in accordance with Section 2.4.1 or Section 6.4(f) hereof or of the Mezzanine Loans (if any) in accordance with Section 2.4.1 or Section 6.4 of the Mezzanine Loan Agreement (provided that any prepayments of the Mezzanine Loans must be on a pro rata basis with the Loan), (viii) legal, audit, tax and accounting (including actual costs incurred by LXR Luxury Resorts or another affiliate of Borrower for back-office accounting and payments to Prospect Advisors for certain management services related to the Property), in an aggregate annual amount not to exceed the lesser of (x) one percent (1%) of Gross Income from Operations and (y) $2,000,000; provided that Excess Cash Flow shall not be used for expenses in connection with (A) the enforcement of any Borrower’s, Operating Lessee’s or Mezzanine Borrower’s rights under the Loan Documents or the Mezzanine Loan Documents, as applicable or (B) any defense of any enforcement by Lender or Mezzanine Lender of its rights under the Loan Documents or Mezzanine Loan Documents, as applicable, (ix) reserved, (x) costs of Restoration in excess of available Net Proceeds, (xi) Debt Service and Mezzanine Debt Service, (xii) any fees and costs payable by Borrower or Mezzanine Borrowers, including to Lender or Mezzanine Lender, subject to and in compliance with the Loan Documents and the Mezzanine Loan Documents, (xiii) costs associated with existing Leases or any new Leases entered into pursuant to the terms of this Agreement, including costs related to tenant improvement allowances, leasing commissions, Tenant-related Capital Expenditures, and tenant inducement payments and relocation costs (after application of amounts then on deposit in the Replacement Reserve Fund), (xiv) pro rata principal prepayments of the Loan and the Mezzanine Loans in the amount necessary to satisfy a Debt Yield Cure (provided such prepayment is made pro rata between the Loan and the Mezzanine Loans), (xv) Approved Alterations, (xvi) payment of shortfalls in the required deposits into the Reserve Accounts (in each case, to the extent required in this Agreement, the Mezzanine Loan Agreements and the Cash Management Agreement), (xvii) payments under the Ground Lease and (xviii) such other items as reasonably approved by Lender.

Release of Excess Cash Flow Reserve Funds. 7.5.2 (a) During a Debt Yield Trigger Period, so long as no Event of Default has occurred and is continuing and no Bankruptcy Action of Borrower has occurredcontinuing, upon written request of Borrowerany Individual Borrower or Individual Operating Lessee, Lender shall disburse within three five (35) Business Days of such Individual Borrower’s or Individual Operating Lessee’s request and no more frequently than bimonthly, Excess Cash Flow Reserve Funds for (i) payment of any Operating Expenses (including management fees, franchise fees and other fees, charges or costs, payable to Manager under the Management Agreement or Franchisor under the Franchise Agreement), (ii) emergency repairs and/or life safety issues (including any Capital Expenditures) at any Individual Property which Lender will endeavor to fund within one (1) Business Day of Borrower’s request thereforProperty, (iii) Capital Expenditures and Replacements and PIP Work set forth in the Approved Annual Budget or otherwise reasonably approved by Lender (after application of amounts then on deposit in the Replacements Reserve AccountReplacement Reserve), (iv) Hotel Taxes and Custodial Funds, (v) costs incurred in connection with subject to Lender’s approval, payment of the purchase cost of any FF&EReplacements not otherwise paid for under Section 7.3 hereof, (vi) intentionally omitted, (vii) any fees and costs incurred payable by Borrower subject to and in connection compliance with the purchase of any Interest Rate Cap Agreement or Replacement Interest Rate Cap Agreement required under the Loan Documents or (including the Mezzanine Loan Documentspayment of any Yield Maintenance Premiums), (viiviii) voluntary prepayment of the Loan in accordance with Section 2.4.1 hereof, or Section 6.4(f(ix) hereof legal fees arising in connection with any Individual Property or of the Mezzanine Loans applicable Individual Borrower’s or Individual Operating Lessee’s ownership or leasing (if anyas applicable) in accordance with Section 2.4.1 or Section 6.4 of the Mezzanine Loan Agreement (provided that any prepayments of the Mezzanine Loans must be on a pro rata basis with the Loan)and operation thereof; provided, (viii) legal, audit, tax and accounting (including actual costs incurred by LXR Luxury Resorts or another affiliate of Borrower for back-office accounting and payments to Prospect Advisors for certain management services related to the Property), in an aggregate annual amount not to exceed the lesser of (x) one percent (1%) of Gross Income from Operations and (y) $2,000,000; provided that Excess Cash Flow shall not be used for expenses legal fees in connection with (A) the enforcement of any Borrower’s, ’s or Operating Lessee’s or Mezzanine Borrower’s rights under the Loan Documents or the Mezzanine Loan Documents, as applicable or (B) any defense of any enforcement by Lender or Mezzanine Lender of its rights under the Loan Documents or Mezzanine Loan Documents, as applicable, (ix) reserved, (x) costs of Restoration audit, accounting and tax expenses arising in excess of available Net Proceedsconnection with any Individual Property or the applicable Individual Borrower’s or Individual Operating Lessee’s ownership or leasing (as applicable) and operation thereof, (xi) payment of shortfalls in the payment of Debt Service and Mezzanine Debt Serviceany other amounts due and owing to Lender under the Loan Documents, (xii) any fees and costs payable by Borrower or Mezzanine Borrowers, including to Lender or Mezzanine Lender, subject to and in compliance with the Loan Documents and the Mezzanine Loan Documentsintentionally omitted, (xiii) costs associated with existing Leases or any new Leases entered into pursuant to the terms of this Agreement, including costs related to tenant improvement allowances, leasing commissions, commissions and Tenant-related Capital Expenditures, and tenant inducement payments and relocation costs Expenditures (after application of amounts then on deposit in the Replacement Reserve FundAccount), (xiv) pro rata principal prepayments of the Loan and the Mezzanine Loans in the amount necessary to satisfy a Debt Yield Cure (provided such prepayment is made pro rata between the Loan and the Mezzanine Loans)in accordance with Section 2.4.5 hereof, (xv) Approved Alterationscosts of Restoration in excess of available Net Proceeds, (xvi) payment of shortfalls in the required deposits into the Reserve Accounts (in each case, to the extent required in this Agreement, the Mezzanine Loan Agreements Agreement and the Cash Management Agreement), and (xvii) payments under the Ground Lease and (xviii) such other items as reasonably approved by Lender, provided, that, prior to the date of the Restructuring, in each instance, Lender shall only be obligated to make Excess Cash Flow Reserve Funds available for the payment of the foregoing items to the extent such items are not otherwise payable by Manager pursuant to the Management Agreement. Upon the occurrence of a Cash Trap Event Cure, all Excess Cash Flow Reserve Funds shall be paid to Borrower.

Release of Excess Cash Flow Reserve Funds. (a) During a Debt Yield Trigger Period, so long as no Event of Default has occurred and is continuing and no Bankruptcy Action of Borrower has occurred, upon written request of Borrower, Lender shall disburse within three five (35) Business Days of Borrower’s request and no more frequently than bimonthly, Excess Cash Flow Reserve Funds for (i) payment of any Operating Expenses (including management fees, franchise fees and other fees, charges or costs, payable to Manager under the Management Agreement or Franchisor under the Franchise Agreement), (ii) emergency repairs and/or life safety issues (including any Capital Expenditures) at any Individual Property which Lender will endeavor to fund within one (1) Business Day of Borrower’s request thereforProperty, (iii) Capital Expenditures and Replacements and PIP Work set forth in the Approved Annual Budget or otherwise reasonably approved by Lender (after application of amounts then on deposit in the Replacements Reserve Account)Replacement Reserve) and Pre-Approved Alterations, (iv) Hotel Taxes and Custodial Funds, (v) costs incurred in connection with subject to Lender’s approval, payment of the purchase cost of any FF&EReplacements not otherwise paid for under Section 7.3 hereof, (vi) costs incurred in connection with the purchase of any Interest Rate Cap Agreement or Replacement Interest Rate Cap Agreement required under the Loan Documents or Documents, (vii) any fees and costs payable by Borrower subject to and in compliance with the Mezzanine Loan Documents, (viiviii) voluntary prepayment of the Loan in accordance with Section 2.4.1 hereof, or Section 6.4(f(ix) hereof or of the Mezzanine Loans (if any) in accordance with Section 2.4.1 or Section 6.4 of the Mezzanine Loan Agreement (provided that any prepayments of the Mezzanine Loans must be on a pro rata basis with the Loan), (viii) legal, audit, tax and accounting (including actual costs incurred by LXR Luxury Resorts or another affiliate of Borrower for back-office accounting and payments to Prospect Advisors for certain management services related to the Property), in an aggregate annual amount not to exceed the lesser of (x) one percent (1%) of Gross Income from Operations and (y) $2,000,000; provided that Excess Cash Flow shall not be used for expenses legal fees arising in connection with (A) the enforcement of any Borrower’s, Operating Lessee’s Properties or Mezzanine the Borrower’s rights under ownership and operation of the Loan Documents or the Mezzanine Loan Documents, as applicable Properties; or (B) any defense of any enforcement by Lender or Mezzanine Lender of its rights under the Loan Documents or Mezzanine Loan Documents, as applicable, (ix) reserved, (x) costs audit, accounting and tax expenses arising in connection with the Properties or Borrower’s ownership and operation of Restoration in excess of available Net Proceedsthe Properties, (xi) payment of shortfalls in the payment of Debt Service and Mezzanine Debt Serviceany other amounts due and owing to Lender under the Loan Documents, (xii) any fees and costs payable by Borrower or Mezzanine Borrowers, including to Lender or Mezzanine Lender, subject to and in compliance with payments under the Loan Documents and the Mezzanine Loan DocumentsGround Lease, (xiii) costs associated with existing Leases or any new Leases entered into pursuant to the terms of this Agreement, including costs related to tenant improvement allowances, leasing commissions, commissions and Tenant-related Capital Expenditures, and tenant inducement payments and relocation costs Expenditures (after application of amounts then on deposit in the Replacement Reserve Fund), (xiv) pro rata principal prepayments of the Loan and the Mezzanine Loans in the amount necessary to satisfy a Debt Yield Cure (provided such prepayment is made pro rata between the Loan and the Mezzanine Loans)Cure, (xv) Approved Alterationscosts of Restoration in excess of available Net Proceeds, (xvi) payment of shortfalls in the required deposits into the Reserve Accounts (in each case, to the extent required in this Agreement, the Mezzanine Loan Agreements Agreement and the Cash Management Agreement), and (xvii) payments under the Ground Lease and (xviii) such other items as reasonably approved by Lender. Upon the occurrence of a Cash Sweep Event Cure, all Excess Cash Flow Reserve Funds shall be paid to Borrower.

Release of Excess Cash Flow Reserve Funds. (a) During a Debt Yield Trigger Period, so long as no Event of Default has occurred and is continuing and no Bankruptcy Action of Borrower has occurredcontinuing, upon written request of BorrowerBorrower or Operating Lessee (as applicable), Lender shall disburse within three five (35) Business Days of Borrower’s or Operating Lessee’s request and no more frequently than bimonthly, (1) prior to the consummation of the Restructuring, Borrower Excess Cash Flow Reserve Funds, and (2) from and after the consummation of the Restructuring, Operating Lessee Excess Cash Flow Reserve Funds for (i) payment of any Operating Expenses (including management fees, franchise fees and other fees, charges or costs, payable to Manager or, prior to an R&A Manager Event, R&A Sub-Manager under the Management Agreement or Franchisor under the Franchise Agreement), (ii) emergency repairs and/or life safety issues (including any Capital Expenditures) at any Individual Property which Lender will endeavor to fund within one (1) Business Day of Borrower’s request thereforthe Property, (iii) Capital Expenditures and Replacements and PIP Work set forth in the Approved Annual Budget or otherwise reasonably approved by Lender (after application of amounts then on deposit in the Replacements Reserve AccountReplacement Reserve), (iv) Hotel Taxes and Custodial Funds, (v) costs incurred in connection with subject to Lender’s approval, payment of the purchase cost of any FF&EReplacements not otherwise paid for under Section 7.3 hereof, (vi) [reserved], (vii) any fees and costs incurred payable by Borrower subject to and in connection compliance with the purchase of any Interest Rate Cap Agreement or Replacement Interest Rate Cap Agreement required under the Loan Documents or (including the Mezzanine Loan Documentspayment of any Yield Maintenance Premium), (viiviii) voluntary prepayment of the Loan in accordance with Section 2.4.1 hereof, or Section 6.4(f(ix) hereof legal fees arising in connection with the Property or Borrower’s or Operating Lessee’s ownership or leasing (as applicable) and operation of the Mezzanine Loans (if any) in accordance with Section 2.4.1 or Section 6.4 of the Mezzanine Loan Agreement (provided that any prepayments of the Mezzanine Loans must be on a pro rata basis with the Loan)Property; provided, (viii) legal, audit, tax and accounting (including actual costs incurred by LXR Luxury Resorts or another affiliate of Borrower for back-office accounting and payments to Prospect Advisors for certain management services related to the Property), in an aggregate annual amount not to exceed the lesser of (x) one percent (1%) of Gross Income from Operations and (y) $2,000,000; provided that Excess Cash Flow shall not be used for expenses legal fees in connection with (A) the enforcement of any Borrower’s, ’s or Operating Lessee’s or Mezzanine Borrower’s rights under the Loan Documents or the Mezzanine Loan Documents, as applicable or (B) any defense of any enforcement by Lender or Mezzanine Lender of its rights under the Loan Documents or Mezzanine Loan Documents, as applicable, (ix) reserved, (x) costs of Restoration audit, accounting and tax expenses arising in excess of available Net Proceedsconnection with the Property or Borrower’s or Operating Lessee’s ownership or leasing (as applicable) and operation thereof, (xi) payment of shortfalls in the payment of Debt Service and Mezzanine Debt Serviceany other amounts due and owing to Lender under the Loan Documents, (xii) any fees and costs payable by Borrower or Mezzanine Borrowers, including to Lender or Mezzanine Lender, subject to and in compliance with payments under the Loan Documents and the Mezzanine Loan DocumentsGround Lease, (xiii) costs associated with existing Leases or any new Leases entered into pursuant to the terms of this Agreement, including costs related to tenant improvement allowances, leasing commissions, commissions and Tenant-related Capital Expenditures, and tenant inducement payments and relocation costs Expenditures (after application of amounts then on deposit in the Replacement Reserve FundAccount), (xiv) pro rata principal prepayments of the Loan and the Mezzanine Loans in the amount necessary to satisfy a Debt Yield Cure (provided such prepayment is made pro rata between the Loan and the Mezzanine Loans)in accordance with Section 2.4.5 hereof, (xv) Approved Alterationscosts of Restoration in excess of available Net Proceeds, (xvi) payment of shortfalls in the required deposits into the Reserve Accounts (in each case, to the extent required in this Agreement, the Mezzanine Loan Agreements Agreement and the Cash Management Agreement), and (xvii) payments under the Ground Lease and (xviii) such other items as reasonably approved by Lender, provided, that, prior to the date of the Restructuring, in each instance, Lender shall only be obligated to make Excess Cash Flow Reserve Funds available for the payment of the foregoing items to the extent such items are not otherwise payable by Manager pursuant to the Management Agreement. Upon the occurrence of a Cash Trap Event Cure, (A) all Borrower Excess Cash Flow Reserve Funds shall be paid to Borrower and (B) all Operating Lessee Excess Cash Flow Reserve Funds shall be paid to Operating Lessee.