Release of Excess Cash Flow Reserve Funds. (a) Prior to the Anticipated Repayment Date and during a DSCR Trigger Period, so long as (x) no Event of Default has occurred and is continuing and (y) no OpCo Trigger Event has occurred and is continuing, 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: (1) for so long as the Property is subject to the MGM/Mandalay Lease, without duplication of any amounts disbursed pursuant to subclause (a)(2), below, (i) Debt Service and/or Mezzanine Loan Debt Service, (ii) voluntary prepayment of the (A) Loan in accordance with Section 2.4.1, Section 2.5.1 or Section 6.4(c) hereof (including payment of any costs incurred with a Defeasance Event and/or the Yield Maintenance Premium) or (B) Mezzanine Loan in accordance with Section 2.4.1, Section 2.5.1 or Section 6.4(c) thereof (including payment of any costs incurred with a Defeasance Event and/or the Yield Maintenance Premium) (provided such prepayment is made pro rata between the Loan and the Mezzanine Loan), (iii) principal prepayments of the Loan in the amount necessary to achieve a DSCR Cure (which shall be applied to Note A and Note B in accordance with Section 2.4.4 hereof), (iv) costs associated with the MGM/Mandalay Lease, (v) any fees and costs payable by Borrower, including to Lender, subject to and in compliance with the Loan Documents, including, without limitation costs to extend any PLL Policy or renew, extend or purchase a Letter of Credit, (vi) legal, audit, tax and accounting (including actual costs incurred by MGP OP or XXXXX OP (directly or indirectly) and its service providers for back-office accounting and for costs associated with any Individual Property or Borrower); provided that Excess Cash Flow shall not be used for expenses in connection with (A) the enforcement of any Borrower’s rights under the Loan Documents, as applicable or (B) any defense of any enforcement by Lender of its rights under the Loan Documents, (vii) Permitted REIT Distributions and (viii) such other items as reasonably approved by Lender; or
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Release of Excess Cash Flow Reserve Funds. (a) Prior to the Anticipated Repayment Date and during a DSCR Trigger Period, so long as (x) no Event of Default has occurred and is continuing and (y) no OpCo Trigger Event has occurred and is continuing, 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:
(1) for so long as the Property is subject to the MGM/Mandalay Lease, without duplication of any amounts disbursed pursuant to subclause (a)(2), below, (i) Debt Service and/or Mezzanine Loan Debt Service, (ii) voluntary prepayment of the (A) Loan in accordance with Section 2.4.1, Section 2.5.1 or Section 6.4(c) hereof (including payment of any costs incurred with a Defeasance Event and/or the Yield Maintenance Premium) or (B) Mezzanine Loan in accordance with Section 2.4.1, Section 2.5.1 or Section 6.4(c) thereof (including payment of any costs incurred with a Defeasance Event and/or the Yield Maintenance Premium) (provided such prepayment is made pro rata between the Loan and the Mezzanine Loan), (iii) principal prepayments of the Loan in the amount necessary to achieve a DSCR Cure (which shall be applied to Note A and Note B in accordance with Section 2.4.4 hereof), (iv) costs associated with the MGM/Mandalay Lease, (v) any fees and costs payable by Borrower, including to Lender, subject to and in compliance with the Loan Documents, including, without limitation costs to extend any PLL Policy or renew, extend or purchase a Letter of Credit, (vi) legal, audit, tax and accounting (including actual costs incurred by MGP OP or XXXXX OP (directly or indirectly) and its service providers for back-office accounting and for costs associated with any Individual Property or Borrower); provided that Excess Cash Flow shall not be used for expenses in connection with (A) the enforcement of any Borrower’s rights under the Loan Documents, as applicable or (B) any defense of any enforcement by Lender of its rights under the Loan Documents, (vii) Permitted REIT Distributions and (viii) such other items as reasonably approved by Lender; or
(2) for so long as the Property is not subject to the MGM/Mandalay Lease, without duplication of any amounts disbursed pursuant to subclause (a)(1), above, (i) payment of any Operating Expenses (including management fees, franchise fees and other fees, charges or costs, payable to Casino Operator under the Casino Management Agreement, Manager under the Management Agreement or Franchisor/Licensor under the Franchise/License Agreement), (ii) emergency repairs and/or life safety issues (including any Capital Expenditures) at the applicable Individual Property which Lender will endeavor to fund within one (1) Business Day of Borrower’s request therefor, (iii) Capital Expenditures, Replacements, PIP Work and Brand Mandated Work (iv) Hotel Taxes and Custodial Funds, (v) costs incurred in connection with the purchase of any FF&E, (vi) intentionally omitted, (vii) voluntary prepayment of the (A) Loan in accordance with Section 2.4.1, Section 2.5.1 or Section 6.4(c) hereof (including payment of any costs incurred with a Defeasance Event and/or the Yield Maintenance Premium) or (B) Mezzanine Loan in accordance with Section 2.4.1, Section 2.5.1 or Section 6.4(c) thereof (including payment of any costs incurred with a Defeasance Event and/or the Yield Maintenance Premium) (provided such prepayment is made pro rata between the Loan and the Mezzanine Loan), (viii) legal, audit, tax and accounting (including actual costs incurred by MGP OP or XXXXX OP (directly or indirectly) and its service providers for back-office accounting and for costs associated with the applicable Individual Property or Borrower); provided that Excess Cash Flow shall not be used for expenses in connection with (A) the enforcement of Borrower’s rights under the Loan Documents, as applicable or (B) any defense of any enforcement by Lender of its rights under the Loan Documents, (ix) costs incurred in connection with the renewal, extension or purchase of a Letter of Credit, (x) costs of Restoration in excess of available Net Proceeds, (xi) Debt Service and/or Mezzanine Loan Debt Service, (xii) any fees and costs payable by Borrower, including to Lender, subject to and in compliance with the Loan Documents, including, without limitation costs to extend any PLL Policy, (xiii) costs associated with the MGM/Mandalay Lease, 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, tenant inducement payments and relocation costs, vacant space preparation costs and marketing costs with respect to potential leasing at any Individual Property, (xiv) principal prepayments of the Loan or Mezzanine Loan in the amount necessary to achieve a DSCR Cure (which, with respect to the Loan, shall be applied to Note A and Note B in accordance with Section 2.4.4 hereof), (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 and/or the Cash Management Agreement), (xvii) Permitted REIT Distributions and (xviii) such other items as reasonably approved by Lender. Provided no Event of Default has occurred and is continuing, on each Payment Date occurring after the Anticipated Repayment Date, all funds in the Excess Cash Flow Reserve Account shall be applied by Lender (x) first, toward the Additional Interest Amount in accordance with Section 2.3.1(b) hereof and (y) second, to reduce the outstanding principal balance of the Loan, in each case, on a dollar-for-dollar basis.
(b) Any Excess Cash Flow Reserve Funds remaining on deposit in the Excess Cash Flow Reserve Account upon the occurrence of a Cash Trap Event Cure or the date Borrower delivers an Excess Cash Flow Guaranty pursuant to Section 7.5.2(c) hereof shall be paid to Borrower. Any Excess Cash Flow Reserve Funds remaining on deposit in the Excess Cash Flow Reserve Account upon a Cash Trap Event Cure shall be paid (i) provided a cash sweep event under the Mezzanine Loan is then continuing or any amounts are then due and payable to Mezzanine Lender, to Mezzanine Lender to be held by Mezzanine Lender pursuant to the Mezzanine Loan Agreement for the purposes described therein and (ii) if the Mezzanine Loan is no longer outstanding or if there does not then exist a cash sweep event under the Mezzanine Loan and all amounts due and payable to Mezzanine Lender have been paid, to Borrower. Any Excess Cash Flow Reserve Funds remaining on deposit in the Excess Cash Flow Reserve Account after the Debt and all amounts due to Lender have been paid in full or following a Total Defeasance Event shall be paid (A) if any portion of the Mezzanine Loan is then outstanding, to Mezzanine Lender to be held by Mezzanine Lender pursuant to the Mezzanine Loan Agreement for the purposes described therein and (B) if no portion of the Mezzanine Loan is outstanding, to Borrower.
(c) In lieu of Agent depositing all Excess Cash Flow into the Excess Cash Flow Reserve Account in accordance with Section 7.5.1 hereof and Section 4.1(i) of the Cash Management Agreement and for so long as (x) no ARD Failure Event has occurred, (y) no Event of Default has occurred and is continuing and (z) XXXXX OP owns a direct and/or indirect interest in Borrower, Borrower shall have the right to cause an Excess Cash Flow Guarantor to deliver to Lender the Excess Cash Flow Guaranty, provided, that, as a condition precedent to the delivery of such Excess Cash Flow Guaranty to Lender, Borrower shall deliver to Lender, at Borrower’s sole cost and expense (i) an Additional Insolvency Opinion in respect of such Excess Cash Flow Guaranty in form and substance reasonably satisfactory to Lender if such disbursement of such amounts would cause the aggregate amount of obligations then outstanding under the Excess Cash Flow Guaranty (plus any outstanding amount under any Letter of Credit if the applicant thereunder is (x) XXXXX OP or a subsidiary of XXXXX OP that directly or indirectly owns 49% or more of the equity interests in Borrower, (y) MGP OP or a subsidiary of MGP OP that directly or indirectly owns 49% or more of the equity interests in Borrower and/or (z) a subsidiary of each of XXXXX OP and/or MGP OP that in the aggregate directly or indirectly owns 49% or more of the equity interests in Borrower) to exceed fifteen percent (15.00%) of the then outstanding principal balance of the Loan and (ii) a legal opinion that the Excess Cash Flow Guaranty has been duly authorized, executed and delivered by the Excess Cash Flow Guarantor, and that the Excess Cash Flow Guaranty is valid, binding and enforceable against Excess Cash Flow Guarantor in accordance with its terms, which opinions shall be in form and substance substantially similar to the opinions delivered by Borrower’s counsel upon the closing of the Loan with respect to validity, authority, execution and enforceability, and which may be relied upon by Lender and the Rating Agencies. In no instance shall Borrower be entitled to request, nor shall Lender be obligated to disburse, Excess Cash Flow to Borrower in lieu of depositing the same into the Excess Cash Flow Reserve Account if (I) an Event of Default has occurred and is continuing and/or (II) such Excess Cash Flow is not guaranteed pursuant to the Excess Cash Flow Guaranty. Notwithstanding anything contained herein to the contrary, no Person other than an Excess Cash Flow Guarantor shall be permitted to deliver the Excess Cash Flow Guaranty in accordance with this Section 7.5.2(c). Upon the earliest to occur of (i) a monetary Event of Default, (ii) a Priority Payment Cessation Event, and (iii) the delivery of a deed in lieu of foreclosure, Borrower (or Excess Cash Flow Guarantor, pursuant to the Excess Cash Flow Guaranty) shall remit to Lender an amount equal to the Guaranteed Excess Cash Flow as of such date, which amount shall at Lender’s option either be deposited by Lender into the Excess Cash Flow Reserve Account or applied in accordance with Section 7.5 as if such amounts had been contained in the Excess Cash Flow Reserve Account.
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Samples: Loan Agreement (MGM Growth Properties Operating Partnership LP)
Release of Excess Cash Flow Reserve Funds. (a) Prior to the Anticipated Repayment Date and during During a DSCR Debt Yield Trigger Period, so long as (x) no Event of Default has occurred and is continuing and (y) no OpCo Trigger Event has occurred and is continuing, 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:
(1) for so long as the Property is subject to the MGM/Mandalay Lease, without duplication of any amounts disbursed pursuant to subclause (a)(2), below, (i) Debt Service and/or Mezzanine Loan Debt Servicepayment of any Operating Expenses (including management 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, (ii) voluntary prepayment of the (A) Loan in accordance with Section 2.4.1, Section 2.5.1 or Section 6.4(c) hereof emergency repairs and/or life safety issues (including payment of any costs incurred with a Defeasance Event and/or Capital Expenditures) at the Yield Maintenance Premium) or (B) Mezzanine Loan in accordance with Section 2.4.1, Section 2.5.1 or Section 6.4(c) thereof (including payment of any costs incurred with a Defeasance Event and/or the Yield Maintenance Premium) (provided such prepayment is made pro rata between the Loan and the Mezzanine Loan)Property, (iii) principal prepayments of the Loan Capital Expenditures set forth in the amount necessary to achieve a DSCR Cure Approved Annual Budget or otherwise reasonably approved by Lender (which shall be applied to Note A and Note B after application of amounts then on deposit in accordance with Section 2.4.4 hereofthe Replacement Reserve), (iv) costs associated with the MGM/Mandalay LeaseHotel Taxes and Custodial Funds, (v) subject to Lender’s approval, payment of the cost of Replacements not otherwise paid for under Section 7.3 hereof, (vi) [reserved], (vii) any fees and costs payable by Borrower, including to Lender, Borrower subject to and in compliance with the Loan Documents, including, without limitation costs to extend Documents (including the payment of any PLL Policy or renew, extend or purchase a Letter of CreditYield Maintenance Premium), (viviii) legalvoluntary prepayment of the Loan in accordance with Section 2.4.1 hereof, audit, tax and accounting or (including actual costs incurred by MGP OP or XXXXX OP (directly or indirectlyix) and its service providers for back-office accounting and for costs associated legal fees arising in connection with any Individual the Property or Borrower)’s or Operating Lessee’s ownership or leasing (as applicable) and operation of the Property; provided provided, that Excess Cash Flow shall not be used for expenses legal fees in connection with (A) the enforcement of any Borrower’s or Operating Lessee’s rights under the Loan Documents, as applicable Documents or (B) any defense of any enforcement by Lender of its rights under the Loan Documents, (viix) Permitted REIT Distributions audit, accounting and tax expenses arising in connection 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 any other amounts due and owing to Lender under the Loan Documents, (xii) payments under the Ground 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 and Tenant-related Capital Expenditures (after application of amounts then on deposit in the Replacement Reserve Account), (xiv) principal prepayments of the Loan in the amount necessary to satisfy a Debt Yield Cure made in accordance with Section 2.4.5 hereof, (xv) costs 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 the Loan Agreement and the Cash Management Agreement), and (viiixvii) such other items as reasonably approved by Lender; or, 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.
(b) Promptly following the full repayment of the Debt and all amounts due to Lender or the defeasance of the Loan, (i) any Borrower Excess Cash Flow Reserve Funds remaining on deposit in the Borrower Excess Cash Flow Reserve Accounts shall be paid to Borrower and (ii) any Operating Lessee Excess Cash Flow Reserve Funds remaining on deposit in the Operating Lessee Excess Cash Flow Reserve Accounts shall be paid to Operating Lessee.
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Release of Excess Cash Flow Reserve Funds. (a) Prior to the Anticipated Repayment Date and during During a DSCR Debt Yield Trigger Period, so long as (x) no Event of Default has occurred and is continuing and (y) no OpCo Trigger Event Bankruptcy Action of Borrower has occurred and is continuingoccurred, 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:
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) for so long as Business Day of Borrower’s request therefor, (iii) Capital Expenditures and Replacements and PIP Work (after application of amounts then on deposit in the Property is subject to Replacements Reserve Account), (iv) Hotel Taxes and Custodial Funds, (v) costs incurred in connection with the MGM/Mandalay Lease, without duplication purchase of any amounts disbursed pursuant to subclause (a)(2), belowFF&E, (ivi) Debt Service and/or 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 Debt ServiceDocuments, (iivii) voluntary prepayment of the (A) Loan in accordance with Section 2.4.1, Section 2.5.1 2.4.1 or Section 6.4(c6.4(f) hereof or of the Mezzanine Loans (including payment of any costs incurred with a Defeasance Event and/or the Yield Maintenance Premiumif any) or (B) Mezzanine Loan in accordance with Section 2.4.1, Section 2.5.1 2.4.1 or Section 6.4(c) thereof (including payment 6.4 of any costs incurred with a Defeasance Event and/or the Yield Maintenance Premium) Mezzanine Loan Agreement (provided such prepayment is made that any prepayments of the Mezzanine Loans must be on a pro rata between basis with the Loan and the Mezzanine Loan), (iii) principal prepayments of the Loan in the amount necessary to achieve a DSCR Cure (which shall be applied to Note A and Note B in accordance with Section 2.4.4 hereof), (iv) costs associated with the MGM/Mandalay Lease, (v) any fees and costs payable by Borrower, including to Lender, subject to and in compliance with the Loan Documents, including, without limitation costs to extend any PLL Policy or renew, extend or purchase a Letter of Credit, (viviii) legal, audit, tax and accounting (including actual costs incurred by MGP OP LXR Luxury Resorts or XXXXX OP (directly or indirectly) and its service providers another affiliate of Borrower for back-office accounting and payments to Prospect Advisors for costs associated with any Individual Property or Borrowercertain 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, (viixiii) Permitted REIT Distributions 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 (viiixviii) such other items as reasonably approved by Lender; or.
(b) Any Excess Cash Flow Reserve Funds remaining on deposit in the Excess Cash Flow Reserve Account upon the occurrence of a Cash Trap Event Cure shall be paid (i) provided a Cash Trap Period under any Mezzanine Loan is then continuing or any amounts are then due and payable to the related Mezzanine Lender, to such Mezzanine Lender to be held by such Mezzanine Lender pursuant to the applicable Mezzanine Loan Agreement for the purposes described therein (provided that in the event that a Cash Trap Period is continuing under multiple Mezzanine Loans or any amounts are then due and payable under multiple Mezzanine Loans, such Excess Cash Flow Reserve Funds shall be paid to the Mezzanine Lender for the most senior Mezzanine Loan under which a Cash Trap Period is continuing or any amounts are then due and payable), or (ii) if no Mezzanine Loan is outstanding or if there does not then exist a Cash Trap Period under any Mezzanine Loans and all amounts due and payable to the Mezzanine Lenders have been paid, to Borrower. Any Excess Cash Flow Reserve Funds remaining on deposit in the Excess Cash Flow Reserve Account after the Debt and all amounts due to Lender have been paid in full shall be paid (x) in the event that any Mezzanine Loan is outstanding, provided a Cash Trap Period under such Mezzanine Loan is then continuing or any amounts are then due and payable to the related Mezzanine Lender, to such Mezzanine Lender to be held by such Mezzanine Lender pursuant to the applicable Mezzanine Loan Documents (provided that in the event that a Cash Trap Period is continuing under multiple Mezzanine Loans or any amounts are then due and payable under multiple Mezzanine Loans, such Excess Cash Flow Reserve Funds shall be paid to the Mezzanine Lender for the most senior Mezzanine Loan under which a Cash Trap Period is continuing or any amounts are then due and payable) or (y) in the event that there is no Cash Trap Period under any Mezzanine Loan or no Mezzanine Loan is outstanding, to Borrower.
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Release of Excess Cash Flow Reserve Funds. (a) Prior to the Anticipated Repayment Date and during During a DSCR Debt Yield Trigger Period, so long as (x) no Event of Default has occurred and is continuing and (y) no OpCo Trigger Event Bankruptcy Action of Borrower has occurred and is continuingoccurred, 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:
(1) for so long as the Property is subject to the MGM/Mandalay Lease, without duplication of any amounts disbursed pursuant to subclause (a)(2), below, (i) Debt Service and/or Mezzanine Loan Debt Servicepayment of any Operating Expenses (including management fees and other fees, charges or costs, payable to Manager under the Management Agreement), (ii) voluntary prepayment of the (A) Loan in accordance with Section 2.4.1, Section 2.5.1 or Section 6.4(c) hereof emergency repairs and/or life safety issues (including payment of any costs incurred with a Defeasance Event and/or the Yield Maintenance PremiumCapital Expenditures) or (B) Mezzanine Loan in accordance with Section 2.4.1, Section 2.5.1 or Section 6.4(c) thereof (including payment of at any costs incurred with a Defeasance Event and/or the Yield Maintenance Premium) (provided such prepayment is made pro rata between the Loan and the Mezzanine Loan)Individual Property, (iii) principal prepayments of the Loan Capital Expenditures set forth in the amount necessary to achieve a DSCR Cure Approved Annual Budget or otherwise reasonably approved by Lender (which shall be applied to Note A after application of amounts then on deposit in the Replacement Reserve) and Note B in accordance with Section 2.4.4 hereof)Pre-Approved Alterations, (iv) costs associated with the MGM/Mandalay LeaseHotel Taxes and Custodial Funds, (v) subject to Lender’s approval, payment of the cost of Replacements 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, (vii) any fees and costs payable by Borrower, including to Lender, Borrower subject to and in compliance with the Loan Documents, including(viii) voluntary prepayment of the Loan in accordance with Section 2.4.1 hereof, without limitation costs to extend any PLL Policy or renew, extend or purchase a Letter of Credit, (viix) legal, audit, tax and accounting (including actual costs incurred by MGP OP or XXXXX OP (directly or indirectly) and its service providers for back-office accounting and for costs associated with any Individual Property or Borrower); provided that Excess Cash Flow shall not be used for expenses legal fees arising in connection with (A) the enforcement of any Properties or the Borrower’s rights under ownership and operation of the Loan Documents, as applicable Properties; or (B) any defense of any enforcement by Lender of its rights under the Loan Documents, (viix) Permitted REIT Distributions audit, accounting and tax expenses arising in connection with the Properties or Borrower’s ownership and operation of the Properties, (xi) payment of shortfalls in the payment of Debt Service and any other amounts due and owing to Lender under the Loan Documents, (xii) payments under the Ground 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 and Tenant-related Capital Expenditures (after application of amounts then on deposit in the Replacement Reserve Fund), (xiv) principal prepayments of the Loan in the amount necessary to satisfy a Debt Yield Cure, (xv) costs 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 the Loan Agreement and the Cash Management Agreement), and (viiixvii) such other items as reasonably approved by Lender; or. Upon the occurrence of a Cash Sweep Event Cure, all Excess Cash Flow Reserve Funds shall be paid to Borrower.
(b) Any Excess Cash Flow Reserve Funds remaining on deposit in the Excess Cash Flow Reserve Account after the Debt and all amounts due to Lender have been paid in full shall be paid to Borrower.
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Release of Excess Cash Flow Reserve Funds. (a) Prior to the Anticipated Repayment Date and during During a DSCR Debt Yield Trigger Period, so long as (x) no Event of Default has occurred and is continuing and (y) no OpCo Trigger Event has occurred and is continuing, 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:
(1) for so long as the Property is subject to the MGM/Mandalay Lease, without duplication of any amounts disbursed pursuant to subclause (a)(2), below, (i) Debt Service and/or Mezzanine Loan Debt Servicepayment of any Operating Expenses (including management fees and other fees, charges or costs, payable to Manager under the Management Agreement), (ii) voluntary prepayment of the (A) Loan in accordance with Section 2.4.1, Section 2.5.1 or Section 6.4(c) hereof emergency repairs and/or life safety issues (including payment of any costs incurred with a Defeasance Event and/or the Yield Maintenance PremiumCapital Expenditures) or (B) Mezzanine Loan in accordance with Section 2.4.1, Section 2.5.1 or Section 6.4(c) thereof (including payment of at any costs incurred with a Defeasance Event and/or the Yield Maintenance Premium) (provided such prepayment is made pro rata between the Loan and the Mezzanine Loan)Individual Property, (iii) principal prepayments of the Loan Capital Expenditures set forth in the amount necessary to achieve a DSCR Cure Approved Annual Budget or otherwise reasonably approved by Lender (which shall be applied to Note A and Note B after application of amounts then on deposit in accordance with Section 2.4.4 hereofthe Replacement Reserve), (iv) costs associated with the MGM/Mandalay LeaseHotel Taxes and Custodial Funds, (v) subject to Lender’s approval, payment of the cost of Replacements not otherwise paid for under Section 7.3 hereof, (vi) intentionally omitted, (vii) any fees and costs payable by Borrower, including to Lender, Borrower subject to and in compliance with the Loan Documents, including, without limitation costs to extend Documents (including the payment of any PLL Policy or renew, extend or purchase a Letter of CreditYield Maintenance Premiums), (viviii) legalvoluntary prepayment of the Loan in accordance with Section 2.4.1 hereof, audit, tax and accounting or (including actual costs incurred by MGP OP or XXXXX OP (directly or indirectlyix) and its service providers for back-office accounting and for costs associated legal fees arising in connection with any Individual Property or the applicable Individual Borrower)’s or Individual Operating Lessee’s ownership or leasing (as applicable) and operation thereof; provided provided, that Excess Cash Flow shall not be used for expenses legal fees in connection with (A) the enforcement of any Borrower’s or Operating Lessee’s rights under the Loan Documents, as applicable Documents or (B) any defense of any enforcement by Lender of its rights under the Loan Documents, (viix) Permitted REIT Distributions audit, accounting and tax expenses arising in connection 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 any other amounts due and owing to Lender under the Loan Documents, (xii) intentionally 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 and Tenant-related Capital Expenditures (after application of amounts then on deposit in the Replacement Reserve Account), (xiv) principal prepayments of the Loan in the amount necessary to satisfy a Debt Yield Cure made in accordance with Section 2.4.5 hereof, (xv) costs 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 the Loan Agreement and the Cash Management Agreement), and (viiixvii) such other items as reasonably approved by Lender; or, 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.
(b) Any Excess Cash Flow Reserve Funds remaining on deposit in the Excess Cash Flow Reserve Account after the Debt and all amounts due to Lender have been paid in full or the Loan has been defeased shall be paid to Borrower.
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Release of Excess Cash Flow Reserve Funds. (a) Prior to the Anticipated Repayment Date and during a DSCR Trigger PeriodProvided no Lockbox Event Period is ongoing, so long as (x) no Event of Default has occurred and is continuing and (y) no OpCo Trigger Event has occurred and is continuing, upon written request of Borrower, Lender shall disburse within three (3) Business Days of Borrower’s request and no more frequently than bimonthly, all Excess Cash Flow Reserve Funds forshall be disbursed on the last Business Day of each calendar quarter after the Funding Date (the “Quarterly Disbursement Date”) as follows (provided, however, that, at the election of Borrower, the Quarterly Disbursement Date for the items in clause (a)(i) and clause (b)(i) below for the final Fiscal Quarter of each Fiscal Year shall be January 15th of the year following such Fiscal Quarter):”
(m) Section 7.8.2(a)(i) of the Loan Agreement is hereby replaced in its entirety with the following:
(1i) for so long as the Property is subject to the MGM/Mandalay LeaseREIT Distribution Reserve Account the Quarterly REIT Reserves Amount; provided that before any funds shall be so reserved for such Quarterly REIT Reserves Amount, without duplication Borrower shall have provided to Lender a request for such reserves setting forth the amounts reservable in the REIT Distribution Reserve Account no less than ten (10) days prior to the Quarterly Disbursement Date together with an Officer’s Certificate certifying such amounts; provided further, however, that Borrower may revise such request with respect to the Quarterly REIT Reserves Amount for the final Fiscal Quarter of any amounts disbursed pursuant to subclause each Fiscal Year as reasonably necessary in advance of such Fiscal Quarter’s Quarterly Disbursement Date;”
(a)(2), below, n) Section 7.8.2(a)(ii) of the Loan Agreement is hereby replaced in its entirety with: “Intentionally Omitted”.
(o) Section 7.8.2(b)(i) of the Loan Agreement is hereby replaced in its entirety with the following:
(i) Debt Service and/or Mezzanine Loan Debt Serviceto the REIT Distribution Reserve Account the Quarterly REIT Reserves Amount; provided that before any funds shall be so reserved for such Quarterly REIT Reserves Amount, Borrower shall have provided to Lender a request for such reserves setting forth the amounts reservable in the REIT Distribution Reserve Account no less than ten (ii10) voluntary prepayment days prior to the Quarterly Disbursement Date together with an Officer’s Certificate certifying such amounts; provided further, however, that Borrower may revise such request with respect to the Quarterly REIT Reserves Amount for the final Fiscal Quarter of each Fiscal Year as reasonably necessary in advance of such Fiscal Quarter’s Quarterly Disbursement Date;”
(p) Section 7.8.2(b)(ii) of the Loan Agreement is hereby replaced in its entirety with: “Intentionally Omitted”.
(Aq) Section 7.8.2 (Release of Excess Cash Flow Reserve Funds) of the Loan Agreement is hereby amended by adding the following clause (d): “Provided no Lockbox Event Period is ongoing and except as otherwise contemplated by Section 2.6.2(c), to the extent there are funds in the Excess Cash Flow Reserve Account, Borrower shall be permitted to have funds disbursed to the TRS Subsidiaries from the Excess Cash Flow Reserve Account in an amount equal to the Quarterly TRS Tax Payments for such quarter in accordance with the timeline set forth in Schedule 7.8.2(d) attached hereto; provided, however, that before any funds shall be so disbursed for any such Quarterly TRS Tax Payments, Borrower shall have provided to Lender an Officer’s Certificate certifying such amounts; provided, further, that to the extent amounts are requested be disbursed on a Quarterly Disbursement Date the disbursements for Quarterly TRS Tax Payments pursuant to this Section 2.4.1, 7.8.2(d) shall be prioritized over the disbursements pursuant to Section 2.5.1 7.8.2(a) or Section 6.4(c7.8.2(b).”
(r) hereof Schedule 4.1.1 (including payment Organizational Chart of any costs incurred Borrower) attached to the Loan Agreement is hereby replaced in its entirety with a Defeasance Event and/or Schedule 4.1.1 attached hereto.
(s) Schedule 4.1.26-B (Unfunded Obligations) attached to the Yield Maintenance PremiumLoan Agreement is hereby replaced in its entirety with Schedule 4.1.26-B attached hereto.
(t) or Schedule 7.1.1 (BRequired Repairs – Deadlines for Completion) Mezzanine attached to the Loan Agreement is hereby replaced in accordance its entirety with Section 2.4.1, Section 2.5.1 or Section 6.4(cSchedule 7.1.1 attached hereto.
(u) thereof (including payment of any costs incurred with a Defeasance Event and/or the Yield Maintenance PremiumSchedule 7.8.2(d) (provided such prepayment Quarterly TRS Tax Payments) attached hereto is made pro rata between hereby added as Schedule 7.8.2(d) to the Loan and the Mezzanine Loan), (iii) principal prepayments of the Loan in the amount necessary to achieve a DSCR Cure (which shall be applied to Note A and Note B in accordance with Section 2.4.4 hereof), (iv) costs associated with the MGM/Mandalay Lease, (v) any fees and costs payable by Borrower, including to Lender, subject to and in compliance with the Loan Documents, including, without limitation costs to extend any PLL Policy or renew, extend or purchase a Letter of Credit, (vi) legal, audit, tax and accounting (including actual costs incurred by MGP OP or XXXXX OP (directly or indirectly) and its service providers for back-office accounting and for costs associated with any Individual Property or Borrower); provided that Excess Cash Flow shall not be used for expenses in connection with (A) the enforcement of any Borrower’s rights under the Loan Documents, as applicable or (B) any defense of any enforcement by Lender of its rights under the Loan Documents, (vii) Permitted REIT Distributions and (viii) such other items as reasonably approved by Lender; orAgreement.
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