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

Release of Excess Cash Flow Reserve Funds. (a) Upon the occurrence of a Cash Sweep Event Cure, provided no other Cash Sweep Event has occurred, all Excess Cash Flow Reserve Funds shall be paid (i) if a Mezzanine Loan Default is continuing, to Mezzanine Lenders to be held by Mezzanine Lenders pursuant to the Mezzanine Loan Agreements for the purposes described therein, or (ii) if the Mezzanine Loans are no longer outstanding or if there does not then exist a Cash Sweep Period and all amounts due and payable to Mezzanine Lenders have been paid, to Borrower. Any Excess Cash Flow Reserve Funds remaining after the Debt has been paid in full shall be paid (x) to the most senior Mezzanine Lender to be held by such Mezzanine Lender pursuant to the applicable Mezzanine Loan Agreement for the same purposes as those described therein or (y) if the Mezzanine Loans are no longer outstanding, to Borrower. (b) During a Cash Sweep Period, so long as no Event of Default has occurred and is continuing (other than Event of Default arising solely by a CPLV Lease Default, during any cure period that is continuing pursuant to Section 8.3 hereof), upon written request of Borrower, Lender shall disburse within ten (10) days of Borrower’s request and no more frequently than quarterly, disbursements to Borrower (i) to be distributed to its equity holders in accordance with its organizational documents for any audit, accounting and other administrative out-of-pocket costs and expenses incurred by Guarantor or the REIT arising in connection with the Property or Borrower’s ownership of the Property in an amount to not to exceed $8,000,000, in the aggregate for each calendar year and (ii) to be distributed to its equity holders in accordance with its organizational documents in order to make distributions required to be paid to enable the REIT to pay any dividends with respect to preferred interests that the REIT issued to satisfy the “100 shareholders” REIT qualification requirement under Section 856(a)(5) of the Code (the “REIT Distributions) and payments of the Tax Distribution for income taxes then due and payable by any direct or indirect owner of Borrower (collectively, the “Sponsor Tax Payments”), provided, that (A) Borrower shall have delivered written notification to Lender of the amount of such income taxes for the applicable period, (B) Lender shall have received evidence reasonably acceptable to Lender from Borrower setting forth the amounts of the income taxes then due and payable and (C) such Sponsor Tax Payments, together with all REIT Distributions shall not exceed $2,000,000, in the aggregate, during any calendar quarter, provided, further that in no event shall any amounts distributed pursuant to this Section 7.5.2(b) exceed $10,000,000, in the aggregate, in any calendar year.

Release of Excess Cash Flow Reserve Funds. (a) Upon the occurrence of a Cash Sweep Provided no Lockbox Event Cure, provided no other Cash Sweep Event has occurredPeriod is ongoing, all Excess Cash Flow Reserve Funds shall be paid 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 clauses (a)(i) and (ii) and clauses (b)(i) and (ii) below for the final Fiscal Quarter of each Fiscal Year shall be January 15th of the year following such Fiscal Quarter): (a) During any MDP Compliance Period, in the following amounts and order of priority: (i) if to any amount necessary to pay the Mezzanine Borrower, the Quarterly REIT Distributions; provided that before any funds shall be so disbursed for such Quarterly REIT Distributions, Borrower shall have provided to Lender a Mezzanine Loan Default is continuing, request for such disbursement setting forth the amounts payable to Mezzanine Lenders to be held by Mezzanine Lenders pursuant Borrower no less than ten (10) days prior to the Mezzanine Loan Agreements 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 Distributions for the purposes described therein, or final Fiscal Quarter of each Fiscal Year as reasonably necessary in advance of such Fiscal Quarter’s Quarterly Disbursement Date; (ii) if to any amount necessary to pay TRS Subsidiary(ies) the Mezzanine Loans are no longer outstanding or if there does not then exist Quarterly TRS Tax Distributions; provided that before any funds shall be so disbursed for such Quarterly TRS Tax Distributions, Borrower shall have provided to Lender a Cash Sweep Period and all request for such disbursement setting forth the amounts due and payable to Mezzanine Lenders have been paidTRS Subsidiary(ies), as applicable, 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 TRS Tax Distributions for the final Fiscal Quarter of each Fiscal Year as reasonably necessary in advance of such Fiscal Quarter’s Quarterly Disbursement Date; (iii) at Borrower’s option, upon no less than ten (10) Business Days’ prior written notice to Lender, to Borrower. Any Excess Cash Flow Reserve Funds remaining after the Debt has been paid in full shall be paid either (x) to the most senior Mezzanine Lender to be held by such Mezzanine Lender pursuant to the applicable Mezzanine Loan Agreement for the same purposes as those described therein PIK Accrued Amount or (y) to a prepayment of the Loan to be applied towards the next succeeding Mortgage Deleveraging Threshold; provided that, if Borrower does not timely deliver notice of its election in accordance with this clause (iii), such amount shall be applied to the Mezzanine Loans are PIK Accrued Amount; (iv) to any shortfall amount necessary to pay the Asset Advisory Fees and/or G&A Fees after application of Non-Collateral Property Excess Cash Flow in accordance with the Mezzanine Loan Documents; provided that before any funds shall be so disbursed for such Asset Advisory Fees and/or G&A Fees, Borrower shall have provided to Lender a request for such disbursement setting forth the shortfall amount no longer outstandingless than ten (10) Business Days prior to the Quarterly Disbursement Date together with an Officer’s Certificate certifying that such shortfall exists; (v) at Borrower’s election, such amounts up to Borrowerthe amount necessary to replenish the Corporate Reserve Fund in accordance with Section 7.6; and (vi) to the outstanding principal balance of the Loan as a Mortgage Deleveraging Payment. (b) During a Cash Sweep Other than during any MDP Compliance Period, in the following amounts and order of priority: (i) to any amount necessary to pay the Mezzanine Borrower the Quarterly REIT Distributions; provided that before any funds shall be so long as disbursed for such Quarterly REIT Distributions, Borrower shall have provided to Lender a request for such disbursement setting forth the amounts payable to Mezzanine Borrower no Event of Default has occurred and is continuing (other less than Event of Default arising solely by a CPLV Lease Default, during any cure period that is continuing pursuant to Section 8.3 hereof), upon written request of Borrower, Lender shall disburse within 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 Distributions for the final Fiscal Quarter of Borrowereach Fiscal Year as reasonably necessary in advance of such Fiscal Quarter’s request and no more frequently than quarterly, disbursements to Borrower (i) to be distributed to its equity holders in accordance with its organizational documents for any audit, accounting and other administrative out-of-pocket costs and expenses incurred by Guarantor or the REIT arising in connection with the Property or Borrower’s ownership of the Property in an amount to not to exceed $8,000,000, in the aggregate for each calendar year and Quarterly Disbursement Date; (ii) to be distributed to its equity holders in accordance with its organizational documents in order to make distributions required to be paid to enable the REIT any amount necessary to pay TRS Subsidiary(ies) the Quarterly TRS Tax Distributions; provided that before any dividends with respect to preferred interests that the REIT issued to satisfy the “100 shareholders” REIT qualification requirement under Section 856(a)(5) of the Code (the “REIT funds shall be so disbursed for such Quarterly TRS Tax Distributions) and payments of the Tax Distribution for income taxes then due and payable by any direct or indirect owner of Borrower (collectively, the “Sponsor Tax Payments”), provided, that (A) Borrower shall have delivered written notification provided to Lender of the amount of a request for such income taxes for the applicable period, (B) Lender shall have received evidence reasonably acceptable to Lender from Borrower disbursement setting forth the amounts payable to TRS Subsidiary(ies), as applicable, 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 TRS Tax Distributions for the final Fiscal Quarter of each Fiscal Year as reasonably necessary in advance of such Fiscal Quarter’s Quarterly Disbursement Date; (iii) to a prepayment of the income taxes then due and payable and Loan to be applied towards the Mortgage Deleveraging Threshold that Borrower failed to satisfy in accordance with Section 2.4.2(b) hereof until Borrower satisfies such Mortgage Deleveraging Threshold; and (Civ) such Sponsor Tax Payments, together to the outstanding principal balance of the Loan (which amount shall be applied to the succeeding Mortgage Deleveraging Threshold in accordance with all REIT Distributions shall not exceed $2,000,000, in the aggregate, during any calendar quarter, provided, further that in no event shall any amounts distributed pursuant to this Section 7.5.2(b2.4.2(b)(i) exceed $10,000,000, in the aggregate, in any calendar yearhereof).

Release of Excess Cash Flow Reserve Funds. (a) Upon the occurrence of a Cash Sweep Provided no Lockbox Event Cure, provided no other Cash Sweep Event has occurredPeriod is ongoing, all Excess Cash Flow Reserve Funds shall be paid 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 clauses (a)(i) and (ii) and clauses (b)(i) and (ii) below for the final Fiscal Quarter of each Fiscal Year shall be January 15th of the year following such Fiscal Quarter): (a) During any MDP Compliance Period, in the following amounts and order of priority: (i) if a Mezzanine Loan Default is continuing, to Mezzanine Lenders any amount necessary to be held by Mezzanine Lenders pursuant to pay the Mezzanine Loan Agreements Borrower, the Quarterly REIT Distributions; provided that before any funds shall be so disbursed for such Quarterly REIT Distributions, Borrower shall have provided to Lender a request for such disbursement setting forth the purposes described therein, or (ii) if the Mezzanine Loans are no longer outstanding or if there does not then exist a Cash Sweep Period and all amounts due and payable to Mezzanine Lenders have been paid, to Borrower. Any Excess Cash Flow Reserve Funds remaining after the Debt has been paid in full shall be paid (x) to the most senior Mezzanine Lender to be held by such Mezzanine Lender pursuant to the applicable Mezzanine Loan Agreement for the same purposes as those described therein or (y) if the Mezzanine Loans are Borrower no longer outstanding, to Borrower. (b) During a Cash Sweep Period, so long as no Event of Default has occurred and is continuing (other less than Event of Default arising solely by a CPLV Lease Default, during any cure period that is continuing pursuant to Section 8.3 hereof), upon written request of Borrower, Lender shall disburse within 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 Distributions for the final Fiscal Quarter of Borrowereach Fiscal Year as reasonably necessary in advance of such Fiscal Quarter’s request and no more frequently than quarterly, disbursements to Borrower (i) to be distributed to its equity holders in accordance with its organizational documents for any audit, accounting and other administrative out-of-pocket costs and expenses incurred by Guarantor or the REIT arising in connection with the Property or Borrower’s ownership of the Property in an amount to not to exceed $8,000,000, in the aggregate for each calendar year and Quarterly Disbursement Date; (ii) to be distributed to its equity holders in accordance with its organizational documents in order to make distributions required to be paid to enable the REIT any amount necessary to pay TRS Subsidiary(ies) the Quarterly TRS Tax Distributions; provided that before any dividends with respect to preferred interests that the REIT issued to satisfy the “100 shareholders” REIT qualification requirement under Section 856(a)(5) of the Code (the “REIT funds shall be so disbursed for such Quarterly TRS Tax Distributions) and payments of the Tax Distribution for income taxes then due and payable by any direct or indirect owner of Borrower (collectively, the “Sponsor Tax Payments”), provided, that (A) Borrower shall have delivered written notification provided to Lender of the amount of a request for such income taxes for the applicable period, (B) Lender shall have received evidence reasonably acceptable to Lender from Borrower disbursement setting forth the amounts payable to TRS Subsidiary(ies), as applicable, 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 TRS Tax Distributions for the final Fiscal Quarter of each Fiscal Year as reasonably necessary in advance of such Fiscal Quarter’s Quarterly Disbursement Date; (iii) at Borrower’s option, upon no less than ten (10) Business Days’ prior written notice to Lender, to either (x) the Mezzanine PIK Accrued Amount or (y) to a prepayment of the income taxes then due and payable and Loan to be applied towards the next succeeding Mortgage Deleveraging Threshold; provided that, if Borrower does not timely deliver notice of its election in accordance with this clause (Ciii), such amount shall be applied to the Mezzanine PIK Accrued Amount; (iv) to any shortfall amount necessary to pay the Asset Advisory Fees and/or G&A Fees after application of Non-Collateral Property Excess Cash Flow in accordance with the Mezzanine Loan Documents; provided that before any funds shall be so disbursed for such Sponsor Tax PaymentsAsset Advisory Fees and/or G&A Fees, Borrower shall have provided to Lender a request for such disbursement setting forth the shortfall amount no less than ten (10) Business Days prior to the Quarterly Disbursement Date together with all REIT Distributions shall not exceed $2,000,000an Officer’s Certificate certifying that such shortfall exists; (v) at Borrower’s election, such amounts up to the amount necessary to replenish the Corporate Reserve Fund in accordance with Section 7.6; and (vi) to the aggregate, during any calendar quarter, provided, further that in no event shall any amounts distributed pursuant to this Section 7.5.2(b) exceed $10,000,000, in outstanding principal balance of the aggregate, in any calendar yearLoan as a Mortgage Deleveraging Payment.