Settlement Procedures. On each Payment Date, the Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority: (a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections: (i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans; (ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts; (iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof; (iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof; (v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof; (vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof; (vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date; (viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding; (ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty; (x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any); (xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;
Appears in 8 contracts
Samples: Credit Agreement (Gladstone Capital Corp), Credit Agreement (Gladstone Capital Corp), Fifth Amended and Restated Credit Agreement (Gladstone Capital Corp)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which shall be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Borrower or received in any Lock-Box or Collection Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay (i) the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement or (ii) amounts owing by the Borrower to the Originators under the Subordinated Notes (each such release, a “Release”). On each Payment Settlement Date, the Servicer on behalf (or, following its assumption of control of the Borrower shall pay for receipt by Collection Accounts, the applicable Lender no later than 11:00 a.m. (New York City timeAdministrative Agent) to the following Personsshall, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during distribute such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts Collections in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRSTfirst, to the BorrowerServicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of Servicing Fees payable for any prior Interest Period to the Transferred Loansextent such amount has not been distributed to the Servicer);
(ii) SECONDsecond, to each Hedge CounterpartyLender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts owing that Hedge Counterparty or indemnified amounts payable under its respective Hedging Agreement Sections 5.03 and 12.01 in respect of any Hedge Transaction(ssuch payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 12.01 in respect of such payments) payable for the payment thereof, but excluding, any prior Interest Period to the extent the Hedge Counterparty is such amount has not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amountsbeen distributed to such Lender or Credit Party;
(iii) THIRDthird, to the Servicer, as set forth in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
clause (ivx) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Serviceror (y) below, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;:
Appears in 7 contracts
Samples: Receivables Financing Agreement (BrightView Holdings, Inc.), Receivables Financing Agreement (BrightView Holdings, Inc.), Receivables Financing Agreement (BrightView Holdings, Inc.)
Settlement Procedures. (a) On each Payment Date, so long as no Event of Default has occurred and is continuing, the Servicer Collateral Manager shall direct the Collateral Custodian to pay pursuant to the latest Borrowing Base Certificate (and the Collateral Custodian shall make payment from the Interest Collection Account to the extent of Available Funds, in reliance on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City timeinformation set forth in such Borrowing Base Certificate) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a1) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
pro rata to (iA) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian Custodian, in an amount equal to any accrued and unpaid Collateral Custodian Fee Fees; provided that, the aggregate amount payable pursuant to this Section 2.7(a)(1)(A), Section 2.7(b)(1)(A) and Collateral Custodian ExpensesSection 2.8(1)(A) shall not exceed $100,000 per annum, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwisethe applicable Governmental Authority for any Tax; provided that, its accrued the aggregate amount payable pursuant to this Section 2.7(a)(1)(B), Section 2.7(b)(1)(B) and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereofSection 2.8(1)(B) shall not exceed $25,000 per annum;
(vii2) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related LendersCollateral Manager, in an amount equal to any accrued and unpaid Interest expenses; provided that, the aggregate amount payable pursuant to this Section 2.7(a)(2), Section 2.7(b)(2) and Unused Fee for such Payment DateSection 2.8(2) shall not exceed $100,000 per annum;
(viii3) EIGHTHpro rata to each Lender, firstin an amount equal to (A) such Lender’s share of the Interest for the related Accrual Period and any accrued and unpaid Interest for previous Accrual Periods, (B) such Lender’s pro rata share of the Non-Usage Fee for the related Accrual Period and any unpaid Non-Usage Fees for previous Accrual Periods and (C) any unpaid Breakage Costs with respect to such Lender;
(4) pro rata to the Administrative Agent and each Lender, all fees and other amounts, including any Increased Costs and Structuring Fee, but other than the principal of Advances Outstanding, Commitment Reduction Fees and Administrative Expenses, then due to each such Person under this Agreement;
(5) pro rata to each Lender, if the Required Advance Reduction Amount is greater than zero, an amount necessary to reduce the Required Advance Reduction Amount to zero;
(6) pro rata to each Lender, in an amount equal to any accrued and unpaid Commitment Reduction Fee;
(7) (i) prior to the Revolving Period End Date, to the Unfunded Exposure Account in an amount necessary to cause the amount on deposit in the Unfunded Exposure Account to equal the Unfunded Exposure Equity Amount, and (ii) after the end of the Revolving Period, to the Unfunded Exposure Account in an amount equal to Exposure Amount Shortfall;
(8) pro rata to each applicable party, to pay all other accrued and unpaid Administrative Expenses and Taxes; and
(9) (A) during a Default, to remain in the Interest Collection Account or (B) otherwise, any remaining amounts shall be distributed to (or as directed by) the Borrower (to be used for any purpose, including distribution to the Equityholder).
(b) On each Payment Date, so long as no Event of Default has occurred and is continuing, the Collateral Manager shall direct the Collateral Custodian to pay pursuant to the latest Borrowing Base Certificate (and the Collateral Custodian shall make payment from the Principal Collection Account to the extent of available Principal CollectionsAvailable Funds, and secondin reliance on the information set forth in such Borrowing Base Certificate) to the following Persons, the following amounts in the following order of priority:
(1) pro rata to (A) to the extent not paid pursuant to Section 2.7(a)(1)(A), to the Collateral Custodian, in an amount equal to any accrued and unpaid Collateral Custodian Fees; provided that, the aggregate amount payable pursuant to Section 2.7(a)(1)(A), this Section 2.7(b)(1)(A) and Section 2.8(1)(A) shall not exceed $100,000 per annum and (B) to the extent not paid pursuant to Section 2.7(a)(1)(B), to the applicable Governmental Authority for any Tax; provided that, the aggregate amount payable pursuant to Section 2.7(a)(1)(B), this Section 2.7(b)(1)(B) and Section 2.8(1)(B) shall not exceed $25,000 per annum;
(2) to the extent not paid pursuant to Section 2.7(a)(2), to the Collateral Manager, in an amount equal to any accrued and unpaid expenses; provided that, the aggregate amount payable pursuant to Section 2.7(a)(2), this Section 2.7(b)(2) and Section 2.8(2) shall not exceed $100,000 per annum;
(3) to the extent not paid pursuant to Section 2.7(a)(3), pro rata to each Lender, in an amount equal to (A) such Lender’s share of available the Interest Collectionsfor the related Accrual Period and any accrued and unpaid Interest for previous Accrual Periods, (B) such Lender’s share of the Non-Usage Fee for the related Accrual Period and any unpaid Non-Usage Fees for previous Accrual Periods and (C) any unpaid Breakage Costs with respect to such Lender;
(4) to the extent not paid pursuant to Section 2.7(a)(4), pro rata to the Administrative Agent for payment and each Lender, all other fees and other amounts, including any Increased Costs and Structuring Fee, but other than the principal of Advances Outstanding, Commitment Reduction Fee and Administrative Expenses, then due to each Managing Agentsuch Person under this Agreement;
(5) to the extent not paid pursuant to Section 2.7(a)(5), on behalf of pro rata to each Lender, if the related LendersRequired Advance Reduction Amount is greater than zero, an amount necessary to reduce the Required Advance Reduction Amount to zero;
(6) to the extent not paid pursuant to Section 2.7(a)(6), pro rata to each Lender, in an amount equal to any accrued and unpaid Commitment Reduction Fee;
(7) during the excessRevolving Period, if anyas directed by the Collateral Manager, of to (A) repay Advances Outstanding over Outstanding, (B) return cash to the lesser of Principal Collection Account for application in accordance with the terms hereof and/or (C) unless a Default has occurred and is continuing, or after giving effect to such distribution the Availability is less than zero, to be distributed to (or as directed by) the Borrower (to be used for any purpose, including distribution to the Collateral Manager);
(8) to the extent not paid pursuant to Section 2.7(a)(7), to the Unfunded Exposure Account in an amount equal to (i) prior to the Borrowing Base or (ii) Revolving Period End Date, necessary to cause the Facility amount on deposit in the Unfunded Exposure Account to equal the Unfunded Exposure Equity Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed after the Facility end of the Revolving Period, the Exposure Amount due to one or more Lenders becoming Non-Renewing LendersShortfall;
(9) after the end of the Revolving Period, to each Managing Agent on behalf of such Non-Renewing the Lenders only, pro rata in accordance with their to pay the Advances Outstanding;
(ix10) NINTHto the extent not paid pursuant to Section 2.7(a)(8), pro rata to each applicable party to pay all other Administrative Expenses and Taxes; and
(11) (A) during a Default, to each Hedge Counterpartyremain in the Principal Collection Account or (B) otherwise, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;remaining amounts shall be distributed to (or as directed by) the Borrower (to be used for any purpose, including distribution to the Equityholder).
(xc) TENTHThe Collateral Manager may, in its sole discretion, direct the Collateral Custodian to make a payment to the Administrative Agent for Borrower from the Principal Collection Account on any Business Day other than a Payment Date if, both immediately prior and after giving effect to such payment (i) the Availability is greater than zero and (ii) no Default or Event of Default has occurred and is continuing.
(d) Subject to each Managing Agent, on behalf the satisfaction of the related Lendersapplicable conditions set forth in Section 3.2, the Collateral Manager may direct the Collateral Custodian to withdraw funds on deposit in the amount of unpaid Breakage Costs (other than Breakage Costs covered Principal Collection Account on any Business Day in clause (vii) above) with respect order to any prepayments made on reinvest such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, funds in Eligible Loans to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;be pledged hereunder.
Appears in 7 contracts
Samples: Loan and Security Agreement (New Mountain Guardian III BDC, L.L.C.), Loan and Security Agreement (New Mountain Guardian III BDC, L.L.C.), Loan and Security Agreement (New Mountain Guardian III BDC, L.L.C.)
Settlement Procedures. (i) The Servicer shall deposit into the Collection Account, on each Business Day selected by the SPV for a reduction of the Net Investment under Section 2.13 the amount of Collections held for the Agent pursuant to Section 2.12(a)(ii)(A)(1).
(ii) On any date on or prior to the Termination Date, if the sum of the Net Investment and Required Reserves exceeds the Net Pool Balance, the Servicer shall immediately pay to the Collection Account from amounts set aside pursuant to Section 2.12(a)(ii)(A)(2) an amount equal to such excess.
(iii) On each Payment Settlement Date, the Servicer on behalf shall deposit to the Collection Account out of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) amount, if any, held in trust pursuant to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (iiSection 2.12(a)(i) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, theretofore reinvested) Section 2.12(a)(iii) and not theretofore deposited to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal Collection Account pursuant to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lendersthis Section 2.12(b), an amount equal to the excess, if any, of Advances Outstanding over the lesser of such amount and the Net Investment; provided, that if the Agent gives its consent (which consent may be revoked at any time during the continuation of a Termination Event or a Potential Termination Event), the Servicer may retain amounts which would otherwise be deposited in respect of the accrued and unpaid Servicing Fee, in which case no distribution shall be made in respect of such Servicing Fee under clause (c) below. Any amounts set aside pursuant to Section 2.12(a) in excess of the amount required to be deposited in the Collection Account pursuant to this subsection (b) shall continue to be set aside and held in trust by the Servicer for application on the next succeeding Settlement Date, and provided, further, that if (i) the Borrowing Base or Servicer makes a deposit into the Collection Account in respect of a Collection of a Receivable and such Collection was received by the Servicer in the form of a check that is not honored for any reason, (ii) the Facility Amount, together Servicer makes a mistake with respect to the amount of Breakage Costs incurred by any Collection and deposits an amount that is less than or more than the applicable Lenders in connection with any actual amount of such payment Collection or (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (iiii) the Termination Date has not occurred deposit was made in error and (ii) Advances Outstanding exceed constitutes an Excluded Amount, the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in Servicer shall appropriately adjust the amount subsequently deposited into the Collection Account to reflect such dishonored check or mistake. Any payment in respect of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect which a dishonored check is received shall be deemed not to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;have been paid.
Appears in 6 contracts
Samples: Transfer and Administration Agreement (Greif, Inc), Transfer and Administration Agreement (Greif, Inc), Transfer and Administration Agreement (Greif, Inc)
Settlement Procedures. On each Payment Date, the Servicer on behalf of the Borrower shall pay pay, for receipt by the applicable Lender no later than 11:00 a.m. 1:00 p.m. (New York, New York City time) ), to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;
Appears in 4 contracts
Samples: Fifth Amended and Restated Credit Agreement (Gladstone Investment Corporation\de), Credit Agreement (Gladstone Investment Corporation\de), Credit Agreement (Gladstone Investment Corporation\de)
Settlement Procedures. On each Payment Date, (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on behalf a timely basis all information needed for such administration, including notice of the Borrower shall pay for receipt occurrence of the Facility Termination Date and current computations of the Purchased Interest (and the components thereof).
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the applicable Lender no later than 11:00 a.m. (New York City time) to Seller or the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal CollectionsServicer:
(i) FIRSTset aside and hold in trust (and shall, at the request of the Administrator after the occurrence of an Unmatured Termination Event or Termination Event, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, an amount equal to the Borrowersum of (w) the Aggregate Discount accrued through such day for each portion of Capital not previously set aside, (x) an amount equal to the fees owing to the Purchasers and the Administrator accrued and unpaid through such day, and (y) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the aggregate amount of fees (including up-frontPurchaser Agents, continuing the Administrator, and any other Indemnified Party or success fees) received in respect of the Transferred LoansAffected Person;
(ii) SECOND, subject to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(sSection 1.4(f), for if such day is not a Termination Day, the payment thereof, but excludingremainder of the Collections not set aside pursuant to clause (b)(i) of this Section 1.4 shall, to the extent representing a return of Capital, be automatically Reinvested according to each Purchaser’s Capital in Pool Receivables, and in the Hedge Counterparty is associated Related Security, Collections and other proceeds with respect thereto; provided, however, that, if after giving effect to any such Reinvestment, (x) the Purchased Interest would exceed 100% or (y) the Aggregate Capital would exceed the Purchase Limit then in effect, then the Servicer shall not so Reinvest, but shall set aside and hold in trust for the same Person benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to (x) reduce the Purchased Interest to 100% and (y) cause the Aggregate Capital to not exceed the Purchase Limit, as applicable, which amount shall be deposited ratably to each Purchaser Agent’s account (for the Administrative Agent, any Swap Breakage benefit of its related Purchasers and Indemnity Amountsto be applied in reduction of their respective Capital) on the next Settlement Date in accordance with Section 1.4(c);
(iii) THIRDif such day is a Termination Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator), for the benefit of each Purchaser Group, the entire remainder of the Collections not set aside pursuant to clause (b)(i) of this Section 1.4; provided, that if amounts are so set aside and held in trust on any Termination Day, then such previously set-aside amounts shall, to the extent representing a return on Capital, be Reinvested in accordance with clause (ii) above on the next day to occur that is not a Termination Day (if any); and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (w) amounts required to be Reinvested in accordance with clause (ii) above plus (x) the amounts that are required to be set aside pursuant to clause (i) above, pursuant to the proviso to clause (ii) above and pursuant to clause (iii) above, plus (y) the Seller’s Servicing Fees accrued and unpaid through such day.
(c) On the fifth (5th) Business Day of each calendar month, each Purchaser Agent will notify the Servicer by electronic mail of the amount of Discount accrued with respect to each portion of Capital during the previous Settlement Period. On each Settlement Date, the Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit into the account specified by each Purchaser Agent Collections held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to Section 1.4(b)(i) or 1.4(f) plus the amount of Collections then held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to Sections 1.4(b)(ii) and 1.4(b)(iii); provided, however, that if the Information Package delivered by the Servicer indicates a Purchased Interest in excess of 100%, then the amount of Collections not Reinvested pursuant to clause (b)(ii) shall be deposited into the account for each Purchaser maintained by the applicable Purchaser Agent as may be designated from time to time by such Purchaser Agent to the Seller and the Servicer on the date such Information Package is received and on each day thereafter to the extent the Purchased Interest exceeds 100%.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c) on each Settlement Date as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%: first, to the Servicer, the Servicing Fee, to the extent accrued and unpaid through the last day of the immediately preceding Settlement Period until such accrued fees are paid in full, to the extent not otherwise netted out from Collections by the Servicer; second, to the extent such amounts are then payable hereunder, to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Agent’s Purchaser Group), in payment in full of, all accrued Discount with respect to each portion of Capital maintained by such Purchasers (it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each Purchaser’s Capital); third, ratably to the Purchaser Agents and the Administrator, all accrued fees (including program fees) owing to the Purchasers (it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each such Purchaser’s Capital) and to the Administrator; fourth, if the Servicer has set aside amounts in respect of a reduction of the Aggregate Capital pursuant to clause (f) below, to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Agent’s Purchaser Group), in payment in full of the related reduction in Aggregate Capital; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each such Purchaser’s Capital; and fifth, to the Seller for its own account.
(ii) if such distribution occurs on a Termination Day or on any day on which the Purchased Interest exceeds 100%: first, to the Servicer, the Servicing Fee, to the extent accrued and unpaid through the last day of the immediately preceding Settlement Period until such accrued fees are paid in full, to the extent not otherwise netted out from Collections by the Servicer; second, to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Agent’s Purchaser Group), in payment in full of, all accrued Discount with respect to each portion of Capital maintained by such Purchasers (it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each Purchaser’s Capital); third, ratably to the Purchaser Agents and the Administrator, such accrued fees owing to the Purchasers (it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each Purchaser’s Capital) and to the Administrator; fourth, to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Agent’s Purchaser Group), in payment in full of each Purchaser’s Capital (or if such day is not a Termination Day but is a day on which the Purchased Interest exceeds 100%, the amount necessary to reduce the Purchased Interest to 100%) it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each Purchaser’s Capital; fifth, if the Aggregate Capital and accrued Aggregate Discount and fees with respect thereto have been reduced to zero (or the Aggregate Capital has been reduced to the extent necessary to cause the Purchased Interest not to exceed 100%), and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Purchasers, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other Aggregate Unpaids owed thereto by the Seller hereunder (other than contingent indemnification obligations); sixth, to pay all outstanding amounts owing under the Company Note; and seventh, to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or canceled as a result of (x) without duplication, any revision, cancellation, allowance, rebate, dilution, discount, or other adjustment (including, without limitation, an extension or adjustment made pursuant to the applicable Credit and Collection Guidelines) made by the Seller, the Servicer or any Originator, including in connection with the cancellation and reissuance of any Pool Receivable, or (y) any set-off or dispute between the Seller or any Originator and an Obligor (any such reduction or cancellation, a “Dilution”), in any such case, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction, adjustment, cancellation or dispute (which, in the case of a cancellation and reissuance of any Pool Receivable, shall be an amount equal to the full Outstanding Balance of the cancelled Pool Receivable) and shall, subject to Section 1.4(e)(v), (x) if such day is not a Termination Day, hold any Unreimbursed Servicer Advances, and all such amounts in trust for the benefit of each Purchaser Group and, on the following Settlement Date, apply such amounts in accordance with this Section 1.4 or (y) if such day is a Termination Day, within two (2) Business Days of such reduction or adjustment, pay from its own funds any and all such amounts in respect thereof to a Collection Account or the Concentration Account for the benefit of each Purchaser Group and for application pursuant to this Section 1.4;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III is not true with respect to any Pool Receivable a Collection of the full Outstanding Balance of such Pool Receivable, the Seller shall, subject to Section 1.4(e)(v), (1) if such day is not a Termination Day, hold any and all such amounts in trust for the benefit of each Purchaser Group and, on the following Settlement Date, apply such amounts in accordance with this Section 1.4 or (2) if such day is a Termination Day, within two (2) Business Days, pay any and all such amounts from its own funds in respect thereof to a Collection Account or the Concentration Account for the benefit of each Purchaser Group and for application pursuant to this Section 1.4 (Collections deemed to have been received pursuant to Sections 1.4(e)(i) or (ii) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable Law, all Collections received from an Obligor of any Pool Receivable shall be applied to the Pool Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment thereoffor application to specific Receivables;
(iv) FOURTH, if and to the extent the Administrator or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not paid to have been so received by the ServicerAdministrator or such Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator or such Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the Backup Servicer and extent that any Successor Servicer, as applicable, distribution from or on behalf of such Obligor is made in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment respect thereof;
(v) FIFTHif at any time before the Facility Termination Date the Seller is deemed to have received any Deemed Collection under Sections 1.4(e)(i) or (ii), so long as no Termination Day then exists, the Seller may satisfy its obligation to deliver the extent not paid amount of such Deemed Collections to a Collection Account or the Concentration Account by instead recalculating (or being deemed to have recalculated) the Purchased Interest by decreasing the Net Receivables Pool Balance by the Serviceramount of such Deemed Collections, so long as such adjustment does not cause the Purchased Interest to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;exceed 100%; and
(vi) SIXTH, if at any time the Seller satisfies in full its obligations hereunder with respect to the Servicer, in an amount equal to Deemed Collections (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for whether by payment to each Managing Agenta Collection Account or the Concentration Account and/or by reducing the Net Receivables Pool Balance), the Administrator, on behalf of the related LendersPurchasers, shall re-convey to the Seller the Pool Receivable(s) to which such Deemed Collection relates, without recourse and without any representation or warranty except that such Pool Receivable is free and clear of liens, security interests, charges and encumbrances created by the Administrator or any such Purchaser, and thereafter the Seller shall not sell any interest in an such Receivable to the Administrator on behalf of the Purchasers.
(f) At any time, the Seller may elect to cause a reduction of Capital in accordance with this clause (f). The Seller may do so as follows:
(i) the Seller shall deliver to the Administrator, each Purchaser Agent and the Servicer written notice in substantially the form of Annex C (the “Paydown Notice”) at least two Business Days’ prior to the date of such reduction for any reduction of Aggregate Capital, which notice shall include the amount equal to any accrued of such proposed reduction and unpaid Interest and Unused Fee for the proposed date on which such Payment Datereduction will commence;
(viiiii) EIGHTHon the proposed date of the commencement of such reduction and on each day thereafter, firstthe Servicer shall cause Collections not to be Reinvested until the amount thereof not so Reinvested shall equal the desired amount of the reduction of Aggregate Capital; and
(iii) the Servicer shall hold (or cause the Seller to set aside and hold) such Collections in trust for each Purchaser, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing AgentPurchaser Agent for the benefit of such Purchaser on the next Settlement Date, on behalf of and the related LendersAggregate Capital shall be deemed reduced in the amount to be paid to a Purchaser Agent only when in fact finally so paid; provided, an amount equal to the excess, if any, of Advances Outstanding over the lesser of that (ix) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment reduction (as if not a reduction to zero) shall be not less than $1,000,000 and shall be an integral multiple of $100,000, and the entire Aggregate Capital after giving effect to such Breakage Costs are notified reduction shall be not less than $10,000,000 (unless the entire Aggregate Capital shall have been reduced to zero); and (y) the Borrower by Seller shall choose a reduction amount, and the applicable Lender(s))date of commencement thereof, pro rata; provided, however, so that to the extent that (i) the Termination Date has not occurred practicable such reduction shall commence and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, conclude in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;same Settlement Period.
Appears in 4 contracts
Samples: Receivables Purchase Agreement (Vistra Corp.), Receivables Purchase Agreement (Vistra Corp.), Receivables Purchase Agreement (Vistra Corp.)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, after the occurrence and continuance of a Level 2 Ratings Event, if so requested by the Administrative Agent, segregate into a separate account in the name of the Borrower and approved by the Administrative Agent), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Borrower or received in any Lock-Box or Collection Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay (i) the purchase price for Receivables purchased by the Borrower in accordance with the terms of the Receivables Sale Agreement (each such release, a “Reinvestment”) or (ii) amounts owing by the Borrower to the Originators under the Subordinated Notes (each such release, a “Release”). On each Payment Settlement Date, the Servicer on behalf (or, following its assumption of control of the Borrower shall pay for receipt by Collection Accounts, the applicable Lender no later than 11:00 a.m. (New York City timeAdministrative Agent) to the following Personsshall, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts distribute Collections in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRSTfirst, to the BorrowerServicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of Servicing Fees payable for any prior Interest Period to the Transferred Loansextent the full amount owed has not been distributed to the Servicer);
(ii) SECONDsecond, to each Hedge CounterpartyLender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts owing that Hedge Counterparty or indemnified amounts payable under its respective Hedging Agreement Sections 5.03 and 13.01 in respect of any Hedge Transaction(ssuch payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for the payment thereof, but excluding, any prior Interest Period to the extent the Hedge Counterparty is such amount has not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amountsbeen distributed to such Lender or Credit Party;
(iii) THIRDthird, to the Servicer, as set forth in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
clause (ivx) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Serviceror (y) below, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;:
Appears in 4 contracts
Samples: Receivables Financing Agreement (DCP Midstream, LP), Receivables Financing Agreement (DCP Midstream, LP), Receivables Financing Agreement (DCP Midstream, LP)
Settlement Procedures. On each Payment Date, the Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. 1:00 p.m. (New York, New York City time) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Commitment Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;
Appears in 3 contracts
Samples: Fifth Amended and Restated Credit Agreement (Gladstone Investment Corporation\de), Fifth Amended and Restated Credit Agreement (Gladstone Investment Corporation\de), Credit Agreement (Gladstone Investment Corporation\de)
Settlement Procedures. (a) On each Payment Date, so long as no Event of Default has occurred and is continuing, the Servicer Collateral Manager shall direct the Collateral Custodian to pay pursuant to the latest Borrowing Base Certificate (and the Collateral Custodian shall make payment from the Interest Collection Account to the extent of Available Funds, in reliance on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City timeinformation set forth in such Borrowing Base Certificate) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a1) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian Custodian, in an amount equal to any accrued and unpaid Collateral Custodian Fee Fees; provided that, the aggregate amount payable pursuant to this Section 2.7(a)(1), Section 2.7(b)(1) and Collateral Custodian Expenses, if any, for the payment thereofSection 2.8(1) shall not exceed $100,000 per annum;
(vi2) SIXTH, pro rata to the Servicereach Lender, in an amount equal to (A) if such Lender’s share of the Servicer is Gladstone Management Corporation or Interest for the related Accrual Period and any of its Affiliates, its accrued and unpaid Servicing Interest for previous Accrual Periods, (B) such Lender’s Share of the Non-Usage Fee for the related Accrual Period and any unpaid Non-Usage Fees for previous Accrual Periods and (C) any unpaid Breakage Costs with respect to such Lender;
(3) pro rata to the Administrative Agent and each Lender, all fees and other amounts, including any Increased Costs and Structuring Fee, but other than the principal of Advances Outstanding and Administrative Expenses, then due to each such Person under this Agreement;
(4) pro rata to each Lender, if the Required Advance Reduction Amount is greater than zero, an amount necessary to reduce the Required Advance Reduction Amount to zero;
(5) after the end of the preceding Settlement Revolving Period, up to the Servicing Fee Limit Unfunded Exposure Account in an amount equal to Exposure Amount for such Settlement PeriodShortfall;
(6) pro rata to each applicable party, for to pay all other accrued and unpaid Administrative Expenses and Taxes; and
(7) (A) during a Default, to remain in the payment thereof and Interest Collection Account or (B) otherwise, its accrued and unpaid Servicing Fees any remaining amounts shall be distributed to (or as directed by) the Borrower (to be used for any purpose, including distribution to the end of the preceding Settlement Period for the payment thereof;Collateral Manager).
(viib) SEVENTHOn each Payment Date, so long as no Event of Default has occurred and is continuing, the Collateral Manager shall direct the Collateral Custodian to pay pursuant to the latest Borrowing Base Certificate (and the Collateral Custodian shall make payment from the Principal Collection Account to the extent of Available Funds, in reliance on the information set forth in such Borrowing Base Certificate) to the following Persons, the following amounts in the following order of priority:
(1) to the extent not paid pursuant to Section 2.7(a)(1), to the Administrative Agent for payment to each Managing Agent, on behalf of the related LendersCollateral Custodian, in an amount equal to any accrued and unpaid Interest Collateral Custodian Fees; provided that, the aggregate amount payable pursuant to Section 2.7(a)(1), this Section 2.7(b)(1) and Unused Fee for such Payment DateSection 2.8(1) shall not exceed $100,000 per annum;
(viii2) EIGHTH, first, to the extent not paid pursuant to Section 2.7(a)(2), pro rata to each Lender, in an amount equal to (A) such Lender’s share of available Principal Collectionsthe Interest for the related Accrual Period and any accrued and unpaid Interest for previous Accrual Periods, (B) such Lender’s share of the Non-Usage Fee for the related Accrual Period and second, any unpaid Non-Usage Fees for previous Accrual Periods and (C) any unpaid Breakage Costs with respect to such Lender;
(3) to the extent of available Interest Collectionsnot paid pursuant to Section 2.7(a)(3), pro rata to the Administrative Agent for payment and each Lender, all other fees and other amounts, including any Increased Costs and Structuring Fee, but other than the principal of Advances Outstanding and Administrative Expenses, then due to each Managing Agentsuch Person under this Agreement;
(4) to the extent not paid pursuant to Section 2.7(a)(4), on behalf of pro rata to each Lender, if the related LendersRequired Advance Reduction Amount is greater than zero, an amount necessary to reduce the Required Advance Reduction Amount to zero;
(5) during the Revolving Period, (x) to each Non-Extending Lender to pay Advances Outstanding in an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf Pro Rata Share of such Non-Renewing Lenders onlyExtending Lender and (y) the remainder as directed by the Collateral Manager, pro rata to (A) repay Advances Outstanding, (B) return cash to the Principal Collection Account for application in accordance with their the terms hereof and/or (C) unless a Default or Curable BDC Asset Coverage Event has occurred and is continuing, or after giving effect to such distribution the Availability is less than zero, to be distributed to (or as directed by) the Borrower (to be used for any purpose, including distribution to the Collateral Manager);
(6) after the end of the Revolving Period and to the extent not paid pursuant to Section 2.7(a)(5), to the Unfunded Exposure Account in an amount equal to Exposure Amount Shortfall;
(7) after the end of the Revolving Period or after the occurrence and during the continuation of a Curable BDC Asset Coverage Event, to the Lenders to pay the Advances Outstanding;
(ix8) to the extent not paid pursuant to Section 2.7(a)(6), pro rata to each applicable party to pay all other Administrative Expenses and Taxes; and
(9) NINTH(A) during a Default, to each Hedge Counterpartyremain in the Principal Collection Account or (B) otherwise, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;remaining amounts shall be distributed to (or as directed by) the Borrower (to be used for any purpose, including distribution to the Collateral Manager).
(xc) TENTHThe Collateral Manager may, in its sole discretion, direct the Collateral Custodian to make a payment to the Administrative Agent for Borrower from the Principal Collection Account on any Business Day other than a Payment Date if, both immediately prior and after giving effect to such payment (i) the Availability is greater than zero and (ii) no Default, Event of Default or Curable BDC Asset Coverage Event has occurred and is continuing.
(d) Subject to each Managing Agent, on behalf the satisfaction of the related Lendersconditions set forth in Section 3.2, the Collateral Manager may direct the Collateral Custodian to withdraw funds on deposit in the amount of unpaid Breakage Costs (other than Breakage Costs covered Principal Collection Account on any Business Day in clause (vii) above) with respect order to any prepayments made on reinvest such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, funds in Eligible Loans to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;be pledged hereunder.
Appears in 3 contracts
Samples: Loan and Security Agreement (New Mountain Finance Corp), Loan and Security Agreement (New Mountain Finance Corp), Loan and Security Agreement (New Mountain Finance Corp)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent), which shall be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are actually received by the Servicer or the Borrower or received in any Lock-Box or Collection Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay (i) the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement or (ii) amounts owing by the Borrower to the Originators under the Subordinated Notes (each such release, a “Release”). On each Payment Settlement Date, the Servicer on behalf (or, following its assumption of control of the Borrower shall pay for receipt by Collection Accounts, the applicable Lender no later than 11:00 a.m. (New York City timeAdministrative Agent) to the following Personsshall, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during distribute such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts Collections in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRSTfirst, to the BorrowerServicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of Servicing Fees payable for any prior Interest Period to the Transferred Loansextent such amount has not been distributed to the Servicer);
(ii) SECONDsecond, to each Hedge CounterpartyLender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest and Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts owing that Hedge Counterparty or indemnified amounts payable under its respective Hedging Agreement Sections 5.03 and 13.01 in respect of any Hedge Transaction(ssuch payments), plus, if applicable, the amount of any such Interest and Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for the payment thereof, but excluding, any prior Interest Period to the extent the Hedge Counterparty is such amount has not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amountsbeen distributed to such Lender or Credit Party;
(iii) THIRDthird, to the Serviceras set forth in clause (x), in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(ivy) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Serviceror (z) below, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;:
Appears in 3 contracts
Samples: Receivables Financing Agreement (CONSOL Energy Inc.), Receivables Financing Agreement, Sub Originator Sale Agreement, Purchase and Sale Agreement (CONSOL Energy Inc.), Receivables Financing Agreement (CONSOL Energy Inc.)
Settlement Procedures. On each Payment Date, (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on behalf a timely basis all information needed for such administration, including notice of the Borrower shall pay for receipt occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the applicable Lender no later than 11:00 a.m. (New York City time) to Seller or the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal CollectionsServicer:
(i) FIRSTset aside and hold in trust (and shall, to at the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect request of the Transferred Loans;
(iiAdministrator, segregate in a separate account approved by the Administrator) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereofIssuer, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end out of the preceding Settlement Period, up to the Servicing Fee Limit Amount for Issuer’s Share of such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTHCollections, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excessDiscount accrued through such day for each Portion of Capital and not previously set aside, if anysecond, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of Advances Outstanding over the lesser of (i) the Borrowing Base or Servicing Fee accrued through such day and not previously set aside,
(ii) the Facility Amountsubject to Section 1.4(f), together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any if such payment (as such Breakage Costs are notified day is not a Termination Day, remit to the Borrower by Seller, on behalf of the applicable Lender(s))Issuer, pro ratathe remainder of the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,
(iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer the entire remainder of the Issuer’s Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the Termination Date has not occurred Seller shall give the Administrator and the Servicer written notice in the form of Annex C (A) at least one Business Day prior to the date of such reduction for any reduction of Capital less than or equal to $20,000,000; (B) at least two Business Days prior to the date of such reduction for any reduction of Capital greater than $20,000,000 and less than or equal to $50,000,000; and (C) at least three Business Days prior to the date of such reduction for any reduction of Capital greater than $50,000,000, in each case such notice shall have been received by 3:00 p.m. New York City time on such date and shall include the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) Advances Outstanding exceed on the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf proposed date of the commencement of such Non-Renewing Lenders onlyreduction and on each day thereafter, pro rata in accordance with their Advances Outstanding;the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(ixiii) NINTHthe Servicer shall hold such Collections in trust for the Issuer, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agentthe Administrator on (1) solely with respect to any reduction described in subsections (f)(i)(B) or (f)(i)(C) the next Weekly Settlement Date, on behalf of the related Lenders, in the amount of unpaid Breakage Costs or (other than Breakage Costs covered in clause (vii) above2) with respect to any prepayments made on reduction described in subsection (f)(i)(A), such Payment Date Increased Costs, and/or Taxes other date with at least one (if any);
(xi1) ELEVENTH, Business Day prior written notice to the Swingline LenderAdministrator of such payment, for and the portion Capital shall be deemed reduced in the amount to be paid to the Administrator only when in fact finally so paid; provided, that the amount of the Obligations constituting unpaid principal any such reduction shall be not less than $1,000,000 and shall be an integral multiple of the Swing Advances;$100,000.
Appears in 3 contracts
Samples: Receivables Purchase Agreement (Ugi Corp /Pa/), Receivables Purchase Agreement (Ugi Corp /Pa/), Receivables Purchase Agreement (Ugi Corp /Pa/)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrator, segregate in a separate account designated by the Administrator, which shall be an account maintained and controlled by the Administrator unless the Administrator otherwise instructs in its sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Borrower or received in any Lock-Box Account the customer of record of which at the applicable Lock-Box Bank is the Borrower (each such Lock-Box Account, a “Lock-Box Account”); provided, however, that so long as each of the conditions precedent set forth in Section 3 of Exhibit II are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay (i) the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Sale Agreement or (ii) amounts owing by the Borrower to the Originators under the Subordinated Loans made by the Originators (each such release, a “Release”). On each Payment Settlement Date, the Servicer on behalf (or, following (x) its assumption of control of the Borrower shall pay for Lock-Box Accounts or (y) its receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (ipayable under any Pool Receivable pursuant to Section 4.4(a), (iithe Administrator) and (iii)shall, minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts distribute such Collections in the following order of priority:
(ai) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRSTduring the continuance of any Event of Default, to the BorrowerAdministrator, for the aggregate amount payment of fees (including upcosts and out-front, continuing or success feesof-pocket expenses payable by the Borrower under Section 6.4(a) received in respect to the extent such costs arise from the replacement of the Transferred LoansServicer with any successor Servicer(s), including, without limitation, any upfront charges, ongoing fees, deposits, and transition costs;
(ii) SECONDsecond, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), the Servicer for the payment thereofof the accrued Servicing Fees payable to it for the immediately preceding Interest Period (plus, but excludingif applicable, the amount of Servicing Fees payable to it for any prior Interest Period to the extent such amount has not been distributed to the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity AmountsServicer);
(iii) THIRDthird, to each Lender and other Credit Party (ratably, based on the Serviceramount then due and owing), all accrued and unpaid Interest and Fees due to such Lender and other Credit Party accrued during the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 1.10 and 3.1 in an respect of such payments), plus, if applicable, the amount equal of any such Interest and Fees (including any additional amounts or indemnified amounts payable under Sections 1.10 and 3.1 in respect of such payments) payable for any prior Interest Period to any Unreimbursed Servicer Advances, for the payment thereofextent such amount has not been distributed to such Lender or Credit Party;
(iv) FOURTHfourth, to the extent not paid by the Serviceras set forth in clause (x), to the Backup Servicer and any Successor Servicer(y) or (z) below, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;:
Appears in 3 contracts
Samples: Receivables Financing Agreement, Receivables Financing Agreement, Receivables Financing Agreement
Settlement Procedures. (a) The Servicer shall set aside and hold in trust in the Collection Accounts for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent in the name of the Borrower), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables (other than Foreign Currency Receivables) that are received by the Servicer or the Borrower or received in any Lock-Box or Collection Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.04 are satisfied on any date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay (x) the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Receivables Purchase Agreement or (y) amounts owing by the Borrower to any Originator under any Subordinated Notes (each such release of Collections, a “Reinvestment”). On each Payment Settlement Date, the Servicer on behalf (or, following its assumption of control of the Borrower shall pay for receipt by Collection Accounts, the applicable Lender no later than 11:00 a.m. (New York City timeAdministrative Agent) to the following Personsshall, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during distribute such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts Collections in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRSTfirst, to the BorrowerServicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of Servicing Fees payable for any prior Interest Period to the Transferred Loansextent such amount has not been distributed to the Servicer);
(ii) SECONDsecond, to each Hedge CounterpartyLender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts owing that Hedge Counterparty or indemnified amounts payable under its respective Hedging Agreement Sections 5.03 and 13.01 in respect of any Hedge Transaction(ssuch payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for the payment thereof, but excluding, any prior Interest Period to the extent the Hedge Counterparty is such amount has not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amountsbeen distributed to such Lender or Credit Party;
(iii) THIRDthird, to the Serviceras set forth in clause (x), in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(ivy) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Serviceror (z) below, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;:
Appears in 3 contracts
Samples: Receivables Financing Agreement (Concentrix Corp), Receivables Financing Agreement (Concentrix Corp), Receivables Financing Agreement (Concentrix Corp)
Settlement Procedures. (a) On each Payment Date, so long as no Event of Default has occurred and is continuing, the Servicer Collateral Manager shall direct the Collateral Custodian to pay pursuant to the latest Borrowing Base Certificate (and the Collateral Custodian shall make payment from the Interest Collection Account to the extent of Available Funds, in reliance on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City timeinformation set forth in such Borrowing Base Certificate) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a1) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian Custodian, in an amount equal to any accrued and unpaid Collateral Custodian Fee Fees; provided that, the aggregate amount payable pursuant to this Section 2.7(a)(1), Section 2.7(b)(1) and Collateral Custodian Expenses, if any, for the payment thereofSection 2.8(1) shall not exceed $100,000 per annum;
(vi2) SIXTH, pro rata to the Servicereach Lender, in an amount equal to (A) if such Lender’s share of the Servicer is Gladstone Management Corporation or Interest for the related Accrual Period and any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement PeriodInterest for previous Accrual Periods, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end such Lender’s Share of the preceding Settlement Period Non-Usage Fee for the payment thereofrelated Accrual Period and any unpaid Non-Usage Fees for previous Accrual Periods and (C) any unpaid Breakage Costs with respect to such Lender;
(vii3) SEVENTH, pro rata to the Administrative Agent for payment and each Lender, all fees and other amounts, including any Increased Costs and Structuring Fee, but other than the principal of Advances Outstanding, Commitment Reduction Fee and Administrative Expenses, then due to each Managing Agentsuch Person under this Agreement;
(4) pro rata to each Lender, on behalf of if the related LendersRequired Advance Reduction Amount is greater than zero, an amount necessary to reduce the Required Advance Reduction Amount to zero;
(5) pro rata to each Lender, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment DateCommitment Reduction Fee;
(viii6) EIGHTHafter the end of the Revolving Period, firstto the Unfunded Exposure Account in an amount equal to Exposure Amount Shortfall;
(7) pro rata to each applicable party, to pay all other accrued and unpaid Administrative Expenses and Taxes; and
(8) (A) during a Default, to remain in the Interest Collection Account or (B) otherwise, any remaining amounts shall be distributed to (or as directed by) the Borrower (to be used for any purpose, including distribution to the Collateral Manager).
(b) On each Payment Date, so long as no Event of Default has occurred and is continuing, the Collateral Manager shall direct the Collateral Custodian to pay pursuant to the latest Borrowing Base Certificate (and the Collateral Custodian shall make payment from the Principal Collection Account to the extent of available Principal CollectionsAvailable Funds, and secondin reliance on the information set forth in such Borrowing Base Certificate) to the following Persons, the following amounts in the following order of priority:
(1) to the extent not paid pursuant to Section 2.7(a)(1), to the Collateral Custodian, in an amount equal to any accrued and unpaid Collateral Custodian Fees; provided that, the aggregate amount payable pursuant to Section 2.7(a)(1), this Section 2.7(b)(1) and Section 2.8(1) shall not exceed $100,000 per annum;
(2) to the extent not paid pursuant to Section 2.7(a)(2), pro rata to each Lender, in an amount equal to (A) such Lender’s share of available the Interest Collectionsfor the related Accrual Period and any accrued and unpaid Interest for previous Accrual Periods, (B) such Lender’s share of the Non-Usage Fee for the related Accrual Period and any unpaid Non-Usage Fees for previous Accrual Periods and (C) any unpaid Breakage Costs with respect to such Lender;
(3) to the extent not paid pursuant to Section 2.7(a)(3), pro rata to the Administrative Agent for payment and each Lender, all other fees and other amounts, including any Increased Costs and Structuring Fee, but other than the principal of Advances Outstanding, Commitment Reduction Fee and Administrative Expenses, then due to each Managing Agentsuch Person under this Agreement;
(4) to the extent not paid pursuant to Section 2.7(a)(4), on behalf of pro rata to each Lender, if the related LendersRequired Advance Reduction Amount is greater than zero, an amount necessary to reduce the Required Advance Reduction Amount to zero;
(5) to the extent not paid pursuant to Section 2.7(a)(5), pro rata to each Lender, in an amount equal to any accrued and unpaid Commitment Reduction Fee;
(6) during the Revolving Period, (x) to each Non-Extending Lender to pay Advances Outstanding in an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf Pro Rata Share of such Non-Renewing Lenders onlyExtending Lender and (y) the remainder as directed by the Collateral Manager, pro rata to (A) repay Advances Outstanding, (B) return cash to the Principal Collection Account for application in accordance with their the terms hereof and/or (C) unless a Default or Curable BDC Asset Coverage Event has occurred and is continuing, or after giving effect to such distribution the Availability is less than zero, to be distributed to (or as directed by) the Borrower (to be used for any purpose, including distribution to the Collateral Manager);
(7) after the end of the Revolving Period and to the extent not paid pursuant to Section 2.7(a)(6), to the Unfunded Exposure Account in an amount equal to Exposure Amount Shortfall;
(8) after the end of the Revolving Period or after the occurrence and during the continuation of a Curable BDC Asset Coverage Event, to the Lenders to pay the Advances Outstanding;
(ix9) NINTHto the extent not paid pursuant to Section 2.7(a)(7), pro rata to each applicable party to pay all other Administrative Expenses and Taxes; and
(10) (A) during a Default, to each Hedge Counterpartyremain in the Principal Collection Account or (B) otherwise, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;remaining amounts shall be distributed to (or as directed by) the Borrower (to be used for any purpose, including distribution to the Collateral Manager).
(xc) TENTHThe Collateral Manager may, in its sole discretion, direct the Collateral Custodian to make a payment to the Administrative Agent for Borrower from the Principal Collection Account on any Business Day other than a Payment Date if, both immediately prior and after giving effect to such payment (i) the Availability is greater than zero and (ii) no Default, Event of Default or Curable BDC Asset Coverage Event has occurred and is continuing.
(d) Subject to each Managing Agent, on behalf the satisfaction of the related Lendersconditions set forth in Section 3.2, the Collateral Manager may direct the Collateral Custodian to withdraw funds on deposit in the amount of unpaid Breakage Costs (other than Breakage Costs covered Principal Collection Account on any Business Day in clause (vii) above) with respect order to any prepayments made on reinvest such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, funds in Eligible Loans to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;be pledged hereunder.
Appears in 2 contracts
Samples: Loan and Security Agreement (New Mountain Finance Corp), Loan and Security Agreement (New Mountain Finance Corp)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, segregate in a separate account approved by the Administrative Agent, which shall be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Borrower or received in any Lock-Box or Collection Account; provided, however, that so long as each of the conditions precedent set forth in Section 5.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay (i) the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement or (ii) amounts owing by the Borrower to the Originators under the Subordinated Notes (each such release, a “Release”). On each Payment Settlement Date, the Servicer on behalf (or, following its assumption of control of the Borrower shall pay for receipt by Collection Accounts, the applicable Lender no later than 11:00 a.m. (New York City timeAdministrative Agent) to the following Personsshall, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during distribute such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts Collections in the following order of priority:
(ai) During first, to the Revolving PeriodServicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer);
(ii) second, to the Lender and each other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to the Lender and each such Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 4.03 and 11.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 4.03 and 11.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to the Lender or each such Credit Party;
(iii) third, as set forth in clause (A), (B) or (C) below, as applicable:
(A) prior to the occurrence of the Termination Date, to the extent that a Borrowing Base Deficit exists on such date or the Aggregate Capital on such date exceeds the Facility Limit, to the Lender for the payment of a portion of the Aggregate Capital at such time, in an aggregate amount equal to the amount necessary to reduce the Borrowing Base Deficit to zero ($0) or the amount necessary to reduce the Aggregate Capital to an amount equal to or less than the Facility Limit, as applicable;
(B) on and after the occurrence of the Termination Date, to the Lender for the payment in full of the aggregate outstanding Capital of the Lender at such time; or
(C) prior to the occurrence of the Termination Date, at the election of the Borrower from time to time and in accordance with Section 2.02(c), to the payment of all or any portion of the outstanding Capital of the Lender at such time;
(iv) fourth, to each Credit Party, the Affected Persons and the Borrower Indemnified Parties (ratably, based on the amount due and owing at such time), for the payment of all other Borrower Obligations then due and owing by the Borrower to each such Credit Party, the Affected Persons and the Borrower Indemnified Parties; and
(v) fifth, the balance, if any, to be paid to the Borrower for its own account, including, without limitation, the payment of any amounts pursuant to a Release.
(b) All payments or distributions to be made by the Servicer, the Borrower and any other Person to the Lender (or their respective related Affected Persons and the Borrower Indemnified Parties) shall be paid or distributed to the Administrative Agent at its Administrative Agent’s Account. The Administrative Agent, upon its receipt in the applicable Administrative Agent’s Account of any such payments or distributions, shall distribute such amounts to the Lender, Affected Persons and the Borrower Indemnified Parties, as applicable; provided that if the Administrative Agent shall have received insufficient funds to pay all of the above amounts in full on any such date, the Administrative Agent shall pay such amounts to the Lender, Affected Persons and the Borrower Indemnified Parties in accordance with the priority of payments set forth above, and with respect to any such category above for which there are insufficient funds to pay all amounts owing on such date, ratably (based on the amounts in such categories owing to each such Person) among all such Persons entitled to payment thereof.
(c) If and to the extent the Administrative Agent, the Lender, any Affected Person or any Borrower Indemnified Party shall be required for any reason to pay over to any Person any amount owed and received on its behalf hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Borrower and, accordingly, the Administrative Agent, the Lender, such Affected Person or such Borrower Indemnified Party, as the case unless otherwise specified belowmay be, applying Interest Collections first, and then Principal Collectionsshall have a claim against the Borrower for such amount.
(d) For the purposes of this Section 3.01:
(i) FIRSTif on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, to rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, credit memo, discount or other adjustment made by the Borrower, any Originator, the aggregate Servicer or any Affiliate of the Servicer, or any setoff, counterclaim or dispute between the Borrower or any Affiliate of the Borrower, an Originator or any Affiliate of an Originator, or the Servicer or any Affiliate of the Servicer, and an Obligor, the Borrower shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of fees such reduction or adjustment and, if an Event of Default or Unmatured Event of Default exists or if the Purchase and Sale Termination Date has occurred and, in each case, if an Originator has made a related payment in cash to the Borrower pursuant to Section 3.2(c) of the Purchase and Sale Agreement, the Borrower shall immediately pay (including up-front, continuing or success feescause the applicable Originator to pay pursuant to Section 3.3 of the Purchase and Sale Agreement) received any and all such amounts in respect thereof to a Collection Account (or as otherwise directed by the Administrative Agent at such time) for the benefit of the Transferred LoansCredit Parties for application pursuant to Section 3.01(a); provided that if a Pool Receivable’s “Purchase Price” has been reduced by the full Outstanding Balance thereof pursuant to Section 3.3(a) of the Purchase and Sale Agreement and such reduction has been made in accordance with Section 3.3(c) of the Purchase and Sale Agreement, then the Borrower shall deliver to the applicable Originator any payments thereafter received by the Borrower on account of such Pool Receivable’s Outstanding Balance in accordance with the Borrower’s obligations under the proviso to Section 3.3(a) of the Purchase and Sale Agreement;
(ii) SECONDif on any day any of the representations or warranties in Section 6.01 is not true with respect to any Pool Receivable, the Borrower shall be deemed to have received on such day a Collection of such Pool Receivable in full and, if an Event of Default or Unmatured Event of Default exists or if the Purchase and Sale Termination Date shall have occurred and, in each Hedge Counterpartycase, any amounts owing that Hedge Counterparty under its respective Hedging Agreement if an Originator has made a related payment in respect cash to the Borrower pursuant to Section 3.2(c) of any Hedge Transaction(s)the Purchase and Sale Agreement, the Borrower shall immediately pay the amount of such deemed Collection to a Collection Account (or as otherwise directed by the Administrative Agent at such time) for the payment thereof, but excluding, benefit of the Credit Parties for application pursuant to the extent the Hedge Counterparty is not the same Person Section 3.01(a) (Collections deemed to have been received pursuant to Section 3.01(d) are hereinafter sometimes referred to as the Administrative Agent, any Swap Breakage and Indemnity Amounts“Deemed Collections”);
(iii) THIRDexcept as provided in clauses (i) or (ii) above or otherwise required by Applicable Law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the ServicerReceivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in an amount equal writing its payment for application to any Unreimbursed Servicer Advances, for the payment thereof;specific Receivables; and
(iv) FOURTH, if and to the extent the Administrative Agent, the Lender, any Affected Person or any Borrower Indemnified Party shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not paid to have been so received by such Person but rather to have been retained by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee Borrower and, if anyaccordingly, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for such Person shall have a claim against the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount Borrower for such Settlement Periodamount, for the payment thereof payable when and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one any distribution from or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata Obligor is made in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;thereof.
Appears in 2 contracts
Samples: Receivables Financing Agreement (Waystar Holding Corp.), Receivables Financing Agreement (Waystar Holding Corp.)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, upon the occurrence and during the continuance of a Ratings Event, if so requested by the Administrative Agent, promptly upon (but in no event later than one (1) Business Day after) receipt of such request, segregate in a separate account approved by the Administrative Agent, which shall be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Borrower or received in any Lock-Box or Collection Account; provided, however, that so long as each of the conditions precedent set forth in Section 5.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to (i) pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreements or (ii) make any Restricted Payment permitted by Section 7.01(r) (each such release, a “Release”). On each Payment Settlement Date, the Servicer on behalf (or, following its assumption of control of the Borrower shall pay for receipt by Collection Accounts, the applicable Lender no later than 11:00 a.m. (New York City timeAdministrative Agent) to the following Personsshall, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during distribute such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts Collections in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRSTfirst, to the BorrowerServicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of Servicing Fees payable for any prior Interest Period to the Transferred Loansextent such amount has not been distributed to the Servicer);
(ii) SECONDsecond, to each Hedge CounterpartyLender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts owing that Hedge Counterparty or indemnified amounts payable under its respective Hedging Agreement Sections 4.03 and 12.01 in respect of such payments), plus, if applicable, the amount of any Hedge Transaction(ssuch Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 4.03 and 12.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (x), (y) or (z) below, as applicable:
(A) prior to the occurrence of the Termination Date, to the extent that a Borrowing Base Deficit exists on such date, to the Lenders (ratably, based on the aggregate outstanding Capital of each Lender at such time) for the payment of a portion of the outstanding Aggregate Capital at such time, in an aggregate amount equal to the amount necessary to reduce the Borrowing Base Deficit to zero ($0);
(B) on and after the occurrence of the Termination Date, to each Lender (ratably, based on the aggregate outstanding Capital of each Lender at such time) for the payment in full of the aggregate outstanding Capital of such Lender at such time; or
(C) prior to the occurrence of the Termination Date, at the election of the Borrower from time to time and in accordance with Section 2.02(d), to the payment of all or any portion of the outstanding Capital of the Lenders at such time (ratably, based on the aggregate outstanding Capital of each Lender at such time);
(iv) fourth, to the Credit Parties, the Affected Persons and the Borrower Indemnified Parties (ratably, based on the amount due and owing at such time), for the payment of all other Borrower Obligations then due and owing by the Borrower to the Credit Parties, the Affected Persons and the Borrower Indemnified Parties; and
(v) fifth, the balance, if any, to be paid to the Borrower for its own account.
(b) All payments or distributions to be made by the Servicer, the Borrower and any other Person to the Lenders (or their respective related Affected Persons and the Borrower Indemnified Parties) shall be paid or distributed to the related Group Agent at its Group Agent’s Account. Each Group Agent, upon its receipt in the applicable Group Agent’s Account of any such payments or distributions, shall distribute such amounts to the applicable Lenders, Affected Persons and the Borrower Indemnified Parties within its Group ratably; provided, that if such Group Agent shall have received insufficient funds to pay all of the above amounts in full on any such date, such Group Agent shall pay such amounts to the applicable Lenders, Affected Persons and the Borrower Indemnified Parties within its Group in accordance with the priority of payments set forth above, and with respect to any such category above for which there are insufficient funds to pay all amounts owing on such date, ratably (based on the amounts in such categories owing to each such Person in such Group) among all such Persons in such Group entitled to payment thereof, but excluding, .
(c) If and to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRDCredit Party, any Affected Person or any Borrower Indemnified Party shall be required for any reason to the Servicer, in an amount equal pay over to any Unreimbursed Servicer AdvancesPerson any amount received on its behalf hereunder, for the payment thereof;
(iv) FOURTH, such amount shall be deemed not to the extent not paid have been so received but rather to have been retained by the ServicerBorrower and, to accordingly, the Backup Servicer and any Successor ServicerAdministrative Agent, such Credit Party, such Affected Person or such Borrower Indemnified Party, as applicablethe case may be, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for shall have a claim against the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount Borrower for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;amount.
Appears in 2 contracts
Samples: Receivables Financing Agreement (OLIN Corp), Receivables Financing Agreement (OLIN Corp)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which shall be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Seller or received in any Lock-Box or Collection Account or in any HSBC Exception Account; provided, however, that so long as each of the conditions precedent set forth in Section 5.03 are satisfied on such date, the Servicer may release to the Seller from such Collections the amount (if any) necessary to pay (i) the purchase price for Receivables purchased by the Seller on such date in accordance with the terms of the applicable Purchase and Sale Agreement or (ii) amounts owing by the Seller to any Originator under any Intercompany Loan Agreement (each such release, a “Release”). On each Payment Settlement Date, the Servicer on behalf (or, following its assumption of control of the Borrower shall pay for receipt by Collection Accounts pursuant to Section 8.03, the applicable Lender no later than 11:00 a.m. (New York City timeAdministrative Agent) to the following Personsshall, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during distribute such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts Collections in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRSTfirst, to the BorrowerServicer for the payment of the accrued Servicing Fees payable for the immediately preceding Yield Period (plus, if applicable, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of Servicing Fees payable for any prior Yield Period to the Transferred Loansextent such amount has not been distributed to the Servicer);
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTHsecond, to the Administrative Agent for payment distribution to each Managing AgentPurchaser (ratably, based on behalf of the amount then due and owing each Purchaser and any related LendersPurchaser Party), in an amount equal to any all accrued and unpaid Interest Yield, Fees and Unused Fee Breakage Fees due to such Purchaser and related Purchaser Party for the immediately preceding Yield Period (including any additional amounts or indemnified amounts payable under Sections 4.03 and 12.01 in respect of such Payment Datepayments), plus, if applicable, the amount of any such Yield, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 4.03 and 12.01 in respect of such payments) payable for any prior Yield Period to the extent such amount has not been distributed to such Purchaser or Purchaser Party;
(viiiiii) EIGHTHthird, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered set forth in clause (viix), (y) aboveor (z) with respect to any prepayments made on such Payment Date Increased Costsbelow, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;as applicable:
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Centric Brands Inc.), Receivables Purchase Agreement (Centric Brands Inc.)
Settlement Procedures. On each Payment Date, (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on behalf a timely basis all information needed for such administration, including notice of the Borrower shall pay for receipt occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the applicable Lender no later than 11:00 a.m. (New York City time) to Seller or the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal CollectionsServicer:
(i) FIRSTset aside and hold in trust (and shall, to at the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect request of the Transferred Loans;
(iiAdministrator, segregate in a separate account approved by the Administrator) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereofbenefit of each Purchaser Group, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any out of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTHCollections, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excessAggregate Discount accrued through such day for each Portion of Capital and not previously set aside, if anysecond, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of Advances Outstanding over each Purchasers’ Share of the lesser of (i) the Borrowing Base or Servicing Fee accrued through such day and not previously set aside,
(ii) the Facility Amountsubject to Section 1.4(f), together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any if such payment (as such Breakage Costs are notified day is not a Termination Day, remit to the Borrower by Seller, ratably, on behalf of each Purchaser Group, the applicable Lender(s))remainder of such Collections. Such remainder shall, pro ratato the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that (x) in the case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to its Purchaser Agent of either its refusal, pursuant to Section 1.12, to extend its Commitment hereunder (an “Exiting Purchaser”) then in either case (x) or (y), above, such Collections shall not be reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii), below.
(iii) if such day is a Termination Day (or any day following the provision of a Declining Notice or an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser an amount equal to such Purchaser’s ratable share of such Collections based on its Capital; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice, as the case may be, until the date such Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Declining Conduit Purchaser’s or Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of a Declining Notice or an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and the Majority Purchaser Agents (or in the case of a Declining Notice or an Exiting Notice, such Declining Notice or Exiting Notice, as the case may be, has been revoked by the related Declining Conduit Purchaser or Exiting Purchaser, respectively and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Capital (or the Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably in accordance with each Purchaser’s Capital, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of Declining Notice or Exiting Notice, as the case may be, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into each applicable Purchaser’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), (x) on each Monthly Settlement Date in the case of Collections held for each Purchaser with respect to such Purchaser’s Portion(s) of Capital pursuant to clause (b)(i) and (y) on each Weekly Settlement Date, in the case of Collections then held for such Purchaser pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if FleetCor or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified FleetCor (or such Affiliate) that such right is revoked, FleetCor (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the aggregate of each Purchasers’ Share of the Servicing Fee.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Capital maintained by such Purchasers and accrued Fees (other than Servicing Fees); it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Monthly Settlement Date) in payment in full of the aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first if FleetCor or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second to each Purchaser Agent ratably (based on the aggregate accrued and unpaid Discount payable to all Purchasers at such time) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third to each Purchaser Agent ratably according to the aggregate of the Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the first and second clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Discount and Capital, respectively, fourth, if the Aggregate Capital and accrued Aggregate Discount with respect to each Portion of Capital for all Purchaser Groups have been reduced to zero, and the Purchasers’ Share of all accrued Servicing Fees payable to the Servicer (if other than FleetCor or an Affiliate thereof) have been paid in full, to each Purchaser Group ratably, based on the amounts payable to each (for the benefit of the Purchasers within such Purchaser Group), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder and, fifth, to the Servicer’s own account (if the Servicer is FleetCor or an Affiliate thereof) in payment in full of the aggregate of the Purchasers’ Share of all accrued Servicing Fees. After the Aggregate Capital, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer or any other Person (including, if applicable, the originator of such Receivable), or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and shall immediately pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4;
(ii) if on any day any of the representations or warranties in Sections 1(j) or 3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full and shall immediately pay any and all such amounts to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to this Section 1.4 (Collections deemed to have been received pursuant to clause (i) or (ii) of this paragraph (e) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) except as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital) the Seller may do so as follows:
(i) the Termination Date has not occurred Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex F (each, a “Paydown Notice”) (A) at least one Business Day prior to the date of such reduction for any reduction of the Aggregate Capital less than or equal to $15,000,000 (or such greater amount as agreed to by the Administrator and the Majority Purchaser Agents) and (B) at least 3 Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $15,000,000, and each such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) Advances Outstanding exceed on the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf proposed date of commencement of such Non-Renewing Lenders onlyreduction and on each day thereafter, pro rata in accordance with their Advances Outstanding;the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(ixiii) NINTHthe Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Capital, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) on behalf the next Weekly Settlement Date with respect to any Portions of Capital maintained by such Purchaser immediately following the related Lenderscurrent Yield Period, and the Aggregate Capital (together with the Capital of any related Purchaser) shall be deemed reduced in the amount to be paid to such Purchaser (or its related Purchaser Agent for the benefit of unpaid Breakage Costs such Purchaser) only when in fact finally so paid; provided, that:
(other A) the amount of any such reduction shall be not less than Breakage Costs covered in clause $100,000 for each Purchaser Group and shall be an integral multiple of $100,000, and the entire Aggregate Capital after giving effect to such reduction shall be not less than $20,000,000; and
(vii) aboveB) with respect to any prepayments made on such Payment Date Increased CostsPortion of Capital, and/or Taxes (if any);
(xi) ELEVENTHthe Seller shall choose a reduction amount, and the date of commencement thereof, so that to the Swingline Lender, for extent practicable such reduction shall commence and conclude in the portion of the Obligations constituting unpaid principal of the Swing Advances;same Yield Period.
Appears in 2 contracts
Samples: Receivables Purchase Agreement, Receivables Purchase Agreement (Fleetcor Technologies Inc)
Settlement Procedures. On (a) Collection of the Pool Receivables shall be administered by the Servicers in accordance with the terms of this Agreement. Each Seller shall provide to the Servicers on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Assets Coverage Percentage.
(b) Each Applicable Servicer shall, on each Payment Dateday on which Collections of Pool Receivables are received (or deemed received) by a Seller or Servicer, transfer (or cause to be transferred) such Collections from the Lock-Box Accounts and deposit (or cause to be deposited) such Collections into a Collection Account, except as otherwise permitted pursuant to Section 4.3(a). With respect to all Collections on deposit in the Collection Accounts on such day, the Servicer Servicers shall:
(i) set aside and maintain in the Collection Accounts for the benefit of the Purchaser (and, in the case of clause fourth below, the other applicable Purchaser Parties, subject to their right to receive such amounts solely in accordance with the priorities for payment set forth in Section 1.6(d) below), out of such Collections, first an amount equal to all Discount accrued through such day and not previously set aside, second, an amount equal to the sum of the Used Fees, Unused Fees and Breakage Costs accrued through such day and not previously set aside, third, to the extent funds are available therefor, an amount equal to the Servicing Fee accrued through such day and not previously set aside and fourth, to the extent funds are available therefor, any other amounts (other than return of Capital) owed to any Purchaser Party pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4 and not previously set aside;
(ii) subject to Section 1.6(f), if such day is not a Termination Day, remit to the Sellers, on behalf of the Borrower shall pay for receipt by Purchaser, the applicable Lender no later than 11:00 a.m. remainder of such Collections. Such remainder shall, (New York City timex) to the following Personsextent representing a return of Capital, from be automatically reinvested in Purchased Assets and other proceeds with respect thereto and (iy) the Collection Account, to the extent not representing a return of available fundsCapital, be paid (iion behalf of the Purchaser) Servicer Advancesto the Sellers in respect of the Deferred Purchase Price for the Purchased Assets; provided, however, that if, after giving effect to such Reinvestment, the Purchased Assets Coverage Percentage would exceed 100%, then the Servicers shall set aside and maintain in the Collection Accounts for the benefit of the Purchaser in accordance with clause (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (below the sum portion of such amounts described in clauses remaining Collections that, together with any other Collections set aside pursuant to this clause (iii), equals the amount necessary to reduce the Purchased Assets Coverage Percentage to 100% (ii) and or, if all such remaining Collections are not sufficient to reduce the Purchased Assets Coverage Percentage to 100%, then all such remaining Collections shall be so set aside for the benefit of the Purchaser), rather than remitting all of such remaining Collections to the Sellers for Reinvestment or for payment of the Deferred Purchase Price;
(iii) if such day is a Termination Day, set aside and maintain in the Collection Account for the benefit of the Purchaser Parties the entire remainder of such Collections; and
(iv) subject to Section 1.6(f), minus pay to the Sellers (on behalf of the Purchaser) for the Sellers’ own accounts and in payment of the Deferred Purchase Price for the Purchased Assets, any Collections in excess of: (x) amounts required to be deposited to the Revolver Loan Funding Accounts reinvested in accordance with Section 2.14 below being the “Available Collections”clause (ii) above, plus (y) the following amounts that are required to be set aside pursuant to clause (i) above, pursuant to the proviso to clause (ii) above and pursuant to clause (iii) above, plus (z) all reasonable and appropriate out-of-pocket costs and expenses of the Servicers for servicing, collecting and administering the Pool Receivables.
(c) On each Settlement Date, each Applicable Servicer shall (i) deposit into the applicable Purchaser’s Account (or such other account designated by the Agent) all Collections held on deposit in each Collection Account for the benefit of the Purchaser Parties pursuant to Section 1.6(b) and Section 1.6(f) and (ii) deposit to each Servicer’s own account, from Collections held on deposit in the Collection Account pursuant to clause third of Section 1.6(b)(i) in respect of the accrued Servicing Fee, an amount equal to such Servicer’s portion of such accrued Servicing Fee; provided, however, that no amounts shall be payable to Garland under clause (ii) above.
(d) Upon receipt of funds deposited into any of the Purchaser’s Accounts pursuant to Section 1.6(c), the Agent shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day, such funds shall be distributed in the following order of priority:: first to the Purchaser in payment in full of all unpaid Discount accrued during the most recently ended Discount Accrual Period, second to the Purchaser in payment in full of all unpaid Used Fees, Unused Fees and Breakage Costs accrued during the most recently ended Discount Accrual Period, third to the Purchaser in payment of outstanding Capital (and accrued Discount thereon) to the extent that funds have been set aside for such purpose pursuant to Section 1.6(f), fourth to the Purchaser, the Agent and any other Purchaser Party in payment in full of any other amounts owed thereto pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4 and fifth, any remaining amounts shall be paid to the Purchaser in payment of outstanding Capital; and
(aii) During if such distribution occurs on a Termination Day, such funds shall be distributed in the Revolving Periodfollowing order of priority: first to the Purchaser in payment in full of all accrued and unpaid Discount, second to the Purchaser in payment in full of all accrued and unpaid Used Fees, Unused Fees and Breakage Costs, third to the Purchaser in payment in full of all outstanding Capital, and fourth to the Purchaser, the Agent and any other Purchaser Party in each case unless otherwise specified belowpayment in full of any other amounts owed thereto by any Seller or any Servicer hereunder (including, applying Interest without limitation, pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4) or under any other Transaction Document. After the occurrence of the Final Payout Date, all additional Collections first, and then Principal Collectionswith respect to the Purchased Assets shall be paid to the Sellers for their own accounts in payment of the Deferred Purchase Price for the Purchased Assets.
(e) For the purposes of this Section 1.6:
(i) FIRSTif on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, to the Borrowerdamaged, rejected, returned, repossessed or foreclosed goods or services, or any discount, rebate, credit, counterclaim, billing error or other adjustment made by any Seller, Originator or Servicer, or any setoff or dispute between any Seller, Originator or Servicer and any Obligor, the aggregate Seller of such Pool Receivable shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of fees (including up-front, continuing such reduction or success fees) received in respect of the Transferred Loansadjustment;
(ii) SECOND, to each Hedge Counterparty, if on any amounts owing that Hedge Counterparty under its respective Hedging Agreement day any of the representations or warranties in respect of any Hedge Transaction(sparagraphs (e), for the payment thereof, but excluding, to the extent the Hedge Counterparty (f) or (k) of Section 1 of Exhibit III is not true with respect to any Pool Receivable, the same Person as the Administrative Agent, any Swap Breakage and Indemnity AmountsSeller of such Pool Receivable shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) THIRDIf an Obligor makes a payment but does not designate the Receivable to which such payment applies, then the Applicable Servicer shall contact such Obligor promptly in order to determine to which Receivable such payment relates; provided, that if the Obligor does not direct the Applicable Servicer to apply such payment to a particular Receivable or Receivables within thirty (30) days after such payment has been received in a Lock-Box Account or by the Applicable Servicer, then, except as otherwise required by applicable law or the relevant Contract, such payment shall be applied to the ServicerReceivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable; and
(iv) if and to the extent the Agent, the Purchaser or any other Indemnified Party shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller of the relevant Pool Receivable and, accordingly, the Agent or the Purchaser, as the case may be, shall have a claim against such Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time a Seller shall wish to cause the reduction of the Aggregate Capital (in whole or in part), such Seller may do so as follows:
(i) such Seller shall give the Agent at least (x) one (1) Business Day’s prior written notice thereof in the case of any reduction of the aggregate U.S. Capital or (y) one (1) Business Day’s prior written notice in the case of any reduction of the aggregate CAD Capital, EUR Capital or GBP Capital, in either case, in the form of Annex C (each, a “Paydown Notice”) setting forth the proposed amount of such reduction, the proposed date on which such reduction will commence (the “Paydown Date”) and the Approved Currency of the Capital to be reduced;
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections in the applicable Approved Currency with respect to the Capital or portion thereof to be reduced (including to any related Discount) not to be reinvested or used to pay the Deferred Purchase Price until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Applicable Servicer shall hold such Collections in a Collection Account for the benefit of the Purchaser, for payment to the Purchaser’s Account on the next Settlement Date (and in the case of a reduction of the entire Investment, the Servicers shall hold in the Collection Accounts for payment on such date an amount equal to any Unreimbursed Servicer Advances, for all other obligations of the payment thereof;
(iv) FOURTH, Sellers or Servicers to the extent not Purchaser, the Agent and each other Purchaser Party hereunder) in accordance with Section 1.6(c), and the Aggregate Capital shall be deemed reduced in the amount to be paid by the Servicer, to the Backup Servicer Purchaser’s Account only when in fact finally so paid; provided that, the amount of any such reduction shall be not less than (A) one million U.S. Dollars ($1,000,000) or an integral multiple of one hundred thousand Dollars ($100,000) in excess thereof for reductions of U.S. Capital, (B) one million Euros (€1,000,000) or an integral multiple of one hundred thousand Euros (€100,000) in excess thereof for reductions of Euro Capital, (C) one million Canadian Dollars (CAD 1,000,000) or an integral multiple of one hundred thousand Canadian Dollars (CAD 100,000) in excess thereof for reductions of CAD Capital, and any Successor Servicer(D) one million GBP (£1,000,000) or an integral multiple of one hundred thousand GBP (£100,000) in excess thereof for reductions of GBP Capital, in each case, unless the aggregate U.S. Capital, Euro Capital, CAD Capital or GBP Capital, as applicable, in an amount equal shall have been reduced to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;zero.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Manitowoc Co Inc), Receivables Purchase Agreement (Manitowoc Co Inc)
Settlement Procedures. On (a) As set forth in the Monthly Report, on each Payment Date, the Servicer on behalf Borrower (or, following its assumption of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) exclusive control of the Collection Account, the Collateral Agent) shall withdraw Available Funds and any Excess Reserve Amount and investment earnings on amounts on deposit in the Collection Account from the Collection Account and allocate and distribute such amounts to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts applicable Person in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the BorrowerHedge Counterparty, the aggregate an amount equal to any Hedge Costs (exclusive of fees termination payments) and any such Hedge Costs (including up-front, continuing or success feesexclusive of termination payments) received in respect of the Transferred Loans;unpaid from any prior Payment Date.
(ii) SECOND, to each Hedge Counterpartypari passu, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iiiA) THIRD, to the Servicer, in an amount equal to any Unreimbursed accrued and unpaid Servicing Fees due in respect of such Payment Date and any Servicing Fees unpaid from any prior Payment Date; provided, however, if the Servicer Advances, for has been replaced pursuant to Section 6.12 such amount shall not exceed the payment thereof;
Capped Servicing Fee; (ivB) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Servicer, if it has become the Successor Servicer, any Transition Expenses; (C) to the Backup Servicer, so long as applicableit has not become the Successor Servicer hereunder, in an amount equal to any accrued and unpaid Backup Servicing Fee anddue in respect of such Payment Date, if anyany unpaid Backup Servicing Fee from any prior Payment Date, any reasonable out-of-pocket expenses incurred by the Backup Servicer up to $17,000 monthly; and (D) any accrued and unpaid Transition Costs, Indemnified Amounts owed to the Backup Servicer Expenses (including in its capacity as Successor Servicer) up to $17,000 monthly;
(iii) THIRD, to the Lenders, pro rata, an amount equal to the sum of any accrued and Market Servicing Fee Differentialunpaid (A) Interest (up to an amount not exceeding the Interest Cap), (B) Yield, and (C) any Increased Costs and any Additional Amounts due in respect of such Payment Date and any such amounts unpaid from any prior Payment Date;
(iv) FOURTH, to the Lenders, pro rata based upon the portion of such amounts owed to each for the payment thereofsuch party, any Indemnified Amounts;
(v) FIFTH, to (A) during the extent not paid by the ServicerRevolving Period, to the Principal Collection Account for application by the Borrower to purchase additional Loans (or to fund additional Dealer Loan Contracts allocated to the Open Pool of Dealer Loan Contracts securing a Dealer Loan) from the Originator, the amount needed to cause the Collateral Custodian in Amount to at least equal the Minimum Collateral Amount, and if the Minimum Collateral Amount cannot be reached due to an insufficient amount of Loans for purchase by the Borrower, the amount needed to cause the Adjusted Collateral Amount to equal the Minimum Collateral Amount; and (B) during the Amortization Period, to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expensesthe Lenders, if anypro rata, for the payment thereofPrincipal Distributable Amount, until Capital has been reduced to zero;
(vi) SIXTH, to the ServicerDeal Agent for the account of the Lender, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or to, without double counting, any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;Interest Cap Carryover.
(vii) SEVENTH, during the Revolving Period, to the Administrative Agent for payment to each Managing AgentReserve Account, on behalf of the related Lenders, in (A) an amount equal to any accrued outstanding Reserve Advances and unpaid Interest and Unused Fee for such Payment Date(B) the amount necessary to cause the amount on deposit in the Reserve Account to equal the Required Reserve Account Amount (after giving effect to any deposits made in subclause (A));
(viii) EIGHTH, firstpari passu, (A) to the Backup Servicer, any amounts owed to the Backup Servicer, to the extent of available Principal Collectionsnot paid pursuant to clause (ii)(A), (C) and second, (D) due to the extent of available Interest Collections, cap specified in each such clause and (B) to the Administrative Agent for payment to each Managing Collateral Agent, on behalf of the related Lendersany accrued fees, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base reasonable out-of-pocket expenses or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances OutstandingIndemnified Amounts;
(ix) NINTH, to each Hedge Counterpartythe Lenders for the account of any other applicable Person, any Swap Breakage and Indemnity Amounts owing that Hedge Counterpartyall remaining amounts up to all Aggregate Unpaids (during the Revolving Period, other than Capital) until paid in full;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, Borrower any remaining amounts.
(b) (i) If on behalf of the related Lenders, in any Payment Date the amount of unpaid Breakage Costs paid pursuant to Section 2.7(a)(iii) and (other than Breakage Costs covered in clause (viiv) above) with respect is insufficient to any prepayments made cover all amounts due thereunder on such Payment Date Increased Coststhe Borrower (or, and/or Taxes (if any);
(xifollowing its assumption of exclusive control of the Reserve Account, the Collateral Agent) ELEVENTH, shall withdraw from the Reserve Account an amount equal to the Swingline Lenderlesser of such shortfall and the amount of funds on deposit in the Reserve Account (such withdrawal, for a “Reserve Advance”) and deposit such amount to the portion Collection Account. The Borrower (or, following its assumption of exclusive control of the Obligations constituting unpaid principal of Collection Account, the Swing Advances;Collateral Agent) shall pay such amount to the Lenders.
Appears in 2 contracts
Samples: Loan and Security Agreement (Credit Acceptance Corp), Loan and Security Agreement (Credit Acceptance Corp)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which shall be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Borrower or received in any Lock-Box or Collection Account; provided, however, that so long as each of the conditions precedent set forth in Section 5.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay (i) the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement or (ii) amounts owing by the Borrower to the Originators under the Subordinated Notes (each such release, a “Release”). On each Payment Settlement Date, the Servicer on behalf (or, following its assumption of control of the Borrower shall pay for receipt by Collection Accounts, the applicable Lender no later than 11:00 a.m. (New York City timeAdministrative Agent) to the following Personsshall, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during distribute such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts Collections in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRSTfirst, to the BorrowerServicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of Servicing Fees payable for any prior Interest Period to the Transferred Loansextent such amount has not been distributed to the Servicer);
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTHsecond, to the Administrative Agent for payment distribution to each Managing AgentLender and other Credit Party (ratably, based on behalf of the related Lendersamount then due and owing), in an amount equal to any all accrued and unpaid Interest, Fees and Breakage Fees due to any Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 4.03 and Unused Fee 11.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 4.03 and 11.01 in respect of such payments) payable for any prior Interest Period to the extent such Payment Dateamount has not been distributed to any Lender or Credit Party;
(viiiiii) EIGHTHthird, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders as set forth in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
clause (x) TENTHor (y) below, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;as applicable:
Appears in 2 contracts
Samples: Receivables Financing Agreement (PRA Health Sciences, Inc.), Receivables Financing Agreement (PRA Health Sciences, Inc.)
Settlement Procedures. (a) On each Payment Date, the Servicer on behalf shall instruct the Account Bank to pay, or if an Event of Default shall have occurred and is continuing, the Borrower Administrative Agent shall pay for receipt by instruct the applicable Lender Account Bank to pay, no later than 11:00 a.m. (12:00 p.m., New York City time) , in each case, based solely on the information in the related Monthly Report, to the following Persons, from (i) the Collection Account, Account (to the extent of available funds, Available Funds) and from the Reserve Account (ii) Servicer Advances, and (iii) amounts received in respect the amount of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (irelated Reserve Account Withdrawal Amount), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During priority as set forth in the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal CollectionsMonthly Report:
(i) FIRSTFirst, to the Borrowerpro rata, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any based on amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iiiA) THIRD, to the Servicer, the accrued and unpaid Servicing Fee, (B) to the Backup Servicer, the sum of (1) the accrued and unpaid Backup Servicing Fee and (2) any out-of-pocket expenses and indemnities due to the Backup Servicer, which in an amount equal the case of subclause (B)(2) shall not in the aggregate exceed $25,000 in any calendar year, (C) to the Successor Servicer, any Unreimbursed Servicer Advancesunpaid Transition Expenses (such Transition Expenses not to exceed $250,000 in the aggregate) payable pursuant to Section 7.14(d), for (D) to the payment thereof;
Image File Custodian, the sum of (iv1) FOURTHthe accrued and unpaid Image File Custodian Fee and (2) any out-of-pocket expenses and indemnities due to the Image File Custodian, which in the case of subclause (D)(2) shall not in the aggregate exceed $25,000 in any calendar year, (E) to the Account Bank and the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Xxxxx Fargo Bank), the sum of (1) the accrued and unpaid Account Bank Fee payable to the Account Bank and (2) any out-of-pocket expenses and indemnities due to the Account Bank and the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Xxxxx Fargo Bank), which in the case of subclause (E)(2) shall not in the aggregate exceed $25,000 in any calendar year, and (F) to the 2017-1A SUBI Trustee, to the extent not paid by the Initial Beneficiary or the Servicer, any accrued and unpaid fees, out-of-pocket expenses and indemnities due to the Backup Servicer 2017-1A SUBI Trustee under the 2017-1A SUBI Supplement, which in the case of subclause (F) shall not in the aggregate exceed $25,000 in any calendar year;
(ii) Second, pro rata, based on amounts owing (A) to any Hedge Counterparty, any net payments due and any Successor Servicerpayable by the Borrower under the related Hedging Agreement other than Hedge Breakage Costs, as applicable, and (B) to each applicable Agent for the ratable payment to each Class A Lender in an amount equal to any accrued and unpaid Backup Servicing Fee and(1) Senior Interest on the Class A Loans, if any, accrued (2) Breakage Costs relating to any Class A Loans and unpaid Transition Costs, Backup Servicer Expenses (3) all other Aggregate Unpaids allocable to the Loans Outstanding that are Class A Loans (other than the principal amount of the Loans Outstanding and Market Servicing Fee Differential, each any related Subordinate Interest) then due under this Agreement to the Administrative Agent and the applicable Agents or Class A Lenders for the payment thereof, which in the case of subclauses (2) and (3) (excluding any unpaid Senior Interest due on the Class A Loans prior to such Payment Date) shall not exceed $50,000 in any calendar year;
(viii) FIFTHThird, to each applicable Agent for the extent not paid by the Servicer, ratable payment to the Collateral Custodian each Class B Lender in an amount equal to any accrued and unpaid Collateral Custodian Fee (1) Senior Interest on the Class B Loans, (2) Breakage Costs relating to any Class B Loans and Collateral Custodian Expenses, if any, (3) all other Aggregate Unpaids allocable to the Loans Outstanding that are Class B Loans (other than the principal amount of the Loans Outstanding and any related Subordinate Interest) then due under this Agreement to the applicable Agents or Lenders for the payment thereof, which in the case of subclauses (2) and (3) (excluding any unpaid Senior Interest due on the Class B Loans prior to such Payment Date) shall not exceed $50,000 in any calendar year;
(iv) Fourth, based on amounts owing (A) first, to each applicable Agent, for the ratable payment (by outstanding Principal Amount) to each Class A Lender, an amount equal to the Class A Monthly Principal Payment Amount, (B) second, to each applicable Agent, for the ratable payment (by outstanding Principal Amount) to each Class B Lender, an amount equal to the Class B Monthly Principal Payment Amount; and (C) third, to any Hedge Counterparty, any Senior Hedge Breakage Costs;
(v) Fifth, prior to the Revolving Period Termination Date, to the Reserve Account, the amount necessary to cause the amount on deposit therein to equal the Reserve Account Required Amount
(vi) SIXTHSixth, to if the ServicerRevolving Period Termination Date has occurred, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliatesfirst, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, each applicable Agent for the ratable payment thereof to each Class A Lender, any remaining Available Funds, until the Loans Outstanding that are Class A Loans are reduced to zero, and (B) otherwisesecond, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period each applicable Agent for the ratable payment thereofto each Class B Lender, any remaining Available Funds, until the Loans Outstanding that are Class B Loans are reduced to zero;
(vii) SEVENTHSeventh, to the Administrative each applicable Agent for the ratable payment to each Managing Agent, on behalf of the related Lenders, Class A Lender in an amount equal to any accrued and unpaid Subordinate Interest on the Class A Loans and Unused Fee for such Payment Dateany accrued and unpaid Senior Interest on the Class A Loans, Breakage Costs and other Aggregate Unpaids due to the Class A Lenders and not paid pursuant to clause (ii) above;
(viii) EIGHTH, firstEighth, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative each applicable Agent for the ratable payment to each Managing Agent, on behalf of the related Lenders, Class B Lender in an amount equal to any accrued and unpaid Subordinate Interest on the excessClass B Loans and any accrued and unpaid Senior Interest on the Class B Loans, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified and other Aggregate Unpaids due to the Borrower by the applicable Lender(s)), pro rata; provided, however, that Class B Committed Lenders and not paid pursuant to the extent that clause (iiii) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstandingabove;
(ix) NINTHNinth, to each any Hedge Counterparty, any Swap Subordinated Hedge Breakage and Indemnity Amounts owing that Hedge CounterpartyCosts due but not paid;
(x) TENTHTenth, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs all other Aggregate Unpaids (other than Breakage Costs covered in clause (viithe principal amount of the Loans Outstanding) above) with respect then due under this Agreement to any prepayments made on such Payment Date Increased Coststhe Affected Parties or the Indemnified Parties, and/or Taxes (if any)for the payment thereof;
(xi) ELEVENTHEleventh, pro rata, based on amounts owing to the Swingline LenderBackup Servicer, for the portion Servicer, the Image File Custodian, the Account Bank, the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Xxxxx Fargo Bank) and the 2017-1A SUBI Trustee, any fees, expenses, indemnities and Transition Expenses not paid pursuant to clause (i) above, as applicable; and
(xii) Twelfth, any remaining amount shall be distributed to the Borrower.
(b) For the avoidance of doubt, it is hereby agreed that (i) accrued and unpaid fees, expenses and indemnities payable to the Account Bank, the Image File Custodian, the Servicer, the Backup Servicer (including in its capacity as Successor Servicer), the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Xxxxx Fargo Bank) or the 2017-1A SUBI Trustee in excess of the Obligations constituting unpaid principal aggregate annual maximum amount for any year (as set forth in Section 2.08(a)(i)) and not paid pursuant to Section 2.08(a)(xi) shall be reimbursable in subsequent years in the same order of priority and subject to the same limitations as set forth above until paid in full, and (ii) each of the Swing Advances;caps set forth in Section 2.08(a)(i) with respect to the out-of-pocket expenses, losses and indemnities of the Account Bank, the Backup Servicer, the Image File Custodian, the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Xxxxx Fargo Bank) and the 2017-1A SUBI Trustee shall not be applicable upon the occurrence and during the continuance of any Event of Default.
Appears in 2 contracts
Samples: Credit Agreement (Regional Management Corp.), Credit Agreement (Regional Management Corp.)
Settlement Procedures. (a) On each Payment Date, the Servicer on behalf shall instruct the Account Bank in writing to pay, or if an Event of Default shall have occurred and is continuing, the Borrower Administrative Agent shall pay for receipt by instruct the applicable Lender Account Bank in writing to pay, no later than 11:00 a.m. (12:00 p.m., New York City time) , in each case, based solely on the information in the related Monthly Report, to the following Persons, from (i) the Collection Account, Account (to the extent of available funds, Available Funds) and from the Reserve Account (ii) Servicer Advances, and (iii) amounts received in respect the amount of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (irelated Reserve Account Withdrawal Amount), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During priority as set forth in the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal CollectionsMonthly Report:
(i) FIRSTfirst, to the Borrowerpro rata, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;based on amounts owing:
(iiA) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereofaccrued and unpaid Servicing Fees;
(ivB) FOURTHto the Backup Servicer, the sum of (1) the accrued and unpaid Backup Servicing Fee and (2) any out-of-pocket expenses and indemnities due to the Backup Servicer (other than Transition Expenses), which in the case of subclause (B)(2) shall not in the aggregate exceed $25,000 in any calendar year;
(C) to the Backup Servicer or other Successor Servicer, any unpaid Transition Expenses (such Transition Expenses not to exceed $250,000 in the aggregate) payable pursuant to Section 7.14(d);
(D) to the Account Bank and the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Xxxxx Fargo Bank), the sum of (1) the accrued and unpaid Account Bank Fee payable to the Account Bank and (2) any out-of-pocket expenses and indemnities due to the Account Bank and the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Xxxxx Fargo Bank), which in the case of subclause (E)(2) shall not in the aggregate exceed $25,000 in any calendar year; and
(E) to the 2021-1B SUBI Trustee, to the extent not paid by the Initial Beneficiary or the Servicer, any accrued and unpaid fees, out-of-pocket expenses and indemnities due to the Backup Servicer 2021-1B SUBI Trustee under the 2021-1B SUBI Supplement, which in the case of subclause (F) shall not in the aggregate exceed $25,000 in any calendar year;
(ii) second, pro rata, based on amounts owing (A) to any Hedge Counterparty, any net payments due and any Successor Servicerpayable by the Borrower under the related Hedging Agreement other than Hedge Breakage Costs, as applicable, and (B) to each applicable Agent for the ratable payment to each Lender in an amount equal to any accrued and unpaid Backup Servicing Fee and(1) Senior Interest on the Loans, if any, accrued (2) Breakage Costs relating to the Loans and unpaid Transition Costs, Backup Servicer Expenses (3) all other Aggregate Unpaids allocable to the Loans Outstanding (other than the principal amount of the Loans Outstanding and Market Servicing Fee Differential, each any related Subordinate Interest) then due under this Agreement to the Administrative Agent and the applicable Agents or Lenders for the payment thereof, which in the case of subclauses (2) and (3) (excluding any unpaid Senior Interest due on the Loans prior to such Payment Date) shall not exceed $50,000 in any calendar year;
(iii) third, based on amounts owing (A) first, to each applicable Agent, for the ratable payment (by outstanding Principal Amount) to each Lender, an amount equal to the Monthly Principal Payment Amount and (B) second, to any Hedge Counterparty, any Senior Hedge Breakage Costs;
(iv) fourth, prior to the Revolving Period Termination Date, to the Reserve Account, the amount necessary to cause the amount on deposit therein to equal the Reserve Account Required Amount;
(v) FIFTHfifth, if the Revolving Period Termination Date has occurred, to each applicable Agent for the extent not paid by ratable payment to each Lender, any remaining Available Funds, until the ServicerLoans Outstanding are reduced to zero;
(vi) sixth, to each applicable Agent for the Collateral Custodian ratable payment to each Lender in an amount equal to any accrued and unpaid Collateral Custodian Fee Subordinate Interest Loans and Collateral Custodian Expensesany accrued and unpaid Senior Interest on the Loans, if anyBreakage Costs and other Aggregate Unpaids due to the Lenders and not paid pursuant to clause (ii) above;
(vii) seventh, to any Hedge Counterparty, any Subordinated Hedge Breakage Costs due but not paid;
(viii) eighth, all other Aggregate Unpaids (other than the principal amount of the Loans Outstanding) then due under this Agreement to the Affected Parties or the Indemnified Parties, for the payment thereof;
(viix) SIXTHninth, pro rata, based on amounts owing to the Backup Servicer, the Servicer, in an amount equal the Account Bank, the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Xxxxx Fargo Bank) and the 2021-1B SUBI Trustee, any fees, expenses, indemnities and Transition Expenses not paid pursuant to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of clause (i) the Borrowing Base or above, as applicable; and
(iix) the Facility Amounttenth, together with the any remaining amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified shall be distributed to the Borrower by Borrower.
(b) For the applicable Lender(s))avoidance of doubt, pro rata; provided, however, that to the extent it is hereby agreed that (i) accrued and unpaid fees, expenses and indemnities payable to the Termination Date has Account Bank, the Servicer, the Backup Servicer (including in its capacity as Successor Servicer), the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Xxxxx Fargo Bank) or the 2021-1B SUBI Trustee in excess of the aggregate annual maximum amount for any year (as set forth in Section 2.08(a)(i)) and not occurred paid pursuant to Section 2.08(a)(xi) shall be reimbursable in subsequent years in the same order of priority and subject to the same limitations as set forth above until paid in full, and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, caps set forth in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) aboveSection 2.08(a)(i) with respect to any prepayments made on such Payment Date Increased Coststhe out-of-pocket expenses, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion losses and indemnities of the Obligations constituting unpaid principal Account Bank, the Backup Servicer, the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Xxxxx Fargo Bank) and the 2021-1B SUBI Trustee shall not be applicable upon the occurrence and during the continuance of any Event of Default. In making the Swing Advances;payments required under this Section 2.08, the Account Bank shall have no duty to make any determination, calculation or verification regarding any amounts to be paid or the recipients of such amounts, and shall be entitled to rely exclusively and conclusively on the related Monthly Report.
Appears in 2 contracts
Samples: Credit Agreement (Regional Management Corp.), Credit Agreement (Regional Management Corp.)
Settlement Procedures. (a) On each Payment Date, the Servicer on behalf shall instruct the Account Bank in writing to pay, or if an Event of Default shall have occurred and is continuing, the Borrower Administrative Agent shall pay for receipt by instruct the applicable Lender Account Bank in writing to pay, no later than 11:00 a.m. (12:00 p.m., New York City time) , in each case, based solely on the information in the related Monthly Report, to the following Persons, from (i) the Collection Account, Account (to the extent of available funds, Available Funds) and from the Reserve Account (ii) Servicer Advances, and (iii) amounts received in respect the amount of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (irelated Reserve Account Withdrawal Amount), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During priority as set forth in the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal CollectionsMonthly Report:
(i) FIRSTFirst, pro rata, based on amounts owing (A) to the BorrowerAccount Bank and the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Xxxxx Fargo Bank), the aggregate amount sum of fees (including up1) the accrued and unpaid Account Bank Fee payable to the Account Bank and (2) any out-front, continuing or success fees) received in respect of of-pocket expenses and indemnities due to the Transferred Loans;
Account Bank and the Third Party Allocation Agent (ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(sso long as such Third Party Allocation Agent is Xxxxx Fargo Bank), for which in the payment thereofcase of subclause (A)(2), but excludingsubject to Section 2.07(b), shall not in the aggregate exceed $25,000 in any calendar year, and (B) to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH2021-1C SUBI Trustee, to the extent not paid by the Initial Beneficiary or the Servicer, any accrued and unpaid fees, out-of-pocket expenses and indemnities due to the 2021-1C SUBI Trustee under the 2021-1C SUBI Supplement, which in the case of subclause (B), subject to Section 2.07(b), shall not in the aggregate exceed $25,000 in any calendar year;
(ii) Second, (A) to the Servicer, the accrued and unpaid Servicing Fee and (B) to the Successor Servicer, any unpaid Transition Expenses (such Transition Expenses not to exceed $250,000 in the aggregate) payable pursuant to Section 7.14(d);
(iii) Third, to the Backup Servicer and any Successor Servicer, as applicablethe sum of (1) the accrued and unpaid Backup Servicing Fee and (2) any out-of-pocket expenses and indemnities (other than Transition Expense) due to the Backup Servicer, which in the case of subclause (2), subject to Section 2.07(b), shall not in the aggregate exceed $25,000 in any calendar year;
(iv) Fourth, pro rata, based on amounts owing (A) to any Hedge Counterparty, any net payments due and payable by the Borrower under the related Hedging Agreement other than Hedge Breakage Costs, and (B) to each applicable Agent for the ratable payment to each Lender in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued (1) Interest Payment on the Loans (including any previously due and owing but unpaid Transition Costs, Backup Servicer Expenses Interest Payments) and Market Servicing Fee Differential, each (2) Breakage Costs then due under this Agreement to the Administrative Agent and the applicable Lenders for the payment thereof;
(v) FIFTHFifth, based on amounts owing, (A) first, to each applicable Agent, for the ratable payment (by outstanding Principal Amount) to each Lender, an amount equal to the Monthly Principal Payment Amount and (B) second, to any Hedge Counterparty, any Senior Hedge Breakage Costs;
(vi) Sixth, prior to the Revolving Period Termination Date, to the extent not paid by Reserve Account, the Serviceramount necessary to cause the amount on deposit therein to equal the Reserve Account Required Amount;
(vii) Seventh, if the Revolving Period Termination Date has occurred, to each applicable Agent for the Collateral Custodian ratable payment to each Lender, any remaining Available Funds, until the Loans Outstanding are reduced to zero;
(viii) Eighth, to each applicable Agent for the ratable payment to each Lender in an amount equal to any accrued other Aggregate Unpaids due to the Lenders and unpaid Collateral Custodian Fee and Collateral Custodian Expensesnot paid pursuant to clauses (iv), if any(v) or (vii) above;
(ix) Ninth, to any Hedge Counterparty, any Subordinated Hedge Breakage Costs due but not paid;
(x) Tenth, all other Aggregate Unpaids (other than the principal amount of the Loans Outstanding) then due to the 2021-1C SUBI Trustee, for the payment thereof;
(vixi) SIXTHEleventh, all other Aggregate Unpaids (other than the principal amount of the Loans Outstanding) then due under this Agreement to the ServicerAffected Parties or the Indemnified Parties, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(viixii) SEVENTHTwelfth, pro rata, based on amounts owing to the Administrative Backup Servicer, the Servicer, the Account Bank, the Third Party Allocation Agent for payment (so long as such Third Party Allocation Agent is Xxxxx Fargo Bank) and the 2021-1C SUBI Trustee, any fees, expenses, indemnities and Transition Expenses not paid pursuant to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of clause (i) the Borrowing Base or above, as applicable; and
(iixiii) the Facility AmountThirteenth, together with the any remaining amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified shall be distributed to the Borrower by Borrower.
(b) For the applicable Lender(s))avoidance of doubt, pro rata; provided, however, that to the extent it is hereby agreed that (i) accrued and unpaid fees, expenses and indemnities payable to the Termination Date has Account Bank, the Servicer, the Backup Servicer (including in its capacity as Successor Servicer), the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Xxxxx Fargo Bank) or the 2021-1C SUBI Trustee in excess of the aggregate annual maximum amount for any year (as set forth in Sections 2.07(a)(i) and 2.07(a)(iii)) and not occurred paid pursuant to Section 2.7(a)(xii) shall be reimbursable in subsequent years in the same order of priority and subject to the same limitations as set forth above until paid in full, and (ii) Advances Outstanding exceed upon the Facility Amount due occurrence and during the continuance of any Event of Default, the out-of-pocket expenses, losses and indemnities of the Account Bank, the Backup Servicer, and the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Xxxxx Fargo Bank) shall be capped at $250,000, and the out-of-pocket expenses, losses and indemnities of the 2021-1C SUBI Trustee shall be capped at $100,000, in each case instead of the applicable caps set forth in Sections 2.07(a)(i) and 2.07(a)(iii). In making the payments required under this Section 2.07, the Account Bank shall have no duty to one make any determination, calculation or more Lenders becoming Non-Renewing Lenders, verification regarding any amounts to each Managing Agent on behalf be paid or the recipients of such Non-Renewing Lenders onlyamounts, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, and shall be entitled to each Hedge Counterparty, any Swap Breakage rely exclusively and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, conclusively on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;Monthly Report.
Appears in 2 contracts
Samples: Credit Agreement (Regional Management Corp.), Credit Agreement (Regional Management Corp.)
Settlement Procedures. (a) On each Payment Date, so long as no Event of Default has occurred and is continuing, the Servicer on behalf of Investment Manager shall direct the Borrower Collateral Custodian (which direction shall pay for be deemed given upon receipt by the applicable Lender no later than 11:00 a.m. Collateral Custodian of the related Reporting Date Report), who shall direct the Account Bank, to pay pursuant to the latest Reporting Date Report (New York City timeand the Collateral Custodian shall direct the Account Bank to make payment from the Interest Collection Account to the extent of Available Funds, in reliance on the information set forth in such Reporting Date Report) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a1) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian Custodian, the Document Custodian, and the Account Bank pro rata, in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereofFees;
(vi2) SIXTHto the Hedge Counterparty, the aggregate net amount then due and payable to the Hedge Counterparty under each applicable Hedging Agreement (excluding Hedge Breakage Costs);
(3) to the Investment Manager (including, for avoidance of doubt, the Replacement Servicer, if applicable), first, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or pay any of its Affiliates, its accrued and unpaid Servicing Investment Management Fees and, second, to the end pay all documented fees and expenses of the preceding Settlement PeriodInvestment Manager (including, up without limitation, reasonable attorney’s fees, costs and expenses) in an aggregate amount with respect to such documented fees and expenses in any rolling 12-month period not greater than the Servicing Fee Limit Amount for such Settlement Period, for greater of (i) 0.20% of the payment thereof aggregate outstanding principal value of all Eligible Loans and (Bii) $250,000; provided that so long as CM Investment Partners LLC is Investment Manager, such fee shall be waived until such time as IM directs the Custodian otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii4) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest fees, expenses and Unused Fee indemnities set forth in the Transaction Documents, including, for such Payment Datethe avoidance of doubt, any accrued and unpaid fees, expenses and indemnities of Administrative Agent and unpaid Administrative Expenses;
(viii5) EIGHTHto the Administrative Agent to be distributed pro rata to each Lender, in an amount equal to (a) any accrued and unpaid Interest with respect to Advances made by such Lender, (b) any accrued and unpaid Non-Usage Fee (such Non-Usage Fee to be allocated based on the unused Commitment of each Lender) and (c) any accrued and unpaid Breakage Costs;
(6) to the Hedge Counterparty, any other amounts (including any Hedge Breakage Costs) incurred by the Hedge Counterparty under the applicable Hedging Agreement then due and payable, net of any amounts then due and payable to the Borrower under such applicable Hedging Agreement;
(7) to the Administrative Agent to be distributed pro rata to each Lender, in an amount equal to, if the Facility Amount has been terminated in whole pursuant to Section 2.3(c), the Advances Outstanding;
(8) [Reserved];
(9) to the Administrative Agent to be distributed pro rata to each Lender, if a Borrowing Base Deficiency exists, an amount necessary to reduce the Borrowing Base Deficiency to zero, pro rata in accordance with the amount of Advances Outstanding hereunder;
(10) (a) during the Revolving Period, to fund the Unfunded Exposure Account in an amount necessary to cause all amounts in the Unfunded Exposure Account to equal the Aggregate Unfunded Exposure Equity Amount, or (b) after the Revolving Period, to fund the Unfunded Exposure Account in an amount necessary to cause the amounts in the Unfunded Exposure Account to equal the Aggregate Unfunded Exposure Amount;
(11) first, to be distributed to the extent of available Principal CollectionsCollateral Custodian, Document Custodian and Account Bank, any accrued and unpaid Collateral Custodian Fees not paid pursuant to Section 2.7(a)(1), and second, to the Administrative Agent to be distributed to the Administrative Agent, any applicable Lender, and the Indemnified Parties, or the Secured Parties, as applicable, all other amounts then due and owing, including, without limitation, any unpaid Administrative Expenses, any amounts accrued and unpaid under the Fee Letter, Increased Costs, Taxes, indemnities, but other than the principal of Advances Outstanding, then due under this Agreement; and
(12) any remaining amounts shall be distributed to the Borrower or any nominee thereof, which amounts may be used by the Borrower to make Restricted Payments.
(b) On each Payment Date, so long as no Event of Default has occurred and is continuing, the Investment Manager shall direct (which direction shall be deemed given upon receipt by the Collateral Custodian of the related Reporting Date Report) the Collateral Custodian, who shall direct the Account Bank, to pay pursuant to the latest Reporting Date Report (and the Collateral Custodian shall direct the Account Bank to make payment from the Principal Collection Account to the extent of available Interest CollectionsAvailable Funds, in reliance on the information set forth in such Reporting Date Report) to the following Persons, the following amounts in the following order of priority:
(1) to the extent not paid pursuant to Section 2.7(a), to the Collateral Custodian, the Document Custodian and the Account Bank, pro rata, in an amount equal to any accrued and unpaid Collateral Custodian Fees;
(2) to the extent not paid pursuant to Section 2.7(a), to the Hedge Counterparty, the aggregate net unpaid amount then due and payable to the Hedge Counterparty under each applicable Hedging Agreement (excluding Hedge Breakage Costs);
(3) to the extent not paid pursuant to Section 2.7(a), to the Investment Manager, in an amount equal to any accrued and unpaid Investment Management Fees;
(4) to the extent not paid pursuant to Section 2.7(a), to the Administrative Agent, in an amount equal to any accrued and unpaid fees, expenses and indemnities set forth in the Transaction Documents, including, for the avoidance of doubt, any accrued and unpaid fees, expenses and indemnities of Administrative Agent and unpaid Administrative Expenses;
(5) to the extent not paid pursuant to Section 2.7(a), to the Administrative Agent for payment to be distributed pro rata to each Managing AgentLender, on behalf of the related Lenders, in an amount equal to (a) any accrued and unpaid Interest with respect to Advances made by such Xxxxxx, (b) any accrued and unpaid Non-Usage Fee (such Non-Usage Fee to be allocated based on the excessunused Commitment of each Lender) and (c) any accrued and unpaid Breakage Costs;
(6) to the extent not paid pursuant to Section 2.7(a), to the Hedge Counterparty, any other unpaid amounts (including any Hedge Breakage Costs) incurred by the Hedge Counterparty under the applicable Hedging Agreement then due and payable, net of any amounts then due and payable to the Borrower under such applicable Hedging Agreement;
(7) to the extent not paid pursuant to Section 2.7(a), to the Administrative Agent to be distributed pro rata to each Lender, in an amount equal to if the Facility Amount has been terminated in whole pursuant to Section 2.3(c), the Advances Outstanding;
(8) [Reserved];
(9) (x) during the Revolving Period, to fund the Unfunded Exposure Account in an amount necessary to cause all amounts in the Unfunded Exposure Account to equal the Aggregate Unfunded Exposure Equity Amount, or (y) after the Revolving Period, to fund the Unfunded Exposure Account in an amount necessary to cause the amounts in the Unfunded Exposure Account to equal the Aggregate Unfunded Exposure Amount;
(10) (a) during the Revolving Period, to the extent not paid pursuant to Section 2.7(a), to the Administrative Agent to be distributed pro rata to each Lender, if anya Borrowing Base Deficiency exists, of Advances Outstanding over the lesser of (i) an amount necessary to reduce the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified Deficiency to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders onlyzero, pro rata in accordance with their the amount of Advances Outstanding hereunder and (b) after the end of the Revolving Period, to the Lenders to pay the Advances Outstanding;
(ix11) NINTHto the extent not paid pursuant to Section 2.7(a), first, to each Hedge Counterpartybe distributed to the Collateral Custodian, Document Custodian and Account Bank, any Swap Breakage accrued and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTHunpaid Collateral Custodian Fees, and second, to the Administrative Agent for payment to each Managing be distributed pro rata to the Administrative Agent, on behalf of any applicable Lender, and the related LendersIndemnified Parties, in or the amount of Secured Parties, all other amounts, including, without limitation, any unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to Administrative Expenses, any prepayments made on such Payment Date amounts accrued and unpaid under the Fee Letter, any Increased Costs, and/or Taxes (if any);Taxes, indemnities and fees or expenses of counsel, but other than the principal of Advances Outstanding, then due under this Agreement; and
(xi12) ELEVENTHany remaining amounts shall be distributed to the Borrower or any nominee thereof, which amounts may be used by the Borrower to make Restricted Payments, provided, that Borrower shall first reimburse the Investment Manager for any unreimbursed amounts paid by the Investment Manager on the Borrower’s behalf pursuant to this Agreement, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;extent not otherwise reimbursed hereunder.
Appears in 2 contracts
Samples: Loan, Security and Investment Management Agreement (Investcorp US Institutional Private Credit Fund), Loan, Security and Investment Management Agreement (Investcorp US Institutional Private Credit Fund)
Settlement Procedures. (a) On each Payment Date, the Servicer on behalf of shall direct the Borrower shall Collateral Custodian to pay for receipt by pursuant to the applicable Lender no later than 11:00 a.m. (New York City time) Monthly Report to the following Persons, from (i) the Collection Account, to the extent of available fundsAvailable Funds, and (ii) Servicer Advances, and (iii) amounts Advances received in with respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) immediately preceding Collection Period, the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed unreimbursed Servicer Advances, for the payment thereof;
(ii) SECOND, to the Servicer, in an amount equal to any accrued and unpaid Servicing Fee, to the end of the preceding Collection Period, for the payment thereof;
(iii) THIRD, to the extent not paid for by the Originators, pro rata to the Backup Servicer and the Collateral Custodian, in an amount equal to any accrued and unpaid Backup Servicing Fee, Collateral Custodian Fee and Transition Expenses, for the payment thereof;
(iv) FOURTH, to pro rata in accordance with the extent not paid by the Serviceramounts due under subclauses (a) and (b) of this clause, to each Purchaser Agent, pro rata in accordance with the Backup Servicer and any Successor Serviceramount of Advances Outstanding hereunder for the account of the applicable Purchaser, as applicable, in (a) an amount equal to any accrued and unpaid Backup Servicing Program Fee and, if any, and Breakage Costs for the payment thereof and (b) an amount equal to any accrued and unpaid Transition CostsInterest, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereofthereof but only to the extent such accrued and unpaid Interest does not exceed the LIBOR Market Index Rate applicable for such Accrual Period;
(v) FIFTH, to each Purchaser Agent, pro rata in accordance with the extent not paid by amount of Advances Outstanding hereunder for the Serviceraccount of the applicable Purchaser, to the Collateral Custodian in an amount equal necessary to any accrued reduce the Advances Outstanding and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if anyAggregate Unpaids to zero, for the payment thereof;
(vi) SIXTH, to each Purchaser Agent, pro rata in accordance with the Servicer, in an amount equal to (A) if Pro-Rata Share for the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end account of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lendersapplicable Purchaser, in an amount equal to any accrued and unpaid Interest and Unused Fee to the extent not paid in accordance with clause FOURTH above;
(vii) SEVENTH, to the Administrative Agent, each Purchaser Agent, the applicable Purchaser, the Backup Servicer, the Collateral Custodian, the Affected Parties, the Indemnified Parties or the Secured Parties, pro rata in accordance with the amount owed to such Person under this SEVENTH clause, all other amounts, including Increased Costs but other than Advances Outstanding, then due under this Agreement, for such Payment Datethe payment thereof;
(viii) EIGHTH, firstto Wachovia Bank, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing AgentNational Association, on behalf account of any due and payable “Obligations” under and as defined in the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rataCS Europe Financing; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;and
(ix) NINTH, any remaining amount shall be distributed to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;the Sellers.
(xb) TENTHUpon payment in full through the SEVENTH clause set forth above, the provisions set forth in (i) Sections 2.11(b), 2.12(c), 2.15, 2.17, 5.1(k), 5.1(q), 5.4(o), 6.10(a), 6.12, 10.1(f), 10.1(k), 10.1(n) and 10.1(o) and (ii) Articles III, IV and XIV shall no longer apply to the Administrative Agent for payment to each Managing AgentSellers or the Servicer, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;as applicable.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Settlement Procedures. On (a) As set forth in the Monthly Report, on each Payment Date, the Servicer Collateral Agent shall withdraw Available Funds and any Excess Reserve Amount and investment earnings on behalf of amounts on deposit in the Borrower shall pay for receipt by Collection Account from the Collection Account and allocate and distribute such amounts to the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts Person in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrowerpari passu, the aggregate amount of fees (including up-front, continuing or success feesA) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed accrued and unpaid Servicing Fees due in respect of such Payment Date and any Servicing Fees unpaid from any prior Payment Date; provided, however, if the Servicer Advances, for has been replaced pursuant to Section 6.12 such amount shall not exceed the payment thereof;
Capped Servicing Fee; (ivB) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Servicer, if it has become the Successor Servicer, any Transition Expenses; (C) to the Backup Servicer, so long as applicableit has not become the Successor Servicer hereunder, in an amount equal to any accrued and unpaid Backup Servicing Fee anddue in respect of such Payment Date, if anyany unpaid Backup Servicing Fee from any prior Payment Date, any reasonable out-of-pocket expenses incurred by the Backup Servicer, and any accrued and unpaid Indemnified Amounts owed to the Backup Servicer; and (D) to the Collateral Agent, accrued and unpaid Transition CostsCollateral Agent Fee due in respect of such Payment Date, any unpaid Collateral Agent Fee from any prior Payment Date, any reasonable out-of-pocket expenses incurred by the Collateral Agent, and any accrued and unpaid Indemnified Amounts owed to the Collateral Agent, in the case of clauses (i)(C) and (i)(D) prior to a Termination Event, up to Capped Backup Servicer Expenses and Market Servicing Fee DifferentialCollateral Agent Fees and Expenses, monthly;
(ii) SECOND, to the Lenders, pro rata, an amount equal to the sum of any accrued and unpaid (A) Yield and (B) any Increased Costs and any Additional Amounts due in respect of such Payment Date and any such amounts unpaid from any prior Payment Date;
(iii) THIRD, to the Lenders, pro rata based upon the portion of such amounts owed to each such party, any Indemnified Amounts;
(iv) FOURTH, (A) during the Revolving Period, to the Principal Collection Account for application by the payment thereofBorrower to purchase additional Loans (or to fund additional Dealer Loan Contracts allocated to the Open Pool of Dealer Loan Contracts securing a Dealer Loan) from the Originator, the amount needed to cause the Collateral Amount to at least equal the Minimum Collateral Amount, and if the Minimum Collateral Amount cannot be reached due to an insufficient amount of Loans for purchase by the Borrower, the amount needed to cause the Adjusted Collateral Amount to equal the Minimum Collateral Amount; and (B) during the Amortization Period, to the Lenders, pro rata, the Principal Distributable Amount, until Capital has been reduced to zero;
(v) FIFTH, to during the extent not paid by the ServicerRevolving Period, to the Collateral Custodian in Reserve Account, (A) an amount equal to any accrued outstanding Reserve Advances and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for (B) the payment thereofamount necessary to cause the amount on deposit in the Reserve Account to equal the Required Reserve Account Amount (after giving effect to any deposits made in subclause (A));
(vi) SIXTH, to the Servicerpari passu, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement PeriodBackup Servicer, up any amounts owed to the Servicing Fee Limit Amount for such Settlement PeriodBackup Servicer, for to the payment thereof extent not paid pursuant to clause (i)(C) and (B) otherwise, its accrued and unpaid Servicing Fees to the end Collateral Agent, any accrued fees, reasonable out-of-pocket expenses or Indemnified Amounts to the extent not paid pursuant to clause (i)(D), in the case of clauses (i)(C) and (i)(D), due to the preceding Settlement Period for the payment thereofCapped Backup Servicer and Collateral Agent Fees and Expenses;
(vii) SEVENTH, to the Administrative Agent Lenders for payment the account of any other applicable Person, all remaining amounts up to each Managing Agentall Aggregate Unpaids (during the Revolving Period, on behalf of the related Lenders, other than Capital) until paid in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Datefull;
(viii) EIGHTH, first, to the extent of available Principal Collections, Borrower any remaining amounts.
(b) (i) If on any Payment Date the amount paid pursuant to Section 2.7(a)(ii) and second, (iv) is insufficient to cover all amounts due thereunder on such Payment Date the extent of available Interest Collections, to Collateral Agent shall withdraw from the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, Reserve Account an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with such shortfall and the amount of Breakage Costs incurred by funds on deposit in the applicable Lenders in connection with any Reserve Account (such payment (as withdrawal, a “Reserve Advance”) and deposit such Breakage Costs are notified amount to the Borrower by the applicable Lender(s)), pro rata; provided, however, that Collection Account. The Collateral Agent shall pay such amount to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;.
Appears in 2 contracts
Samples: Loan and Security Agreement and Backup Servicing Agreement (Credit Acceptance Corp), Loan and Security Agreement (Credit Acceptance Corp)
Settlement Procedures. (a) On each Payment Date, the Servicer on behalf of the Borrower Collateral Agent shall pay for receipt by the applicable Lender no later than 11:00 a.m. withdraw Available Funds and any Excess Reserve Amount (New York City time) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts applied in accordance with Section 2.14 below being 2.7(c)) and investment earnings on amounts on deposit in the “Available Collections”) Collection Account from the following Collection Account and allocate and distribute such amounts to the applicable Person in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the BorrowerHedge Counterparty, the aggregate an amount equal to any Hedge Costs (exclusive of fees termination payments) and any such Hedge Costs (including up-front, continuing or success feesexclusive of termination payments) received in respect of the Transferred Loans;unpaid from any prior Payment Date.
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicerso long as it has not become the Servicer hereunder, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee anddue in respect of such Payment Date, if anyany unpaid Backup Servicing Fee from any prior Payment Date, any reasonable out-of-pocket expenses incurred by the Backup Servicer, and any accrued and unpaid Transition Costs, Indemnified Amounts owed by the Borrower to the Backup Servicer Expenses and Market Servicing Fee Differentialin an aggregate amount up to $17,000 per month (the “Cap”); provided, each for however, that in the payment thereofevent of an acceleration resulting from a Termination Event specified under Section 10.1(d)(i) or Section 10.1(f) hereunder, such Cap will not apply;
(viii) FIFTHTHIRD, (A) to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee Servicing Fees due in respect of such Payment Date and Collateral Custodian Expensesany Servicing Fees unpaid from any prior Payment Date; provided, if anyhowever, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid has been replaced pursuant to Section 6.12 such amount shall not exceed the Capped Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof Fee; and (B) otherwise, its accrued and unpaid Servicing Fees to the end of Backup Servicer, if it has become the preceding Settlement Period for the payment thereofSuccessor Servicer, any Transition Expenses;
(viiiv) SEVENTHFOURTH, to the Administrative Deal Agent for payment to each Managing Agent, on behalf the account of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, sum of Advances Outstanding over the lesser of any accrued and unpaid (iA) the Borrowing Base or (ii) the Facility Amount, together with the amount of Yield and Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;,
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corp)
Settlement Procedures. On each Payment Date, the Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City Winston-Salem, North Carolina time) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iiiii) THIRDSECOND, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iviii) FOURTHTHIRD, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(viv) FIFTHFOURTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(viv) SIXTHFIFTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(viivi) SEVENTHSIXTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Commitment Fee for such Payment Date;
(viiivii) EIGHTHSEVENTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ixviii) NINTHEIGHTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(xix) TENTHNINTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Date, Increased Costs, Costs and/or Taxes (if any);
(x) TENTH, to the Administrative Agent, all other amounts or Obligations then due under this Agreement to the Administrative Agent, the Lenders, the Affected Parties or Indemnified Parties, each for the payment thereof;
(xi) ELEVENTH, to the Swingline LenderServicer, in an amount equal to its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period not otherwise paid pursuant to priority FIFTH above; and
(xii) TWELFTH, all remaining amounts to the Borrower.
(b) During the Amortization Period, Interest Collections and Principal Collections shall be applied as follows: To the extent of available Interest Collections:
(i) FIRST, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the portion payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(ii) SECOND, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iii) THIRD, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(v) FIFTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the Obligations constituting preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid principal Servicing Fees to the end of the Swing Advancespreceding Settlement Period for the payment thereof;
(vi) SIXTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest, Commitment Fee and Revolver Loan Funding Fee for such Payment Date;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata;
Appears in 1 contract
Samples: Credit Agreement (Gladstone Investment Corporation\de)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrator, segregate in a separate account designated by the Administrator, which shall be an account maintained and controlled by the Administrator unless the Administrator otherwise instructs in its sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Borrower or received in any Lock-Box Account the customer of record of which at the applicable Lock-Box Bank is the Borrower (each such Lock-Box Account, a “Lock-Box Account”); provided, however, that so long as each of the conditions precedent set forth in Section 3 of Exhibit II are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay (i) the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Sale Agreement or (ii) amounts owing by the Borrower to the Originators under the Subordinated Loans made by the Originators (each such release, a “Release”). On each Payment Settlement Date, the Servicer on behalf (or, following (x) its assumption of control of the Borrower shall pay for Lock-Box Accounts or (y) its receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (ipayable under any Pool Receivable pursuant to Section 4.4(a), (iithe Administrator) and (iii)shall, minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts distribute such Collections in the following order of priority:
(ai) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRSTduring the continuance of any Event of Default, to the BorrowerAdministrator, for the aggregate amount payment of fees (including upcosts and out-front, continuing or success feesof-pocket expenses payable by the Borrower under Section 6.4(a) received in respect to the extent such costs arise from the replacement of the Transferred LoansServicer with any successor Servicer(s), including, without limitation, any upfront charges, ongoing fees, deposits, and transition costs;
(ii) SECONDsecond, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), the Servicer for the payment thereofof the accrued Servicing Fees payable to it for the immediately preceding Interest Period (plus, but excludingif applicable, the amount of Servicing Fees payable to it for any prior Interest Period to the extent such amount has not been distributed to the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity AmountsServicer);
(iii) THIRDthird, to each Lender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest and Fees due to such Lender and other Credit Party accrued during the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 1.10 and 3.1 in respect of such payments), plus, if applicable, the amount of any such Interest and Fees (including any additional amounts or indemnified amounts payable under Sections 1.10 and 3.1 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;
(iv) fourth, as set forth in clause (x), (y) or (z) below, as applicable: (x) if such day is not a Termination Day, to the Servicerextent that the Coverage Percentage exceeds 100% on such date: (I) first, to the Lenders (ratably, based on the aggregate outstanding Capital of each Lender at such time) for the payment of a portion of the outstanding Aggregate Capital at such time, in an aggregate amount equal to the amount necessary to reduce the Coverage Percentage to 100% and (II) second, to each LC Collateral Account, in reduction of the Aggregate Adjusted LC Participation Amount, in an amount equal to any Unreimbursed Servicer Advancesthe amount necessary (after giving effect to clause (I) above) to reduce the Coverage Percentage to 100%; (y) if such day is a Termination Day: (I) first, to each Lender (ratably, based on the amount of aggregate outstanding Capital of each Lender at such time) for the payment thereof;
in full of the aggregate outstanding Capital of such Lender at such time and (ivII) FOURTHsecond, to each LC Collateral Account (A) the extent not paid by amount necessary to reduce the Servicer, Aggregate Adjusted LC Participation Amount to the Backup Servicer zero ($0) and any Successor Servicer, as applicable, in (B) an amount equal to any accrued the LC Fee Expectation at such time; or (z) if such day is not a Termination Day, at the election of the Borrower and unpaid Backup Servicing Fee andin accordance with Section 1.2(b), if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for to the payment thereofof all or any portion of the outstanding Capital of the Lenders at such time (ratably, based on the amount of aggregate outstanding Capital of each Lender at such time);
(v) FIFTHfifth, to the extent not paid by Credit Parties that are then Exiting Lenders (ratably, based on the Servicer, to the Collateral Custodian in an amount equal to any accrued due and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if anyowing at such time), for the payment thereofof all other obligations then due and owing by the Borrower to such Credit Parties;
(vi) SIXTHsixth, to the ServicerCredit Parties, in an the Affected Persons and the Indemnified Parties (ratably, based on the amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued due and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for owing at such Settlement Periodtime), for the payment thereof of all other obligations then due and (B) otherwise, its accrued and unpaid Servicing Fees owing by the Borrower to the end of Credit Parties, the preceding Settlement Period for Affected Persons and the payment thereofIndemnified Parties;
(vii) SEVENTHseventh, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excessbalance, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to be paid to the Borrower by the applicable Lender(s)), pro ratafor its own account; provided, however, that in the event that an Event of Default has occurred and is continuing, no Servicing Fees shall be paid pursuant to clause (ii) above prior to the application of payments pursuant to clauses (iii) through (vi) above.
(b) [Reserved]
(c) All payments or distributions to be made by the Servicer, the Borrower or any other Person to the Lenders (or their respective related Affected Persons and Indemnified Parties) or the LC Bank hereunder shall be paid or distributed to the related Group Agent. The applicable Group Agent shall distribute such amounts to the applicable Lenders, the LC Bank, Affected Persons and the Indemnified Parties ratably.
(d) [Reserved].
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected or returned goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Borrower or any Affiliate of the Borrower, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Borrower or any Affiliate of the Borrower, or the Servicer or any Affiliate of the Servicer and an Obligor (except any such revision, cancellation, allowance, discount or other adjustment made in settlement of such Pool Receivable resulting from the financial inability of the applicable Obligor to pay such Pool Receivable and, in the case of all Pool Receivables, made in accordance with the Credit and Collection Policies), the Borrower shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and shall immediately pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of the Lenders and their assigns and for application pursuant to Section 1.4;
(ii) if on any day it is determined that any of the representations or warranties in Sections 1(j) or 3(a) of Exhibit III was (and at the time of such determination remains) untrue with respect to any Pool Receivable at the time a Loan was made with respect to such Pool Receivable, the Borrower shall be deemed to have received on such day a Collection of such Pool Receivable in full and shall immediately pay any and all such amounts to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Lenders and their assigns and for application pursuant to this Section 1.4 (Collections deemed to have been received pursuant to clause (i) or (ii) of this paragraph (e) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) except as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in a manner consistent with the application and allocation procedures employed by the Servicer at such time; and
(iv) if and to the extent the Administrator, any Group Agent or any Lender shall be required for any reason to pay over to an Obligor (or any trustee, Receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Borrower and, accordingly, such Person shall have a claim against the Borrower for such amount, payable when and to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one any distribution from or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata Obligor is made in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;thereof.
Appears in 1 contract
Samples: Receivables Financing Agreement (Cincinnati Bell Inc)
Settlement Procedures. On each Payment Date, Date the Servicer on behalf of the Borrower shall pay to the following Persons, for receipt by the applicable Lender no later than 11:00 a.m. 3:00 p.m. (New York City time) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During To the Revolving Periodextent of Interest Collections plus, and in each case unless otherwise specified with respect to clauses First through Sixth below, applying Interest Collections first, and then Principal Collectionsany amounts on deposit in the Reserve Account:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the ServicerFirst, to the Backup Servicer and any (including in its capacity as Successor Servicer, as if applicable), in an amount equal to any accrued and unpaid currently due Backup Servicing Fee andServicer Fee, if anyall unpaid Backup Servicer Fees due from a prior Payment Date, accrued and any unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differentialamounts due to the Backup Servicer as an Indemnified Party, each and any Transition Costs, for the payment thereof; provided that the amount of expenses other than Transition Costs payable under this clause First shall not exceed $20,000 in the aggregate with respect to such Payment Date;
(vii) FIFTH, to the extent not paid by the ServicerSecond, to the Collateral Custodian in an amount equal to any accrued and unpaid currently due Custodial Fee, all unpaid Custodial Fees due from a prior Payment Date, all unpaid Custodial Expenses, and any other amounts due to the Collateral Custodian Fee and Collateral Custodian Expenses, if anyas an Indemnified Party, for the payment thereof; provided that the amount of Custodial Fees and Custodial Expenses payable under this clause Second shall not exceed $10,000 in the aggregate with respect to such Payment Date;
(viiii) SIXTHThird, (A) to the initial Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees Fee and (B) to any Successor Servicer, the accrued and unpaid Servicing Fee and Market Servicing Fee Differential to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and thereof; provided that the amount of Market Servicing Fee Differential payable in any 12-month period under this clause Third shall not exceed 0.25% of the weighted average aggregate Adjusted Market Value of all Collateral Debt Obligations in the Collateral as of the first day of each month in such period;
(Biv) otherwiseFourth, its pro rata to each Lender in an amount equal to any accrued and unpaid Servicing Fees to the end of the preceding Settlement Period Interest, for the payment thereof;
(v) Fifth, pro rata to each Lender in an amount necessary to reduce the Advances Outstanding by the Outstanding Principal Balance of all Charged-Off Obligations in the Collateral, less any amounts previously paid with respect to such Charged-Off Obligations pursuant to this clause Fifth;
(vi) Sixth, to the Reserve Account, an amount, if necessary, required for the amount on deposit in the Reserve Account to equal the Reserve Account Required Amount;
(vii) SEVENTHSeventh, to each Lender in an amount necessary to reduce the Advances Outstanding by the excess (if any) of (A) the Advances Outstanding on such Payment Date after giving effect to the application of Principal Collections pursuant to Section 2.7(b), over (B) the Target Principal Balance for such Payment Date;
(viii) Eighth, pro rata, (x) to the extent not previously paid pursuant to clause First above, any amounts due to the Backup Servicer, and (y) to the extent not previously paid pursuant to clause Second above, any amounts due to the Collateral Custodian, in each case together with accrued interest thereon;
(ix) Ninth, to the Servicer, (x) all Indemnified Amounts and (y) reimbursement of all expenses payable to it pursuant to Section 7.7 and any other amounts then due to it under this Agreement, for the payment thereof; and
(x) Tenth, all remaining amounts shall be distributed to the Borrower.
(b) To the extent of available Principal Collections:
(i) First, to the parties listed above, any amount remaining unpaid pursuant to clauses First through Fourth under clause (a) above, in accordance with the priority set forth thereunder;
(ii) Second, pro rata to the Lenders, in an amount equal to the lesser of (x) the Mandatory Prepayment for such Payment Date and (y) such amount as is necessary to reduce the Advances Outstanding to zero, for the payment thereof;
(iii) Third, to the Administrative Agent for payment to each Managing Agent, on behalf the Lenders, the Affected Parties and the Indemnified Parties (other than the Servicer, if the Servicer is an Affiliate of the related LendersBorrower), pro rata in accordance with the amount owed to such Person under this clause Third, all other amounts then due under this Agreement, for the payment thereof;
(iv) Fourth, to the extent not paid by the Servicer, to the Backup Servicer, to the Collateral Custodian, and to any Successor Servicer, as applicable, pro rata in accordance with the amount owed to such Person under this clause Fourth, in an amount equal to any accrued and unpaid Interest Backup Servicer Expenses, Custodial Expenses, Market Servicing Fee Differential, Servicing Fee, Transition Costs and Unused Fee Indemnified Amounts, for such Payment Datethe payment thereof;
(viiiv) EIGHTH, firstFifth, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf Servicer (if an Affiliate of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)Borrower), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, all Indemnified Amounts and (y) reimbursement of all expenses payable to the Administrative Agent for payment it pursuant to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (Section 7.7 and any other than Breakage Costs covered in clause (vii) above) with respect amounts then due to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lenderit under this Agreement, for the portion of payment thereof; and
(vi) Sixth, all remaining amounts shall be distributed to the Obligations constituting unpaid principal of the Swing Advances;Borrower.
Appears in 1 contract
Samples: Credit Agreement (Capitalsource Inc)
Settlement Procedures. (a) On each Payment Date, the Servicer on behalf shall instruct the Securities Intermediary in writing to pay, or if an Event of Default shall have occurred and is continuing, the Borrower Administrative Agent shall pay for receipt by instruct the applicable Lender Securities Intermediary in writing to pay, no later than 11:00 a.m. (12:00 p.m., New York City time) , in each case, based solely on the information in the related Monthly Report, to the following Persons, from (i) the Collection Account, Account (to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (iiAvailable Funds) and from the Reserve Account (iii), minus any amounts required to be deposited to in the Revolver Loan Funding Accounts in accordance with Section 2.14 below being amount of the “Available Collections”related Reserve Account Withdrawal Amount) the following amounts in the following order of priority:
(a) During priority as set forth in the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal CollectionsMonthly Report:
(i) FIRSTfirst, to the Borrowerpro rata, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;based on amounts owing:
(iiA) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereofaccrued and unpaid Servicing Fees;
(ivB) FOURTHto the Backup Servicer, the sum of (1) the accrued and unpaid Backup Servicing Fee and (2) any out-of-pocket expenses and indemnities due to the Backup Servicer (other than Transition Expenses), which in the case of subclause (B)(2) shall not in the aggregate exceed $25,000 in any calendar year;
(C) to the Backup Servicer or other Successor Servicer, any unpaid Transition Expenses (such Transition Expenses not to exceed $250,000 in the aggregate) payable pursuant to Section 7.14(d);
(D) to the Securities Intermediary and the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Computershare), the sum of (1) the accrued and unpaid Securities Intermediary Fee payable to the Securities Intermediary and (2) any out-of-pocket expenses and indemnities due to the Securities Intermediary and the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Computershare), which in the case of subclause (D)(2) shall not in the aggregate exceed $25,000 in any calendar year;
(E) to the 2023-1B SUBI Trustee, to the extent not paid by the Initial Beneficiary or the Servicer, any accrued and unpaid fees, out-of-pocket expenses and indemnities due to the Backup Servicer 2023-1B SUBI Trustee under the 2023-1B SUBI Supplement, which in the case of this subclause (E) shall not in the aggregate exceed $25,000 in any calendar year; and
(ii) second, pro rata, based on amounts owing (A) to any Hedge Counterparty, any net payments due and any Successor Servicerpayable by the Borrower under the related Hedging Agreement other than Hedge Breakage Costs, as applicableand (B) to each applicable Agent for the ratable payment to each Lender (or to the Administrative Agent in the case of Administrative Agent fees, expenses and indemnities for its own account) in an amount equal to any accrued and unpaid Backup Servicing Fee and(1) Senior Interest on the Loans, (2) Unused Commitment Fee, (3) Breakage Costs relating to the Loans, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses (4) all other Aggregate Unpaids allocable to the Loans Outstanding (other than the principal amount of the Loans Outstanding and Market Servicing Fee Differential, each any related Subordinate Interest) then due under this Agreement to the Administrative Agent and the applicable Agents or Lenders for the payment thereofthereof which, in the cases of sub-clauses (3) and (4) (excluding any unpaid Senior Interest payable on the Loans prior to such Payment Date) shall not exceed $50,000 per calendar year;
(iii) third, based on amounts owing (A) first, to each applicable Agent, for the ratable payment (by outstanding Principal Amount) to each Lender, an amount equal to the Monthly Principal Payment Amount and (B) second, to any Hedge Counterparty, any Senior Hedge Breakage Costs;
(iv) fourth, prior to the Revolving Period Termination Date, to the Reserve Account, the amount necessary to cause the amount on deposit therein to equal the Reserve Account Required Amount;
(v) FIFTHfifth, if the Revolving Period Termination Date has occurred, to each applicable Agent for the extent not paid by ratable payment to each Lender, any remaining Available Funds, until the ServicerLoans Outstanding are reduced to zero;
(vi) sixth, to each applicable Agent for the Collateral Custodian ratable payment to each Lender in an amount equal to any accrued and unpaid Collateral Custodian Fee Subordinate Interest Loans and Collateral Custodian Expensesany accrued and unpaid Senior Interest on the Loans, if anyBreakage Costs and other Aggregate Unpaids due to the Lenders and not paid pursuant to clause (iv) above;
(vii) seventh, to any Hedge Counterparty, any Subordinated Hedge Breakage Costs due but not paid;
(viii) eighth, all other Aggregate Unpaids (other than the principal amount of the Loans Outstanding) then due under this Agreement to the Affected Parties or the Indemnified Parties, for the payment thereof;
(viix) SIXTHninth, pro rata, based on amounts owing to the Backup Servicer, the Servicer, in an amount equal the Securities Intermediary, the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Computershare) and the 2023-1B SUBI Trustee, any fees, expenses, indemnities and Transition Expenses not previously paid pursuant to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of clause (i) the Borrowing Base or above, as applicable; and
(iix) the Facility Amounttenth, together with the any remaining amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified shall be distributed to the Borrower by Borrower.
(b) For the applicable Lender(s))avoidance of doubt, pro rata; provided, however, that to the extent it is hereby agreed that (i) accrued and unpaid fees, expenses and indemnities payable to the Termination Date has Securities Intermediary, the Servicer, the Backup Servicer (including in its capacity as Successor Servicer), the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Computershare) or the 2023-1B SUBI Trustee in excess of the aggregate annual maximum amount for any year (as set forth in Section 2.08(a)(i) and (ii)) and not occurred paid pursuant to Section 2.08(a)(xi) shall be reimbursable in subsequent years in the same order of priority and subject to the same limitations as set forth above until paid in full, and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, caps set forth in the amount of unpaid Breakage Costs Section 2.08(a)(i) and (other than Breakage Costs covered in clause (vii) aboveii) with respect to any prepayments made on such Payment Date Increased Coststhe out-of-pocket expenses, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion losses and indemnities of the Obligations constituting unpaid principal Securities Intermediary, the Backup Servicer, the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Computershare) and the 2023-1B SUBI Trustee shall not be applicable upon the occurrence and during the continuance of any Event of Default. In making the Swing Advances;payments required under this Section 2.08, the Securities Intermediary shall have no duty to make any determination, calculation or verification regarding any amounts to be paid or the recipients of such amounts, and shall be entitled to rely exclusively and conclusively on the related Monthly Report.
Appears in 1 contract
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, upon the occurrence and during the continuance of a Ratings Event, if so requested by the Administrative Agent, promptly upon (but in no event later than one (1) Business Day after) receipt of such request, segregate in a separate account approved by the Administrative Agent, which shall be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Borrower or received in any Lock-Box or Collection Account; provided, however, that so long as each of the conditions precedent set forth in Section 5.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to (i) pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreements or (ii) make any Restricted Payment permitted by Section 7.01(r) (each such release, a “Release”). On each Payment Settlement Date, the Servicer on behalf (or, following its assumption of control of the Borrower shall pay for receipt by Collection Accounts, the applicable Lender no later than 11:00 a.m. (New York City timeAdministrative Agent) to the following Personsshall, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during distribute such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts Collections in the following order of priority:
(ai) During first, to the Revolving PeriodServicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer);
(ii) second, to each Lender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 4.03 and 12.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 4.03 and 12.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (x), (y) or (z) below, as applicable:
(A) prior to the occurrence of the Termination Date, to the extent that a Borrowing Base Deficit exists on such date, to the Lenders (ratably, based on the aggregate outstanding Capital of each Lender at such time) for the payment of a portion of the outstanding Aggregate Capital at such time, in an aggregate amount equal to the amount necessary to reduce the Borrowing Base Deficit to zero ($0);
(B) on and after the occurrence of the Termination Date, to each Lender (ratably, based on the aggregate outstanding Capital of each Lender at such time) for the payment in full of the aggregate outstanding Capital of such Lender at such time; or
(C) prior to the occurrence of the Termination Date, at the election of the Borrower from time to time and in accordance with Section 2.02(d), to the payment of all or any portion of the outstanding Capital of the Lenders at such time (ratably, based on the aggregate outstanding Capital of each Lender at such time);
(iv) fourth, to the Credit Parties, the Affected Persons and the Borrower Indemnified Parties (ratably, based on the amount due and owing at such time), for the payment of all other Borrower Obligations then due and owing by the Borrower to the Credit Parties, the Affected Persons and the Borrower Indemnified Parties; and
(v) fifth, the balance, if any, to be paid to the Borrower for its own account.
(b) All payments or distributions to be made by the Servicer, the Borrower and any other Person to the Lenders (or their respective related Affected Persons and the Borrower Indemnified Parties) shall be paid or distributed to the related Group Agent at its Group Agent’s Account. Each Group Agent, upon its receipt in the applicable Group Agent’s Account of any such payments or distributions, shall distribute such amounts to the applicable Lenders, Affected Persons and the Borrower Indemnified Parties within its Group ratably; provided that if such Group Agent shall have received insufficient funds to pay all of the above amounts in full on any such date, such Group Agent shall pay such amounts to the applicable Lenders, Affected Persons and the Borrower Indemnified Parties within its Group in accordance with the priority of payments set forth above, and with respect to any such category above for which there are insufficient funds to pay all amounts owing on such date, ratably (based on the amounts in such categories owing to each such Person in such Group) among all such Persons in such Group entitled to payment thereof.
(c) If and to the extent the Administrative Agent, any Credit Party, any Affected Person or any Borrower Indemnified Party shall be required for any reason to pay over to any Person any amount received on its behalf hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Borrower and, accordingly, the Administrative Agent, such Credit Party, such Affected Person or such Borrower Indemnified Party, as the case unless otherwise specified belowmay be, applying Interest Collections first, and then Principal Collectionsshall have a claim against the Borrower for such amount.
(d) For the purposes of this Section 3.01:
(i) FIRSTif, to the Borroweron any day, the aggregate amount Outstanding Balance of fees any Pool Receivable is either (including up-fronti) reduced, continuing adjusted or success feescanceled as a result of (A) received any defective, rejected or returned goods or services, any cash or other discount, or any failure by an Originator to deliver any goods or perform any services or otherwise perform under the underlying Contract or invoice, (B) any change in respect or cancellation of any of the Transferred Loans;
(ii) SECOND, to each Hedge Counterpartyterms of such Contract or invoice or any other adjustment by an Originator, any amounts owing that Hedge Counterparty under its respective Hedging Agreement Sub-Servicer, the Servicer or the Borrower which reduces the amount payable by the Obligor on the related Receivable, (C) any rebates, warranties, allowances or charge-backs or (D) any setoff or credit in respect of any Hedge Transaction(sclaim by the Obligor thereof (whether such claim arises out of the same or a related transaction or an unrelated transaction), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) subject to any specific dispute, offset, counterclaim or defense whatsoever (except the Facility Amountdischarge in bankruptcy of the Obligor thereof), together with then the Borrower shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of Breakage Costs incurred by such reduction, adjustment or cancelation and, if an Event of Default or Unmatured Event of Default exists or if the Purchase and Sale Termination Date shall have occurred and, in each case, if the applicable Lenders Originator has made a related payment in connection with any such payment (as such Breakage Costs are notified cash to the Borrower pursuant to Section 3.3(c) of each Purchase and Sale Agreement, shall immediately pay any and all such amounts in respect thereof to a Collection Account (or as otherwise directed by the applicable Lender(sAdministrative Agent at such time) for the benefit of the Credit Parties for application pursuant to Section 3.01(a)), pro rata; provided, however, that if a Receivable’s Purchase Price has been reduced by the full Outstanding Balance thereof pursuant to Section 3.3(a) of each Purchase and Sale Agreement and such reduction has been accounted to the Borrower and applied in accordance with Section 3.3(c) of each Purchase and Sale Agreement, then the Borrower shall thereafter deliver to the applicable Originator any payments thereafter received by the Borrower on account of such Receivable’s Outstanding Balance in accordance with the Borrower’s obligations under the proviso to Section 3.3(a) of each Purchase and Sale Agreement;
(ii) if on any day any of the representations or warranties in Section 6.01(p) was not true with respect to any Pool Receivable when made, the Borrower shall be deemed to have received on such day a Collection of such Pool Receivable in full and, if an Event of Default or Unmatured Event of Default exists or if the Purchase and Sale Termination Date shall have occurred and, in each case, if the applicable Originator has made a related payment in cash to the Borrower pursuant to Section 3.3(c) of the applicable Purchase and Sale Agreement, shall immediately pay the amount of such deemed Collection to a Collection Account (or as otherwise directed by the Administrative Agent at such time) for the benefit of the Credit Parties for application pursuant to Section 3.01(a) (Collections deemed to have been received pursuant to Section 3.01(d)(i) and (ii) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) except as provided in clauses (i) or (ii) above or otherwise required by Applicable Law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied in accordance with the Credit and Collection Policy; and
(iv) if and to the extent the Administrative Agent, any Credit Party, any Affected Person or any Borrower Indemnified Party shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Borrower and, accordingly, such Person shall have a claim against the Borrower for such amount, payable when and to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one any distribution from or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata Obligor is made in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;thereof.
Appears in 1 contract
Settlement Procedures. On each Payment Date, the Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. 2:00 p.m. (New York City time) to ), the following PersonsPaying Agent, based solely on the Monthly Report delivered for the most recent Reporting Date (upon which the Paying Agent may conclusively rely), shall, from (i) amounts on deposit in the Collection AccountAccount (including, to the extent without limitation, amounts received in respect of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period) to the extent received on or before the last day of the related Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) ), cause to be disbursed the following amounts in the following order of priority:
(a) During the Revolving PeriodPeriod and prior to the occurrence and continuance of an Event of Default, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Available Collections:
(i) FIRSTFirst, to the BorrowerServicer in an amount equal to any Unreimbursed Servicer Advances, for the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loanspayment thereof;
(ii) SECONDSecond, to the Servicer, in an amount equal to its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(iii) Third, ratably, (A) to any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Transition Costs and Market Servicing Fee Differential, each for the payment thereof, (B) to the Bank Parties, the Collection Account Bank and the Funding Account Bank in an amount equal to any accrued and unpaid (including with respect to prior Payment Dates) Bank Fees and Expenses, if any, for the payment thereof in an aggregate amount under this clause (B), excluding Bank Fees, not to exceed the Bank Expense Cap, and (C) to the Administrative Agent, in an amount equal to any accrued and unpaid Administrative Agent Fee and Administrative Expenses;
(iv) Fourth, to each Hedge Counterparty, any amounts owing that to such Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTHFifth, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viiivi) EIGHTHSixth, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s))Maximum Availability, pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ixvii) NINTHSeventh, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing to that Hedge Counterparty;
(xviii) TENTHEighth, ratably, to any Successor Servicer, as applicable, and the Administrative Agent for payment Bank Parties, the Collection Account Bank and the Funding Account Bank in an amount equal to all other amounts then due under this Agreement or any other Transaction Document to any Successor Servicer, the Bank Parties, the Collection Account Bank or the Funding Account Bank (including Bank Fees and Expenses), in each case to the extent not paid pursuant to clause Third above;
(ix) Ninth, to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, Breakage Costs and/or Taxes (if any);
(xix) ELEVENTHTenth, to the Swingline LenderAdministrative Agent, the Lenders, the Affected Parties and Indemnified Parties, all other amounts or Obligations then due under this Agreement or the other Transaction Documents to the Administrative Agent, the Lenders, the Affected Parties or Indemnified Parties, each for the payment thereof;
(xi) Eleventh, to the Servicer, all other amounts then due under this Agreement or the other Transaction Documents to the Servicer, for the portion payment thereof; and
(xii) Twelfth, all remaining amounts to the Borrower’s Funding Account.
(b) During the Amortization Period or following the occurrence and during the continuance of an Event of Default, to the extent of Available Collections:
(i) First, to the Servicer in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(ii) Second, to the Servicer, in an amount equal to its accrued and unpaid Servicing Fees to the end of the Obligations constituting preceding Settlement Period for the payment thereof;
(iii) Third, ratably, (A) to any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid principal Transition Costs and Market Servicing Fee Differential, each for the payment thereof, (B) to the Bank Parties, the Collection Account Bank and the Funding Account Bank in an amount equal to any accrued and unpaid (including with respect to prior Payment Dates) Bank Fees and Expenses, if any, for the payment thereof, and (C) to the Administrative Agent, in an amount equal to any accrued and unpaid Administrative Agent Fee and Administrative Expenses;
(iv) Fourth, to each Hedge Counterparty, any amounts owing to such Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(v) Fifth, to each Managing Agent, on behalf of the Swing Advancesrelated Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(vi) Sixth, ratably to each Managing Agent, on behalf of the related Lenders, in an amount to reduce Advances Outstanding to zero;
(vii) Seventh, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing to that Hedge Counterparty;
(viii) Eighth, to any Successor Servicer, in an amount equal to all other amounts then due under this Agreement or any other Transaction Document to any Successor Servicer to the extent not paid pursuant to clause Third above;
(ix) Ninth, to each Managing Agent, on behalf of the related Lenders, in the amount of Increased Costs, Breakage Costs and/or Taxes (if any);
(x) Tenth, to the Administrative Agent, the Lenders, the Affected Parties and Indemnified Parties, all other amounts or Obligations then due under this Agreement or the other Transaction Documents to the Administrative Agent, the Lenders, the Affected Parties or Indemnified Parties, each for the payment thereof;
(xi) Eleventh, to the Servicer, all other amounts then due under this Agreement or the other Transaction Documents to the Servicer, for the payment thereof; and
(xii) Twelfth, all remaining amounts to the Borrower’s Funding Account.
Appears in 1 contract
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, at any time when an Event of Termination has occurred and is continuing or the Administrative Agent is then exercising exclusive control or any other remedies with respect to any Lock-Box Account, and if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which shall be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer (including pursuant to Section 8.04(d)) or the Borrower or received in any Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 5.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections (x) the amount (if any) necessary to pay the purchase price for Receivables 760715600 23750643 purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement or (y) amounts owing by the Borrower to an Originator under any Subordinated Note (each such release of Collections, a “Release”). On each Payment Settlement Date, the Servicer on behalf (or, following its assumption of control of the Borrower shall pay for receipt by Lock-Box Accounts, the applicable Lender no later than 11:00 a.m. (New York City timeAdministrative Agent) to the following Personsshall, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts distribute Collections on all Pool Receivables in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRSTfirst, to the BorrowerServicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of Servicing Fees payable for any prior Interest Period to the Transferred Loansextent such amount has not been distributed to the Servicer);
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTHsecond, to the Administrative Agent for payment distribution to each Managing AgentLender and other Credit Party (ratably, based on behalf of the related Lendersamount then due and owing), in an amount equal to any all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 4.03 and Unused Fee 12.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 4.03 and 12.01 in respect of such payments) payable for any prior Interest Period to the extent such Payment Dateamount has not been distributed to such Lender or Credit Party;
(viiiiii) EIGHTHthird, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered set forth in clause (viix), (y) aboveor (z) with respect to any prepayments made on such Payment Date Increased Costsbelow, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;as applicable:
Appears in 1 contract
Samples: Receivables Financing Agreement (Agiliti, Inc. \De)
Settlement Procedures. (a) On each Payment Date, so long as (i) no Event of Default has occurred and is continuing and (ii) the Servicer Termination Date has not been declared or deemed to have occurred pursuant to Section 9.2(a), the Collateral Custodian shall transfer, in reliance on behalf the information set forth in the applicable Payment Date Statement, collected Interest Collections held by the Securities Intermediary in the Borrower’s Interest Collection Accounts or any subaccount thereof as of the Borrower shall pay end of the related Collection Period, to the extent of Available Funds, for receipt by payments of the applicable Lender no later than 11:00 a.m. (New York City time) following amounts, to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:priority (the “Interest Collections Priority”):
(a1) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
pro rata (i) FIRST, to the BorrowerState of Delaware, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee andDelaware Expenses and (ii) to the applicable Governmental Authority, any Tax which, if anynot paid, accrued could result in a Lien on any of the Collateral; provided that the aggregate amount payable pursuant to this Section 2.7(a)(1), Section 2.7(b)(1) and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereofSection 2.8(1) may not exceed $15,000 per annum;
(v2) FIFTH, pro rata to the extent not paid by the Servicer, to (i) the Collateral Custodian in Custodian, an amount equal to any accrued and unpaid Collateral Custodian Fee Fees and (ii)(A) the Collateral Custodian ExpensesCustodian, if anyan amount equal to any accrued and unpaid Administrative Expenses incurred by it, for (B) the payment thereofSecurities Intermediary, an amount equal to any amounts then due and payable to it under the Securities Account Control Agreement (or any Additional Securities Account Control Agreement, as applicable) and (C) the Collateral Administrator, an amount equal to any amounts then due and payable to it under the Collateral Administration Agreement; provided that, the aggregate amount payable pursuant to this Section 2.7(a)(2), Section 2.7(b)(2) and Section 2.8(2) may not exceed $150,000 per annum;
(vi3) SIXTH, pro rata to the ServicerAdministrative Agent and each Lender, in an amount equal to (Ai) if any indemnification payments then due and payable to it and (ii) any Administrative Expenses then due and payable to it; provided that the Servicer is Gladstone Management Corporation or aggregate amount payable pursuant to this Section 2.7(a)(3), Section 2.7(b)(3) and Section 2.8(3) may not exceed $250,000 per annum;
(4) pro rata to each Lender, an amount equal to any of its Affiliates, its accrued and unpaid Servicing Fees Breakage Costs; provided that, the aggregate amount payable pursuant to the end of the preceding Settlement Periodthis Section 2.7(a)(4), up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof Section 2.7(b)(4) and (BSection 2.8(4) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereofmay not exceed $100,000 per annum;
(vii5) SEVENTH, to the Administrative Agent for payment Collateral Manager, an amount equal to any Collateral Manager Reimbursable Expenses then due and payable to it; provided that, the aggregate amount payable pursuant to this Section 2.7(a)(5), Section 2.7(b)(5) and Section 2.8(5) may not exceed $100,000 per annum;
(6) first, (i) pro rata to each Managing AgentLender, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest then due and Unused Fee for payable to it under this Agreement, second, (ii) if such Payment Date is a Structuring Fee Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf any accrued and unpaid Structuring Fee (together with any portion of the related LendersStructuring Fee that was due and payable on a prior Structuring Fee Payment Date but has not yet been paid then due and payable to it under this Agreement) and third, (iii) to the Equity Investor as a Permitted RIC Distribution;
(7) to the Collateral Manager, an amount equal to any accrued and unpaid Collateral Management Fee (unless waived or reduced by delivery of a Collateral Manager Waiver Notice);
(8) following a failure of the excessMarket Value Ratio Test to be satisfied, (a) during the Aggregation Period, at the election of the Collateral Manager, (i) to a Principal Collection Account as Principal Collections for the purchase of additional Collateral Obligations or (ii) to repay the Outstanding Funded Loans, or (b) following the Aggregation Period, to repay the Outstanding Funded Loans, in each case, until the earlier to occur of (1) the reduction of the Outstanding Funded Loans to zero and (2) the Market Value Ratio is greater than or equal to 115.0%;
(9) if any(a) the Overcollateralization Ratio Test is not satisfied as of the related Determination Date, of Advances pro rata to each Lender to repay Outstanding over Funded Loans until the lesser earlier to occur of (i) the Borrowing Base or reduction of the Outstanding Funded Loans to zero and (ii) the Facility Amountsatisfaction of the Overcollateralization Ratio Test and (b) on or following the Fully Ramped Target Date, together with any Concentration Limit is not satisfied following any application of Interest Collections pursuant to subclause (a) of this clause (9), to the Borrower’s Principal Collection Account as Principal Collections, until each Concentration Limit is satisfied;
(10) to the extent not paid pursuant to Section 2.7(a)(1) through (3) and (5), (i) first, in the order and priority set forth in Section 2.7(a)(1) through (3) and (5), to each applicable party, an amount of Breakage Costs incurred by equal to all other unpaid Administrative Expenses then due and payable to it and (ii) second, pro rata to any other Person, all Administrative Expenses then due and payable to it under the Transaction Documents;
(11) to the applicable Lenders Governmental Authority, any Tax which, if not paid, could result in connection with a Lien on any such payment of the Collateral;
(as such Breakage Costs are notified 12) all remaining amounts, at the election of the Equity Investors, (i) to the Borrower by as a Capital Contribution and (ii) the applicable Lender(s)), pro rata; provided, however, that remainder to the extent that Equity Investors as a dividend payable on their respective Preference Shares in accordance with the Equity Purchase Agreement, free and clear of the Lien of the Collateral Custodian.
(b) On each Payment Date, so long as (i) no Event of Default has occurred and is continuing and (ii) the Termination Date has not been declared or deemed to have occurred pursuant to Section 9.2(a), the Collateral Custodian shall transfer, in reliance on the information set forth in the applicable Payment Date Statement, collected Principal Collections held by the Securities Intermediary in the Borrower’s Principal Collection Accounts or any subaccount thereof as of the end of the related Collection Period, to the extent of Available Funds, for payment of the following amounts, to the following Persons, in the following order of priority (the “Principal Collections Priority”):
(1) to the extent not paid pursuant to Section 2.7(a)(1), pro rata (i) to the State of Delaware, an amount equal to any accrued and unpaid Delaware Expenses, and (ii) Advances Outstanding to the applicable Governmental Authority, any Tax which, if not paid, could result in a Lien on any of the Collateral; provided that the aggregate amount payable pursuant to Section 2.7(a)(1), this Section 2.7(b)(1) and Section 2.8(1) may not exceed $15,000 per annum;
(2) to the Facility Amount due extent not paid pursuant to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders onlySection 2.7(a)(2), pro rata in accordance with their Advances Outstandingto (i) the Collateral Custodian, an amount equal to any accrued and unpaid Collateral Custodian Fees and (ii)(A) the Collateral Custodian, an amount equal to any accrued and unpaid Administrative Expenses incurred by it, (B) the Securities Intermediary, an amount equal to any amounts then due and payable to it under the Securities Account Control Agreement (or any Additional Securities Account Control Agreement, as applicable) and (C) the Collateral Administrator, an amount equal to any amounts then due and payable to it under the Collateral Administration Agreement; provided that the aggregate amount payable pursuant to Section 2.7(a)(2), this Section 2.7(b)(2) and Section 2.8(2) may not exceed $150,000 per annum;
(ix3) NINTHto the extent not paid pursuant to Section 2.7(a)(3), pro rata to the Administrative Agent and each Hedge CounterpartyLender, an amount equal to (i) any Swap Breakage indemnification payments then due and Indemnity Amounts owing payable to it and (iii) any Administrative Expenses then due and payable to it; provided that Hedge Counterpartythe aggregate amount payable pursuant to Section 2.7(a)(3), this Section 2.7(b)(3) and Section 2.8(3) may not exceed $250,000 per annum;
(x4) TENTHto the extent not paid pursuant to Section 2.7(a)(4), pro rata to each Lender, an amount equal to any accrued and unpaid Breakage Costs; provided that, the aggregate amount payable pursuant to Section 2.7(a)(4), this Section 2.7(b)(4) and Section 2.8(4) may not exceed $100,000 per annum;
(5) to the extent not paid pursuant to Section 2.7(a)(5), to the Collateral Manager, an amount equal to any Collateral Manager Reimbursable Expenses then due and payable to it; provided that, the aggregate amount payable pursuant to Section 2.7(a)(5), this Section 2.7(b)(5) and Section 2.8(5) may not exceed $100,000 per annum;
(6) to the extent not paid pursuant to Section 2.7(a)(6), first, (i) pro rata to each Lender, an amount equal to any accrued and unpaid Interest then due and payable to it under this Agreement, second, (ii) if such Payment Date is a Structuring Fee Payment Date, to the Administrative Agent for payment to each Managing Agent, on behalf any accrued and unpaid Structuring Fee (together with any portion of the related LendersStructuring Fee that was due and payable on a prior Structuring Fee Payment Date but has not yet been paid then due and payable to it under this Agreement) and third, in (iii) to the Equity Investor as a Permitted RIC Distribution;
(7) to the extent not paid pursuant to Section 2.7(a)(7), to the Collateral Manager, an amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect equal to any prepayments made on such Payment Date Increased Costs, and/or Taxes accrued and unpaid Collateral Management Fee (if anyunless waived or reduced by delivery of a Collateral Manager Waiver Notice);
(xi8) to the extent not paid pursuant to Section 2.7(a)(9), if the Overcollateralization Ratio Test is not satisfied as of the related Determination Date, pro rata to each Lender to repay Outstanding Funded Loans until the earlier to occur of (i) ELEVENTHthe reduction of the Outstanding Funded Loans to zero and (ii) the satisfaction of the Overcollateralization Ratio Test;
(9) during the Aggregation Period, to the Swingline LenderBorrower’s Principal Collection Account or any subaccount thereof, an amount determined by the Collateral Manager in its sole discretion for reinvestment in Additional Collateral Obligations;
(10) to the portion Lenders to repay Outstanding Funded Loans until the Outstanding Funded Loans are reduced to zero;
(11) to the extent not paid pursuant to Section 2.7(a)(10), (i) first, in the order and priority set forth in Section 2.7(b)(1) through (3) and (5), to each applicable party, an amount equal to all other unpaid Administrative Expenses then due and payable to it and (ii) second, pro rata to any other Person, all Administrative Expenses then due and payable to it under the Transaction Documents;
(12) to the extent not paid pursuant to Section 2.7(a)(11), to the applicable Governmental Authority, any Tax which, if not paid, could result in a Lien on any of the Obligations constituting unpaid principal Collateral; and
(13) all remaining amounts to the Equity Investors as a dividend payable on their respective Preference Shares in accordance with the Equity Purchase Agreement, free and clear of the Swing Advances;Lien of the Collateral Custodian.
Appears in 1 contract
Samples: Revolving Loan Agreement (Owl Rock Core Income Corp.)
Settlement Procedures. (a) On each Payment Date, the Servicer on behalf shall instruct the Account Bank to pay, or if an Event of Default shall have occurred and is continuing, the Borrower Administrative Agent shall pay for receipt by instruct the applicable Lender Account Bank to pay, no later than 11:00 a.m. (12:00 p.m., New York City time) , in each case, based solely on the information in the related Monthly Report, to the following Persons, from (i) the Collection Account, Account (to the extent of available funds, Available Funds) and from the Reserve Account (ii) Servicer Advances, and (iii) amounts received in respect the amount of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (irelated Reserve Account Withdrawal Amount), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During priority as set forth in the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal CollectionsMonthly Report:
(i) FIRSTFirst, to the Borrowerpro rata, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any based on amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iiiA) THIRD, to the Servicer, the accrued and unpaid Servicing Fee, (B) to the Backup Servicer, the sum of (1) the accrued and unpaid Backup Servicing Fee and (2) any out-of-pocket expenses and indemnities due to the Backup Servicer, which in an amount equal the case of subclause (B)(2) shall not in the aggregate exceed $25,000 in any calendar year, (C) to the Successor Servicer, any Unreimbursed Servicer Advancesunpaid Transition Expenses (such Transition Expenses not to exceed $250,000 in the aggregate) payable pursuant to Section 7.14(d), for (D) to the payment thereof;
Image File Custodian, the sum of (iv1) FOURTHthe accrued and unpaid Image File Custodian Fee and (2) any out-of-pocket expenses and indemnities due to the Image File Custodian, which in the case of subclause (D)(2) shall not in the aggregate exceed $25,000 in any calendar year, (E) to the Account Bank and the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Xxxxx Fargo Bank), the sum of (1) the accrued and unpaid Account Bank Fee payable to the Account Bank and (2) any out-of-pocket expenses and indemnities due to the Account Bank and the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Xxxxx Fargo Bank), which in the case of subclause (E)(2) shall not in the aggregate exceed $25,000 in any calendar year, and (F) to the 2017-1A SUBI Trustee, to the extent not paid by the Initial Beneficiary or the Servicer, any accrued and unpaid fees, out-of-pocket expenses and indemnities due to the Backup Servicer 2017-1A SUBI Trustee under the 2017-1A SUBI Supplement, which in the case of subclause (F) shall not in the aggregate exceed $25,000 in any calendar year;
(ii) Second, pro rata, based on amounts owing (A) to any Hedge Counterparty, any net payments due and any Successor Servicerpayable by the Borrower under the related Hedging Agreement other than Hedge Breakage Costs, as applicable, and (B) to each applicable Agent for the ratable payment to each Class A Lender in an amount equal to any accrued and unpaid Backup Servicing Fee and(1) Senior Interest on the Class A Loans, if any, accrued (2) Breakage Costs relating to any Class A Loans and unpaid Transition Costs, Backup Servicer Expenses (3) all other Aggregate Unpaids allocable to the Loans Outstanding that are Class A Loans (other than the principal amount of the Loans Outstanding and Market Servicing Fee Differential, each any related Subordinate Interest) then due under this Agreement to the Administrative Agent and the applicable Agents or Class A Lenders for the payment thereof, which in the case of subclauses (2) and (3) (excluding any unpaid Senior Interest due on the Class A Loans prior to such Payment Date) shall not exceed $50,000 in any calendar year;
(viii) FIFTHThird, to each applicable Agent for the extent not paid by the Servicer, ratable payment to the Collateral Custodian each Class B Lender in an amount equal to any accrued and unpaid Collateral Custodian Fee (1) Senior Interest on the Class B Loans, (2) Breakage Costs relating to any Class B Loans and Collateral Custodian Expenses, if any, (3) all other Aggregate Unpaids allocable to the Loans Outstanding that are Class B Loans (other than the principal amount of the Loans Outstanding and any related Subordinate Interest) then due under this Agreement to the applicable Agents or Lenders for the payment thereof, which in the case of subclauses (2) and (3) (excluding any unpaid Senior Interest due on the Class B Loans prior to such Payment Date) shall not exceed $50,000 in any calendar year;
(iv) Fourth, based on amounts owing (A) first, to each applicable Agent, for the ratable payment (by outstanding Principal Amount) to each Class A Lender, an amount equal to the Class A Monthly Principal Payment Amount, (B) second, to each applicable Agent, for the ratable payment (by outstanding Principal Amount) to each Class B Lender, an amount equal to the Class B Monthly Principal Payment Amount; and (C) third, to any Hedge Counterparty, any Senior Hedge Breakage Costs;
(v) Fifth, prior to the Revolving Period Termination Date, to the Reserve Account, the amount necessary to cause the amount on deposit therein to equal the Reserve Account Required Amount
(vi) SIXTHSixth, to if the ServicerRevolving Period Termination Date has occurred, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliatesfirst, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, each applicable Agent for the ratable payment thereof to each Class A Lender, any remaining Available Funds, until the Loans Outstanding that are Class A Loans are reduced to zero, and (B) otherwisesecond, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period each applicable Agent for the ratable payment thereofto each Class B Lender, any remaining Available Funds, until the Loans Outstanding that are Class B Loans are reduced to zero;
(vii) SEVENTHSeventh, to the Administrative each applicable Agent for the ratable payment to each Managing Agent, on behalf of the related Lenders, Class A Lender in an amount equal to any accrued and unpaid Subordinate Interest on the Class A Loans and Unused Fee for such Payment Date;
(viii) EIGHTHany accrued and unpaid Senior Interest on the Class A Loans, first, Breakage Costs and other Aggregate Unpaids due to the extent of available Principal Collections, Class A Lenders and second, not paid pursuant to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or clause (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstandingabove;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;
Appears in 1 contract
Settlement Procedures. (a) On each Payment Date, so long as no Event of Default has occurred and is continuing, the Servicer on behalf of InvestmentCollateral Manager shall direct the Borrower Collateral Custodian (which direction shall pay for be deemed given upon receipt by the applicable Lender no later than 11:00 a.m. Collateral Custodian of the related Reporting Date Report), who shall direct the Account Bank, to pay pursuant to the latest Reporting Date Report (New York City timeand the Collateral Custodian shall direct the Account Bank to make payment from the Interest Collection Account to the extent of Available Funds, in reliance on the information set forth in such Reporting Date Report) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a1) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian Custodian, the Document Custodian, and the Account Bank pro rata, in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereofFees;
(vi2) SIXTHto the Hedge Counterparty, the aggregate net amount then due and payable to the Hedge Counterparty under each applicable Hedging Agreement (excluding Hedge Breakage Costs);
(3) to the InvestmentCollateral Manager (including, for avoidance of doubt, the Replacement Servicer, if applicable), first, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or pay any of its Affiliates, its accrued and unpaid Servicing InvestmentCollateral Management Fees and, second, to the end pay all documented fees and expenses of the preceding Settlement PeriodInvestmentCollateral Manager (including, up without limitation, reasonable attorney’s fees, costs and expenses) in an aggregate amount with respect to such documented fees and expenses in any rolling 12-month period not greater than the Servicing Fee Limit Amount for such Settlement Period, for greater of (i) 0.20% of the payment thereof aggregate outstanding principal value of all Eligible Loans and (Bii) $250,000; provided that so long as CM Investment Partners LLC is InvestmentCollateral Manager, such fee shall be waived until such time as IM directs the Custodian otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii4) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest fees, expenses and Unused Fee indemnities set forth in the Transaction Documents, including, for such Payment Datethe avoidance of doubt, any accrued and unpaid fees, expenses and indemnities of Administrative Agent and unpaid Administrative Expenses;
(viii5) EIGHTHto the Administrative Agent to be distributed pro rata to each Lender, in an amount equal to (a) any accrued and unpaid Interest with respect to Advances made by such Lender, (b) any accrued and unpaid Non-Usage Fee (such Non-Usage Fee to be allocated based on the unused Commitment of each Lender) and (c) any accrued and unpaid Breakage Costs;
(6) to the Hedge Counterparty, any other amounts (including any Hedge Breakage Costs) incurred by the Hedge Counterparty under the applicable Hedging Agreement then due and payable, net of any amounts then due and payable to the Borrower under such applicable Hedging Agreement;
(7) to the Administrative Agent to be distributed pro rata to each Lender, in an amount equal to, if the Facility Amount has been terminated in whole pursuant to Section 2.3(c), the Advances Outstanding;
(8) [Reserved];
(9) to the Administrative Agent to be distributed pro rata to each Lender, if a Borrowing Base Deficiency exists, an amount necessary to reduce the Borrowing Base Deficiency to zero, pro rata in accordance with the amount of Advances Outstanding hereunder;
(10) (a) during the Revolving Period, to fund the Unfunded Exposure Account in an amount necessary to cause all amounts in the Unfunded Exposure Account to equal the Aggregate Unfunded Exposure Equity Amount, or (b) after the Revolving Period, to fund the Unfunded Exposure Account in an amount necessary to cause the amounts in the Unfunded Exposure Account to equal the Aggregate Unfunded Exposure Amount;
(11) first, to be distributed to the extent of available Principal CollectionsCollateral Custodian, Document Custodian and Account Bank, any accrued and unpaid Collateral Custodian Fees not paid pursuant to Section 2.7(a)(1), and second, to the Administrative Agent to be distributed to the Administrative Agent, any applicable Lender, and the Indemnified Parties, or the Secured Parties, as applicable, all other amounts then due and owing, including, without limitation, any unpaid Administrative Expenses, any amounts accrued and unpaid under the Fee Letter, Increased Costs, Taxes, indemnities, but other than the principal of Advances Outstanding, then due under this Agreement; and
(12) any remaining amounts shall be distributed to the Borrower or any nominee thereof, which amounts may be used by the Borrower to make Restricted Payments.
(b) On each Payment Date, so long as no Event of Default has occurred and is continuing, the InvestmentCollateral Manager shall direct (which direction shall be deemed given upon receipt by the Collateral Custodian of the related Reporting Date Report) the Collateral Custodian, who shall direct the Account Bank, to pay pursuant to the latest Reporting Date Report (and the Collateral Custodian shall direct the Account Bank to make payment from the Principal Collection Account to the extent of available Interest CollectionsAvailable Funds, in reliance on the information set forth in such Reporting Date Report) to the following Persons, the following amounts in the following order of priority:
(1) to the extent not paid pursuant to Section 2.7(a), to the Collateral Custodian, the Document Custodian and the Account Bank, pro rata, in an amount equal to any accrued and unpaid Collateral Custodian Fees;
(2) to the extent not paid pursuant to Section 2.7(a), to the Hedge Counterparty, the aggregate net unpaid amount then due and payable to the Hedge Counterparty under each applicable Hedging Agreement (excluding Hedge Breakage Costs);
(3) to the extent not paid pursuant to Section 2.7(a), to the InvestmentCollateral Manager, in an amount equal to any accrued and unpaid InvestmentCollateral Management Fees;
(4) to the extent not paid pursuant to Section 2.7(a), to the Administrative Agent, in an amount equal to any accrued and unpaid fees, expenses and indemnities set forth in the Transaction Documents, including, for the avoidance of doubt, any accrued and unpaid fees, expenses and indemnities of Administrative Agent and unpaid Administrative Expenses;
(5) to the extent not paid pursuant to Section 2.7(a), to the Administrative Agent for payment to be distributed pro rata to each Managing AgentLender, on behalf of the related Lenders, in an amount equal to (a) any accrued and unpaid Interest with respect to Advances made by such Xxxxxx, (b) any accrued and unpaid Non-Usage Fee (such Non-Usage Fee to be allocated based on the excessunused Commitment of each Lender) and (c) any accrued and unpaid Breakage Costs;
(6) to the extent not paid pursuant to Section 2.7(a), to the Hedge Counterparty, any other unpaid amounts (including any Hedge Breakage Costs) incurred by the Hedge Counterparty under the applicable Hedging Agreement then due and payable, net of any amounts then due and payable to the Borrower under such applicable Hedging Agreement;
(7) to the extent not paid pursuant to Section 2.7(a), to the Administrative Agent to be distributed pro rata to each Lender, in an amount equal to if the Facility Amount has been terminated in whole pursuant to Section 2.3(c), the Advances Outstanding;
(8) [Reserved];
(9) (x) during the Revolving Period, to fund the Unfunded Exposure Account in an amount necessary to cause all amounts in the Unfunded Exposure Account to equal the Aggregate Unfunded Exposure Equity Amount, or (y) after the Revolving Period, to fund the Unfunded Exposure Account in an amount necessary to cause the amounts in the Unfunded Exposure Account to equal the Aggregate Unfunded Exposure Amount;
(10) (a) during the Revolving Period, to the extent not paid pursuant to Section 2.7(a), to the Administrative Agent to be distributed pro rata to each Lender, if anya Borrowing Base Deficiency exists, of Advances Outstanding over the lesser of (i) an amount necessary to reduce the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified Deficiency to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders onlyzero, pro rata in accordance with their the amount of Advances Outstanding hereunder and (b) after the end of the Revolving Period, to the Lenders to pay the Advances Outstanding;
(ix11) NINTHto the extent not paid pursuant to Section 2.7(a), first, to each Hedge Counterpartybe distributed to the Collateral Custodian, Document Custodian and Account Bank, any Swap Breakage accrued and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTHunpaid Collateral Custodian Fees, and second, to the Administrative Agent for payment to each Managing be distributed pro rata to the Administrative Agent, on behalf of any applicable Lender, and the related LendersIndemnified Parties, in or the amount of Secured Parties, all other amounts, including, without limitation, any unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to Administrative Expenses, any prepayments made on such Payment Date amounts accrued and unpaid under the Fee Letter, any Increased Costs, and/or Taxes (if any);Taxes, indemnities and fees or expenses of counsel, but other than the principal of Advances Outstanding, then due under this Agreement; and
(xi12) ELEVENTHany remaining amounts shall be distributed to the Borrower or any nominee thereof, which amounts may be used by the Borrower to make Restricted Payments, provided, that Xxxxxxxx shall first reimburse the InvestmentCollateral Manager for any unreimbursed amounts paid by the InvestmentCollateral Manager on the Borrower’s behalf pursuant to this Agreement, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;extent not otherwise reimbursed hereunder.
Appears in 1 contract
Samples: Loan, Security and Investment Management Agreement (Investcorp US Institutional Private Credit Fund)
Settlement Procedures. On each Payment Date, the Servicer on behalf of shall instruct the Borrower shall Account Bank to pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) the Collection Account, Account to the extent of available fundsAvailable Funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During , as set forth in the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal CollectionsMonthly Report:
(i) FIRSTFirst, pro rata, (A) to the Servicer, the accrued and unpaid Servicing Fee and, to the Borrowerextent not previously retained by the Servicer, all ancillary fees, including late fees, extension fees, administrative fees or similar charges allowed by Applicable Law and (B) to the Owner Trustee, the aggregate amount of fees (including up-frontaccrued and unpaid fees, continuing or success fees) received in respect costs and expenses and any other amounts not otherwise paid which are payable to the Owner Trustee under Article VII of the Transferred LoansTrust Agreement, in an amount not to exceed $[***] per annum;
(ii) SECONDSecond, pro rata, (A) to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), the extent not paid for the payment thereof, but excludingby UACC, to the extent the Hedge Counterparty is not the same Person Backup Servicer, so long as the Administrative AgentBackup Servicer has not been appointed to serve as successor to the Servicer hereunder, the accrued and unpaid Backup Servicing Fee to the Backup Servicer, together with its expenses, which expenses, except as otherwise provided in Section 7.10(b), shall not exceed $[***] per annum, together with any Swap Breakage Transition Expenses not paid for by the predecessor Servicer pursuant to Section 7.15(e) and Indemnity Amounts(B) to the Account Bank, an amount equal to any accrued and unpaid Account Bank Fee, together with its expenses;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTHThird, to the extent not paid for by the ServicerUACC, to the Backup Servicer Custodian, the accrued and any Successor Servicerunpaid Custodian Fee;
(iv) Fourth, as applicable, (A) to each Agent for the ratable payment to each Lender in an amount equal to any accrued and unpaid Backup Servicing Fee andunpaid
(1) Interest on the Loans (plus the Unused Fee), if any(2) Breakage Costs relating to any Loans and (3) all other Aggregate Unpaids allocable to the Loans Outstanding (other than the principal amount of the Loans Outstanding) then due under this Agreement to the Administrative Agent, accrued and unpaid Transition Coststhe Agents, Backup Servicer Expenses and Market Servicing Fee Differentialthe Lenders, each the Affected Parties or the Indemnified Parties, for the payment thereof;
, (vB) FIFTHto the Hedge Counterparty, (1) any payments required under any Hedge Agreement and (2) any Hedge 300213599v4 Breakage Costs due but not paid and (C) to the Successor Servicer, any unpaid Transition Expenses payable pursuant to Section 7.15(e), to the extent not paid by the Servicer, pursuant to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereofclause (ii) above;
(viv) SIXTHFifth, to each Agent for the Servicerratable payment to each Lender, in an amount equal to the Monthly Principal Payment Amount or, if applicable, the Target Monthly Principal Payment Amount;
(Avi) if the Servicer is Gladstone Management Corporation or any of its AffiliatesSixth, its accrued and unpaid Servicing Fees to the end of Hedge Reserve Account, the preceding Settlement Period, up amount (if any) necessary to cause the Hedge Account Reserve Amount to be equal to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereofHedge Account Required Amount;
(vii) SEVENTHSeventh, if (A) the Facility Turbo Date or a Foreclosure Event has occurred, the remaining Available Funds to reduce the Loans Outstanding and all other Aggregate Unpaids to zero or (B) a Partial Expiration Event has occurred, the remaining funds to reduce pro rata the portion of the Loans Outstanding constituting the Lender Advances of any Non-Extending Lender, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Datezero;
(viii) EIGHTHEighth, firstprior to the occurrence of the Termination Date, to the extent of available Principal CollectionsReserve Account, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by necessary to cause the applicable Lenders in connection with any such payment (as such Breakage Costs are notified amount on deposit therein to equal the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances OutstandingReserve Account Required Amount;
(ix) NINTHNinth, to each Hedge Counterpartythe Servicer, the Owner Trustee, the Backup Servicer, the Custodian (if other than UACC), the Account Bank and any Successor Servicer, any Swap Breakage fees, expenses and Indemnity Amounts owing that Hedge Counterparty;indemnities not paid pursuant to clauses (i) through (iv) above; and
(x) TENTHTenth, any remaining amount shall be distributed to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;Borrower.
Appears in 1 contract
Samples: Warehouse Agreement (Vroom, Inc.)
Settlement Procedures. On each Payment Date, the (a) The Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”terms of this Agreement shall administer collection of the Purchased Receivables. The Seller shall provide to the Servicer (if other than the Seller) on a timely basis all information needed for such administration, including notice of the following amounts in occurrence of any Termination Day and current lists or records of and computations with respect to the following order of priority:Purchased Interest.
(ab) During The Servicer shall, on each day on which Collections of or with respect to the Revolving Period, and in each case unless otherwise specified below, applying Purchased Interest Collections first, and then Principal Collectionsare received (or deemed received) by the Seller or Servicer:
(i) FIRST, retain for payment to the BorrowerIssuer, (or at the aggregate amount of fees (including up-front, continuing or success fees) received in respect request of the Transferred Loans;
(iiAdministrator, deposit in the Administration Account) SECONDout of such Collections, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in FIRST an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, Collections allocable to the extent Yield Reserve and which have not previously been set aside or paid by to the Issuer and SECOND, if the Seller is not the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over unpaid Servicing Fee accrued through such day for the lesser of (i) Purchased Interest and which has not previously been paid to the Borrowing Base or Servicer;
(ii) the Facility Amountsubject to SECTION 1.4(f), together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any if such payment (as such Breakage Costs are notified day is not a Termination Day, pay and remit to the Borrower by Seller in part payment of the applicable Lender(s)), pro rata; provided, however, that Deferred Purchase Price allocable to the extent that (i) Unfinanced Interest portion of the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due Purchased Interest giving rise to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf such Collections a portion of such Non-Renewing Lenders only, pro rata Collections in accordance with their Advances Outstandingan amount equal to the portion of the Collections allocable to the Unfinanced Interest;
(ixiii) NINTHsubject to SECTION 1.4(f) and satisfaction of the applicable conditions set forth in Exhibit II, to each Hedge Counterpartyif such day is not a Termination Day, any Swap Breakage pay and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, remit to the Administrative Agent for payment to each Managing AgentSeller, on behalf of the related LendersIssuer, (A) in part payment of the Deferred Purchase Price allocable to the portion of the Purchased Interest giving rise to such Collections in an amount equal to the sum of (x) the portion of Collections allocable to the Servicing Fee Reserve after giving effect to the payments or allocations made under SECTION 1.4(b)(i) above and (y) the portion of the Collections allocable to the Loss Reserve and the Dilution Reserve, and (B) the balance of such Collections, to the extent allocable to the Capital of the Purchased Interest, in part payment of the purchase price of the portion of the Purchased Interest created since the last day on which Collections were paid by the Issuer (or the Servicer on its behalf) to the Seller pursuant to this SECTION 1.4(b)(iii)(B); PROVIDED, HOWEVER that if, at the time of any payment pursuant to this SECTION 1.4(b)(iii)(B), the Net Receivables Pool Balance is less than the Required Amount, (i) the Servicer shall pay and remit to the Administration Account (to be applied by the Issuer in reduction of the Capital of the Purchased Interest), first, from Collections described in clause (A) above and, second, from Collections described in clause (B) above, an amount of such Collections as would, after giving effect to such payment and reduction of Capital, result in the Net Receivables Pool Balance being greater than or equal to the Required Amount at such time and any remaining portions of such Collections shall be remitted by the Servicer to the Seller as provided under clauses (A) and (B) above, and (ii) if after giving effect to any such reduction in the Capital of the Purchased Interest under clause (x) above, the Net Receivables Pool Balance is less than the Required Amount, the Seller shall forthwith pay and remit to the Administration Account a cash payment in reduction of the Capital of the Purchased Interest in an amount equal to the amount which when applied in reduction of unpaid Breakage Costs the Capital of the Purchased Interest will result in the Net Receivables Pool Balance of the Purchased Receivables being greater than or equal to the Required Amount; and
(iv) if such day is a Termination Day, deposit to the Administration Account the aggregate of the Collections of or with respect to the Purchased Interest (after giving effect to all payments or allocations thereof under SECTION 1.4(b)(i)); PROVIDED that if the Seller is the Servicer, the portion of such Collections allocable to the Servicing Fee Reserve shall be paid to the Seller, and PROVIDED, FURTHER that if such Termination Day is prior to the Termination Date, the portion of Collections allocable to the Unfinanced Interest shall be paid to the Seller and PROVIDED, FURTHER that if amounts are held in or deposited to the Administration Account on any Termination Day and, thereafter, the conditions set forth in SECTION 2 of EXHIBIT II are satisfied or are waived by the Administrator, such amounts shall, to the extent representing Collections allocable to the Capital of the Purchased Interest and to the extent not yet applied to reduce the Capital of the Purchased Interest, be paid in accordance with the preceding PARAGRAPH (iii)(B) on the day of such subsequent satisfaction or waiver of conditions and the balance (other than Breakage Costs covered the portion of such Collections allocable to the accrued and unpaid Discount and Servicing Fees, if any) shall be released to the Seller pursuant to PARAGRAPH (iii)(A).
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator) on each Settlement Date the sum of:
(i) if such day is not a Termination Day, an amount equal to the lesser of (x) the Collections for the related Collection Period then held for the Issuer pursuant to SECTION 1.4(b)(i) and (y) the sum of (A) the accrued and unpaid Discount and Servicing Fees, if any, for such Settlement Date and (B) any outstanding Negative Carry Amount; plus
(ii) the Collections held or received by the Servicer for the Issuer pursuant to SECTIONS 1.4(f) AND SECTION 1.11. On each Settlement Date (if such day is not a Termination Day), the balance of the Collections held for the Issuer pursuant to SECTION 1.4(b)(i) shall, after giving effect to SECTION 1.4(c)(i), be paid to the Seller in clause part payment of the Deferred Purchase Price.
(viid) aboveUpon receipt of funds deposited into the Administration Account pursuant to SECTION 1.4(b) or SECTION 1.4(c) with respect to any prepayments made on the Purchased Interest, the Administrator shall cause such Payment Date Increased Costs, and/or Taxes (if any);funds to be distributed or applied as follows:
(xii) ELEVENTHon each day that is not a Termination Day, FIRST to the Issuer in payment in full of all accrued and unpaid Discount and SECOND, to the Swingline LenderServicer (payable in arrears on each Settlement Date) in payment of accrued and unpaid Servicing Fees, for if any, and THIRD, to the portion Issuer in reduction of the Obligations constituting unpaid principal then outstanding Capital; and
(ii) on each day that is a Termination Day:
(A) all Dilution Collections deposited to the Administration Account shall be set aside in a separate sub-account of the Swing Advances;Administration Account and, unless released to the Seller pursuant to SECTION 1.4(b)(iv), distributed as provided in SECTION 1.4(d)(iii); and
(B) the remainder of the Collections deposited in the Administration Account shall be distributed, FIRST to the Issuer in payment of all accrued and unpaid Discount, SECOND, if the Seller is not the Servicer, to the Servicer in payment of all accrued and unpaid Servicing Fees, THIRD, to the Issuer in reduction of the outstanding Capital, FOURTH, if the Capital and accrued Discount have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than the Seller) have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment of any other amounts owed thereto by the Seller or the Servicer (if the Servicer is the Seller) under this Agreement; and
(iii) on and after the Termination Date, all Dilution Collections on deposit in the Administration Account shall be distributed as follows:
(A) on each Settlement Date after the Termination Date and on or before the Final Collection Date an amount equal to the lesser of:
Appears in 1 contract
Samples: Receivables Purchase Agreement (Stone Container Corp)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, segregate in a separate account approved by the Administrative Agent), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Issuer or received in any Lock-Box or Lock-Box Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied, the Servicer may release to the Issuer from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Issuer in accordance with the terms of the Purchase and Sale Agreement (each such release, a “Reinvestment”). On each Payment Settlement Date, the Servicer on behalf (or, following its assumption of control of the Borrower shall pay for receipt by Lock-Box Accounts, the applicable Lender no later than 11:00 a.m. (New York City timeAdministrative Agent) to the following Personsshall, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during distribute such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts Collections in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTHfirst, to the Administrative Agent for payment distribution to each Managing AgentPurchaser (ratably, based on behalf of the amount then due and owing to such Purchaser and any related LendersCredit Parties)), in an amount equal to any all accrued and unpaid Interest, Fees and Breakage Fees due to such Purchaser and other related Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and Unused Fee 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such Payment Dateamount has not been paid to such Purchaser or Credit Party;
(viiiii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to Servicer for the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to accrued Servicing Fees payable for the excessimmediately preceding Interest Period (plus, if anyapplicable, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with Servicing Fees payable for any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that prior Interest Period to the extent that (i) the Termination Date such amount has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, been distributed to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if anyServicer);
(xiiii) ELEVENTHthird, to the Swingline Lenderas set forth in clause (x), for the portion of the Obligations constituting unpaid principal of the Swing Advances;(y) or (z) below, as applicable:
Appears in 1 contract
Settlement Procedures. (a) On each Payment Date, the Servicer on behalf shall instruct the Account Bank in writing to pay, or if an Event of Default shall have occurred and is continuing, the Borrower Administrative Agent shall pay for receipt by instruct the applicable Lender Account Bank in writing to pay, no later than 11:00 a.m. (12:00 p.m., New York City time) , in each case, based solely on the information in the related Monthly Report, to the following Persons, from (i) the Collection Account, Account (to the extent of available funds, Available Funds) and from the Reserve Account (ii) Servicer Advances, and (iii) amounts received in respect the amount of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (irelated Reserve Account Withdrawal Amount), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During priority as set forth in the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal CollectionsMonthly Report:
(i) FIRSTfirst, to the Borrowerpro rata, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;based on amounts owing:
(iiA) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereofaccrued and unpaid Servicing Fees;
(ivB) FOURTHto the Backup Servicer, the sum of (1) the accrued and unpaid Backup Servicing Fee and (2) any out-of-pocket expenses and indemnities due to the Backup Servicer (other than Transition Expenses), which in the case of subclause (B)(2) shall not in the aggregate exceed $25,000 in any calendar year;
(C) to the Backup Servicer or other Successor Servicer, any unpaid Transition Expenses (such Transition Expenses not to exceed $250,000 in the aggregate) payable pursuant to Section 7.14(d);
(D) to the Account Bank and the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Xxxxx Fargo Bank), the sum of (1) the accrued and unpaid Account Bank Fee payable to the Account Bank and (2) any out-of-pocket expenses and indemnities due to the Account Bank and the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Xxxxx Fargo Bank), which in the case of subclause (ED)(2) shall not in the aggregate exceed $25,000 in any calendar year; and
(E) to the 2021-1B SUBI Trustee, to the extent not paid by the Initial Beneficiary or the Servicer, any accrued and unpaid fees, out-of-pocket expenses and indemnities due to the Backup Servicer 2021-1B SUBI Trustee under the 2021-1B SUBI Supplement, which in the case of subclause (FE) shall not in the aggregate exceed $25,000 in any calendar year;
(ii) second, pro rata, based on amounts owing (A) to any Hedge Counterparty, any net payments due and any Successor Servicerpayable by the Borrower under the related Hedging Agreement other than Hedge Breakage Costs, as applicable, and (B) to each applicable Agent for the ratable payment to each Lender in an amount equal to any accrued and unpaid Backup Servicing Fee and(1) Senior Interest on the Loans, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s2)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;
Appears in 1 contract
Settlement Procedures. (a) On each Payment Date, the Servicer on behalf shall instruct the Paying Agent in writing to pay, or if an Event of Default shall have occurred and is continuing, the Borrower Administrative Agent shall pay for receipt by instruct the applicable Lender Paying Agent in writing to pay, no later than 11:00 a.m. (2:00 p.m., New York City time) , in each case, based solely on the information in the related Monthly Report, to the following Persons, from (i) the Collection Account, Account (to the extent of available funds, Available Funds) and from the Reserve Account (ii) Servicer Advances, and (iii) amounts received in respect the amount of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (irelated Reserve Account Withdrawal Amount), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
priority as set forth in the Monthly Report: (i) First, sequentially (a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal the accrued and unpaid Servicing Fee (and any accrued and unpaid Servicing Fee from any prior Payment Date) and then (b) any accrued and unpaid out-of-pocket expenses and indemnities (other than Transition Expenses) due to any Unreimbursed Successor Servicer Advances(such expenses and indemnities not to exceed $[***] in the aggregate in any calendar year); (ii) Second, for the payment thereof;
pro rata, based on amounts owing (ivA) FOURTH, to the extent Borrower Loan Trustee, the sum of (1) the accrued and unpaid Borrower Loan Trustee Fee and (2) any out- of-pocket expenses and indemnities due to the Borrower Loan Trustee, which in the case of subclause (A)(2) shall not paid by in the Serviceraggregate exceed $[***] in any calendar year, (B) to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any the sum of (1) the accrued and unpaid Backup Servicing Fee andand (2) any out-of-pocket expenses and indemnities (other than Transition Expenses) due to the Backup Servicer, if anywhich in the case of subclause (B)(2) shall not in the aggregate exceed $[***] in any calendar year, accrued and (C) to the Backup Servicer or other Successor Servicer, any unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;(such Transition Expenses not to exceed $[***] in the
(vb) FIFTHFor the avoidance of doubt, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer it is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent hereby agreed that (i) accrued and unpaid fees, expenses and indemnities payable to the Termination Date has Collateral Agent, the Paying Agent, the Image File Custodian, the Backup Servicer (including in its capacity as Successor Servicer), the Borrower Loan Trustee or the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Computershare) in excess of the aggregate annual maximum amount for any year (as set forth in Section 2.08(a)(ii)) and not occurred paid pursuant to Section 2.08(a)(x) shall be reimbursable in subsequent years in the same order of priority and subject to the same limitations as set forth above until paid in full, and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, caps set forth in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) aboveSection 2.08(a)(ii) with respect to any prepayments made on such Payment Date Increased Coststhe out-of-pocket expenses, and/or Taxes (if any);
(xi) ELEVENTHfees, to the Swingline Lender, for the portion losses and indemnities of the Obligations constituting unpaid principal Collateral Agent, the Paying Agent, the Backup Servicer, the Image File Custodian, the Borrower Loan Trustee and the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Computershare) shall not be applicable upon the occurrence and during the continuance of any Event of Default. In making the Swing Advances;payments required under this Section 2.08, the Paying Agent shall have no duty to make any determination, calculation or verification regarding any amounts to be paid or the recipients of such amounts, and shall be entitled to rely exclusively and conclusively on the related Monthly Report.
Appears in 1 contract
Settlement Procedures. On each Payment Date, the Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iiiii) THIRDSECOND, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iviii) FOURTHTHIRD, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(viv) FIFTHFOURTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(viv) SIXTHFIFTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(viivi) SEVENTHSIXTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest Interest, Program Fee and Unused Commitment Fee for such Payment Date;
(viiivii) EIGHTHSEVENTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ixviii) NINTHEIGHTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(xix) TENTHNINTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Date, Increased Costs, Costs and/or Taxes (if any);
(x) TENTH, to the Administrative Agent, all other amounts or Obligations then due under this Agreement to the Administrative Agent, the Lenders, the Affected Parties or Indemnified Parties, each for the payment thereof;
(xi) ELEVENTH, all remaining Interest Collections shall be distributed to the Swingline LenderBorrower;
(xii) TWELFTH, to the Servicer, in an amount equal to its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period not otherwise paid pursuant to priority FIFTH above; and
(xiii) THIRTEENTH, all remaining amounts to the Borrower.
(b) Following the Termination Date, to the extent the Collection Date has not occurred, Interest Collections and Principal Collections shall be applied as follows: To the extent of available Interest Collections:
(i) FIRST, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the portion payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(ii) SECOND, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iii) THIRD, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(v) FIFTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the Obligations constituting preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid principal Servicing Fees to the end of the Swing Advancespreceding Settlement Period for the payment thereof;
(vi) SIXTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest, Program Fee and Liquidity Commitment Fee for such Payment Date;
(vii) SEVENTH, all remaining amounts shall be applied as Principal Collections in accordance with the priority set forth below. To the extent of available Principal Collections:
(i) FIRST, to the parties listed above, any amount remaining unpaid pursuant to clauses FIRST through SIXTH under the priority of distributions of Interest Collections set forth above;
(ii) SECOND, to the Administrative Agent for ratable payment to each Managing Agent, on behalf of the related Lenders, in an amount to reduce Advances Outstanding to zero and to pay any other Obligations in full;
(iii) THIRD, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(iv) FOURTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (b) above) with respect to any prepayments made on such Payment Date, Increased Costs and/or Taxes (if any);
(v) FIFTH, to the Administrative Agent, all other amounts or Obligations then due under this Agreement to the Administrative Agent, the Lenders, the Affected Parties or Indemnified Parties, each for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period not otherwise paid pursuant to the distribution of Interest Collections above; and
(vii) SEVENTH, all remaining amounts to the Borrower.
Appears in 1 contract
Samples: Credit Agreement (Gladstone Investment Corporation\de)
Settlement Procedures. (a) On each Payment Date, so long as no Event of Default has occurred and is continuing, the Servicer on behalf of shall direct the Borrower Collateral Custodian (which direction shall pay for be deemed given upon receipt by the applicable Lender no later than 11:00 a.m. Collateral Custodian of the related Reporting Date Report) to pay pursuant to the latest Reporting Date Report (New York City timeand the Collateral Custodian shall make payment from the Interest Collection Account to the extent of Available Funds, in reliance on the information set forth in such Reporting Date Report) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(1) to the Borrower (or, at the Borrower's election and with prior written notice to the Administrative Agent, to its direct or indirect equity holders), in respect of Taxes (but excluding all Taxes imposed on net income), registration and filing fees then due and owing by the Borrower that are attributable solely to the operations of the Borrower not to exceed $50,000 in the aggregate during any calendar year;
(2) to the Collateral Custodian, the Collateral Administrator, the Document Custodian and the Securities Intermediary, pro rata, in an amount equal to any accrued and unpaid Collateral Custodian Fees;
(3) to the Hedge Counterparty, the aggregate net amount then due and payable to the Hedge Counterparty under each applicable Hedging Agreement (excluding Hedge Breakage Costs);
(4) to the Servicer (including, for avoidance of doubt, the Replacement Servicer, if applicable), first, to pay any accrued and unpaid Servicer Fees and, second, to pay all documented fees and expenses of the Servicer (including, without limitation, reasonable attorney's fees, costs and expenses) in an aggregate amount with respect to such documented fees and expenses in any rolling 12-month period not greater than the greater of (i) 0.10% of the aggregate outstanding principal balance of all Eligible Loans and (ii) $200,000; provided that so long as Monroe Capital Income Plus Corporation is the Servicer, the Servicer Fee shall be waived;
(5) to the Administrative Agent, in an amount equal to any accrued and unpaid fees, expenses and indemnities set forth in the Transaction Documents payable to it;
(6) to the Administrative Agent to be distributed (i) first, pro rata (on the basis of each Lender's Pro Rata Share) to each Lender, in an amount equal to (a) During any accrued and unpaid Interest with respect to Advances made by such Lxxxxx and (b) any accrued and unpaid Non-Usage Fee and (ii) second, pro rata (based on amounts owing to such Lender) to each applicable Lender, any accrued and unpaid Breakage Costs owing to such Lender;
(7) to the Hedge Counterparty, any other amounts (including any Hedge Breakage Costs) incurred by the Hedge Counterparty under the applicable Hedging Agreement then due and payable, net of any amounts then due and payable to the Borrower under such applicable Hedging Agreement;
(8) to the Administrative Agent to be distributed pro rata to each Lender, in an amount equal to, if the Facility Amount has been terminated in whole pursuant to Section 2.3(c), the Advances Outstanding;
(9) to the Administrative Agent and each applicable Lender, to pay all other Administrative Expenses and Increased Costs owing to such Person;
(10) to the Administrative Agent to be distributed pro rata to each Lender, if a Borrowing Base Deficiency exists, an amount necessary to reduce the Borrowing Base Deficiency to zero, pro rata in accordance with the amount of Advances Outstanding owing to each such Lender hereunder;
(a) during the Revolving Period, and to fund the Unfunded Exposure Account in each case unless otherwise specified belowan amount necessary to cause all amounts in the Unfunded Exposure Account to equal the Required Funding Amount, applying Interest Collections firstor (b) after the Revolving Period, and then Principal Collections:to fund the Unfunded Exposure Account in an amount necessary to cause the amounts in the Unfunded Exposure Account to equal the Aggregate Unfunded Exposure Amount;
(12) to Monroe Capital Income Plus Corporation as a Permitted RIC Distribution;
(13) (i) FIRSTfirst, to the BorrowerCollateral Administrator, the aggregate amount of fees (including up-frontCollateral Custodian, continuing or success fees) received in respect of the Transferred Loans;
Document Custodian and the Securities Intermediary, and (ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excludingsecond, to the extent the Hedge Counterparty is not the same Person as Administrative Agent to be distributed to the Administrative Agent, any Swap Breakage applicable Lender, the other Indemnified Parties, or the other Secured Parties, as applicable, all other amounts then due and Indemnity Amountsowing, including, without limitation, any unpaid Administrative Expenses, any amounts accrued and unpaid under the Fee Letter, Increased Costs, Taxes, indemnities, but other than the principal of Advances Outstanding, then due under this Agreement;
(iii14) THIRDany remaining amounts shall (x) if any Default has occurred and is continuing, remain in the Interest Collection Account and (y) otherwise, be distributed to the Borrower or any nominee thereof, which amounts may be used by the Borrower to make Restricted Payments in accordance with the terms of this Agreement.
(b) On each Payment Date, so long as no Event of Default has occurred and is continuing, the Servicer shall direct (which direction shall be deemed given upon receipt by the Collateral Custodian of the related Reporting Date Report) the Collateral Custodian to pay pursuant to the latest Reporting Date Report (and the Collateral Custodian shall make payment from the Principal Collection Account to the extent of Available Funds, in reliance on the information set forth in such Reporting Date Report) to the following Persons, the following amounts in the following order of priority:
(1) to the extent not paid pursuant to Section 2.7(a), to the Borrower (or, at the Borrower's election and with prior written notice to the Administrative Agent, to its direct or indirect equity holders), in respect of Taxes (but excluding all Taxes imposed on net income), registration and filing fees then due and owing by the Borrower that are attributable solely to the operations of the Borrower not to exceed $50,000 in the aggregate during any calendar year;
(2) to the extent not paid pursuant to Section 2.7(a), to the Collateral Custodian, the Collateral Administrator, the Document Custodian and the Securities Intermediary, pro rata, in an amount equal to any accrued and unpaid Collateral Custodian Fees;
(3) to the extent not paid pursuant to Section 2.7(a), to the Hedge Counterparty, the aggregate net unpaid amount then due and payable to the Hedge Counterparty under each applicable Hedging Agreement (excluding Hedge Breakage Costs);
(4) to the extent not paid pursuant to Section 2.7(a), to the Servicer, in an amount equal to any Unreimbursed accrued and unpaid Servicer Advances, for Fees owing to the payment thereofServicer;
(iv5) FOURTH, to the extent not paid by the Servicerpursuant to Section 2.7(a), to the Backup Servicer and any Successor Servicer, as applicableAdministrative Agent, in an amount equal to any accrued and unpaid Backup Servicing Fee andfees, if any, accrued expenses and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for indemnities set forth in the payment thereofTransaction Documents owing to it;
(v6) FIFTH, to the extent not paid by the Servicerpursuant to Section 2.7(a), to the Collateral Custodian in an amount equal Administrative Agent to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expensesbe distributed (i) first, if any, for pro rata (on the payment thereof;
(vibasis of each Lender's Pro Rata Share) SIXTH, to the Servicereach Lender, in an amount equal to (Aa) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees Interest with respect to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for Advances made by such Settlement Period, for the payment thereof Lender and (Bb) otherwise, its any accrued and unpaid Servicing Fees Non-Usage Fee and (ii) second, pro rata (based on amounts owing to the end of the preceding Settlement Period for the payment thereofsuch Lender) to each applicable Lender, any accrued and unpaid Breakage Costs owing to such Lender;
(vii7) SEVENTHto the extent not paid pursuant to Section 2.7(a), to the Hedge Counterparty, any other unpaid amounts (including any Hedge Breakage Costs) incurred by the Hedge Counterparty under the applicable Hedging Agreement then due and payable, net of any amounts then due and payable to the Borrower under such applicable Hedging Agreement;
(8) to the extent not paid pursuant to Section 2.7(a), to the Administrative Agent for payment to be distributed pro rata (on the basis of each Lender's share of the Advances Outstanding) to each Managing Agent, on behalf of the related LendersLender, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Dateif the Facility Amount has been terminated in whole pursuant to Section 2.3(c), the Advances Outstanding;
(viii9) EIGHTH, firstto the extent not paid pursuant to Section 2.7(a), to the extent of available Principal Collections, and second, to the extent of available Interest CollectionsAdministrative Agent, to the Administrative Agent for payment and each applicable Lender, to pay all other Administrative Expenses and Increased Costs owing to such Person;
(10) (x) during the Revolving Period, to fund the Unfunded Exposure Account in an amount necessary to cause all amounts in the Unfunded Exposure Account to equal the Required Funding Amount, or (y) after the Revolving Period, to fund the Unfunded Exposure Account in an amount necessary to cause the amounts in the Unfunded Exposure Account to equal the Aggregate Unfunded Exposure Amount;
(11) (a) during the Revolving Period, to the extent not paid pursuant to Section 2.7(a), to the Administrative Agent to be distributed to each Managing AgentLender, on behalf of the related Lendersif a Borrowing Base Deficiency exists, an amount equal necessary to the excess, if any, of Advances Outstanding over the lesser of (i) reduce the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified Deficiency to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders onlyzero, pro rata in accordance with their the amount of Advances Outstanding owing to such Lender hereunder and (b) after the end of the Revolving Period, to the Lenders to pay the Advances Outstanding, pro rata in accordance with the amount of Advances Outstanding owing to such Lender hereunder;
(ix12) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge CounterpartyMonroe Capital Income Plus Corporation as a Permitted RIC Distribution;
(x13) TENTHto the extent not paid pursuant to Section 2.7(a), (i) first to the Collateral Administrator, the Collateral Custodian, the Document Custodian and the Securities Intermediary, and (ii) second, to the Administrative Agent for payment to each Managing be distributed to the Administrative Agent, on behalf of any applicable Lender, the related Lendersother Indemnified Parties, in or the amount of other Secured Parties, all other amounts, including, without limitation, any unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to Administrative Expenses, any prepayments made on such Payment Date amounts accrued and unpaid under the Fee Letter, any Increased Costs, and/or Taxes (if any);Taxes, indemnities and fees or expenses of counsel, but other than the principal of Advances Outstanding, then due under this Agreement; and
(xi14) ELEVENTHany remaining amounts shall (x) if any Default has occurred and is continuing, remain in the Principal Collection Account and (y) otherwise, be distributed to the Swingline LenderBorrower or any nominee thereof, for which amounts may be used by the portion Borrower to make Restricted Payments in accordance with the terms of the Obligations constituting unpaid principal of the Swing Advances;this Agreement.
Appears in 1 contract
Samples: Loan, Security and Servicing Agreement (Monroe Capital Income Plus Corp)
Settlement Procedures. On each Payment Date, the Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Commitment Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, [Reserved];
(xii) TWELFTH, to the Swingline LenderAdministrative Agent, all other amounts or Obligations then due under this Agreement or the other Transaction Documents (other than the Performance Guaranty) to the Administrative Agent, the Lenders, the Affected Parties or Indemnified Parties, each for the payment thereof;
(xiii) THIRTEENTH, to the Servicer, in an amount equal to its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period not otherwise paid pursuant to priority SIXTH above; and
(xiv) FOURTEENTH, all remaining amounts to the Borrower.
(b) During the Amortization Period, to the extent of available Interest Collections:
(i) FIRST, unless an Early Termination Event shall have occurred and be continuing, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the portion payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the Obligations constituting preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid principal Servicing Fees to the end of the Swing Advancespreceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest, Commitment Fee and Revolver Loan Funding Fee for such Payment Date;
(viii) EIGHTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata;
(ix) NINTH, all remaining amounts shall be distributed to the Borrower, provided, however, that if an Early Termination Event has occurred and is continuing, all remaining amounts shall be applied as Principal Collections in accordance with clause (c) below.
(c) During the Amortization Period, to the extent of available Principal Collections:
(i) FIRST, to the parties listed above, any amount remaining unpaid pursuant to clauses FIRST through EIGHTH under clause (b) above, in accordance with the priority set forth thereunder;
(ii) SECOND, following the occurrence of the Termination Date, to the Administrative Agent for ratable payment to each Managing Agent, on behalf of the related Lenders, in an amount to reduce Advances Outstanding to zero and to pay any other Obligations in full;
(iii) THIRD, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(iv) FOURTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (b) above) with respect to any prepayments made on such Payment Date, Increased Costs and/or Taxes (if any);
(v) FIFTH, [Reserved];
(vi) SIXTH, to the Administrative Agent, all other amounts or Obligations then due under this Agreement or the other Transaction Documents (other than the Performance Guaranty) to the Administrative Agent, the Lenders, the Affected Parties or Indemnified Parties, each for the payment thereof;
(vii) SEVENTH, to the Servicer, if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period not otherwise paid pursuant to clause SIXTH of subsection (b) above; and
(viii) EIGHTH, all remaining amounts to the Borrower.
Appears in 1 contract
Settlement Procedures. On each Payment Date, the Servicer on behalf of the Borrower shall pay or, in the case of amounts on deposit in the Collection Account, direct the Collateral Custodian to pay, for receipt by the applicable Lender Person no later than 11:00 10:00 a.m. (New York City time) to the following Persons, from (i) the Collection Account, to the extent of available funds, and (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period Advances (the sum of such amounts described in clauses (i), ) and (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borroweron a parity basis, the aggregate amount of fees (including up-front, continuing or success feesA) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts, and (B) to the Administrative Agent, in an amount equal to the accrued and unpaid Administrative Agent Fee payable on such Payment Date;
(iiiii) THIRDSECOND, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iviii) FOURTHTHIRD, on a parity basis, (A) to the Servicer, in an amount equal to its accrued and unpaid Senior Servicing Fees to the end of the preceding Collection Period for the payment thereof, (B) to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee DifferentialSuccessor Servicer Expenses, each for the payment thereof;
, (vC) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
thereof and (viD) SIXTHto the extent not paid by the Servicer, to the Servicer, Securities Intermediary in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees amounts then due and payable to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereofSecurities Intermediary;
(viiiv) SEVENTHFOURTH, to the Administrative Agent for payment to each Managing AgentLender or Liquidity Provider, on behalf of the related Lendersas applicable, in an amount equal to any accrued and unpaid Interest and Unused Fee Facility Fees for such Payment Date;
(viiiv) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest CollectionsFIFTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related LendersLender, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ixvi) NINTHSIXTH, following the occurrence of the Termination Date, to the Administrative Agent (A) first, for ratable payment to each Lender, in an amount to reduce Advances Outstanding to zero, and then (B) all other Obligations payable under this Agreement to the Administrative Agent, the Lenders, the Affected Parties or Indemnified Parties, each for the payment thereof in full;
(vii) SEVENTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty.
(viii) EIGHTH, to the Administrative Agent, all other amounts then due under this Agreement to the Administrative Agent, the Lenders, the Affected Parties or Indemnified Parties, each for the payment thereof;
(ix) NINTH, to the Servicer, in an amount equal to its accrued and unpaid Subordinate Servicing Fees to the end of the preceding Collection Period; and
(x) TENTH, the remainder thereof to the Administrative Agent for payment Borrower; provided that on any Payment Date prior to each Managing Agentthe Effective Date, on behalf of the related Lenders, any remaining amounts in the amount of unpaid Breakage Costs (other than Breakage Costs covered Collection Account representing the Prefunding Deposit or earnings thereon shall be retained therein for application in clause (vii) above) accordance with respect to any prepayments made this Section 2.8 on such the next following Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;Date.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Prospect Capital Corp)
Settlement Procedures. On each Payment Date, the Servicer on behalf (a) Collection of the Borrower Pool Receivables shall pay for receipt be administered by the applicable Lender no later than 11:00 a.m. (New York City time) to the following PersonsServicers, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”terms of Article VI of this Agreement. The Seller shall provide to the Servicers (if other than the Seller) on a timely basis all information needed for such administration, including notice of the following amounts occurrence of any Liquidation Day and current computations of each Receivable Interest.
(b) The Parent Servicer shall allocate Collections on deposit in the Deposit Accounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, with respect to the Borrowereach Receivable Interest, the aggregate amount of fees Parent Servicer shall hold in trust and segregate (including up-frontby retention in the relevant Deposit Account) for the Investors that hold such Receivable Interest, continuing or success fees) received in respect out of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect percentage of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid such Collections represented by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related LendersReceivable Interest, an amount equal to the excessYield, Servicer Fee and the BCI Subservicer Fee accrued through the date of allocation for such Receivable Interest and not previously set aside;
(ii) with respect to each Receivable Interest, if no Liquidation Day for such Receivable Interest has occurred and is then continuing, the Parent Servicer shall apply the percentage of such Collections represented by such Receivable Interest (w) to reinvest with the Seller on behalf of the Investors that hold such Receivable Interest by recomputation of such Receivable Interest pursuant to Section 2.03, (x) after accounting for such reinvestment, as may be required to prevent the aggregate Receivable Interest from exceeding the Maximum Purchaser Interest, to reduce the outstanding Capital of such Receivable Interest, (y) in any combination of the allocations set forth in clauses (w) and (x), or (z) to further reduce the outstanding Capital of such Receivable Interest (after giving effect to clauses (w), (x) and (y));
(iii) if a Liquidation Day for any one or more Receivable Interests has occurred and is continuing, apply to the outstanding Capital of each such Receivable Interest and to any other amounts payable by the Seller hereunder (x) if such day is a Liquidation Day for less than all of the Receivable Interests, the percentage of such Collections represented by such Receivable Interests, and (y) if such day is a Liquidation Day for all of the Receivable Interests, all of the remaining Collections (but not in excess of the Capital of such Receivable Interests and any other amounts payable by the Seller hereunder); and
(iv) during such times as amounts are permitted to be reinvested in accordance with the foregoing subsection (ii) and Section 2.04(c), release to the Seller for its own account any Collections remaining after application of subsection (i) and (ii) above and the distribution of such amounts pursuant to Section 2.04(c). The Parent Servicer shall be responsible for the application of all Collections received in any Deposit Account in accordance with the foregoing subsections (i) through (iv) on a Dollar Equivalent basis but may accomplish such application itself or jointly with one or more of the other Servicers.
(c) The Parent Servicer shall deposit into the Operating Agent’s Account, on the Settlement Date for each Receivable Interest, Collections held for the Investors that relate to such Receivable Interest pursuant to Section 2.04(b)(i) in the amount of accrued Yield, Servicer Fee and BCI Subservicer Fee through the most recent completed Fixed Period ending on or prior to such Settlement Date. The Parent Servicer shall make withdrawals from the Deposit Accounts pursuant to the allocations set forth in Sections 2.04(b)(ii), (iii) or (iv) on each Settlement Date and otherwise at its discretion but no less frequently then weekly and shall deposit into the Operating Agent’s Account on the date of such withdrawal all amounts so withdrawn and not either applied to reinvestment in the Receivables or released to the Seller to the extent permitted by Section 2.04(b)(iv). No withdrawal from the Deposit Accounts for reinvestment in Receivables and no release pursuant to Section 2.04(b)(iv) may occur if after giving effect to such reinvestment or release the sum of the Receivable Interests, each expressed as a percentage, would be greater than the Maximum Purchaser Interest or an Event of Termination would be continuing. The Parent Servicer shall deposit any amounts paid pursuant to Section 2.0l(d) into the Operating Agent’s Account.
(d) Upon receipt of funds deposited into the Operating Agent’s Account, the Operating Agent shall distribute them as follows:
(i) if the date of distribution is a Settlement Date, first, to the Investors in payment in full of all accrued Yield, second to BCI in payment in full of all accrued BCI Subservicer Fee, third to the Parent Servicer in payment in full of all accrued Servicer Fee, fourth to such Investors in reduction to zero of all Capital, and fifth to such Investors or the Operating Agent in payment of any other amounts owed by the Seller hereunder; and
(ii) if the date of distribution is not a Settlement Date, first, to the Investors in payment in full of such portion, if any, of Advances Outstanding over accrued Yield as the lesser Operating Agent in its discretion shall deem, second to such Investors in reduction to zero of all Capital, and third to such Investors or the Operating Agent in payment of any other amounts (including accrued and unpaid Yield) owed by the Seller hereunder. After the Capital, Yield and BCI Subservicer Fee with respect to a Receivable Interest, and any other amounts payable by the Seller to the Investors or the Operating Agent hereunder, have been paid in full and any contingent obligations of the Operating Agent under any Deposit Account Agreement have been released, all additional Collections with respect to such Receivable Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 2.04:
(i) if on any day the Borrowing Base Outstanding Balance of any Pool Receivable becomes (in whole or in part) a Diluted Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such Diluted Receivable;
(ii) if on any day any of the representations or warranties contained in Section 4.0l(h) is no longer true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in subsection (i) or (ii) of this Section 2.04(e), or as otherwise required by applicable law or the Facility Amountrelevant Contract, together all Collections received from an Obligor of any Receivables shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Operating Agent or the Investors shall be required for any reason to pay over to an Obligor any amount of Breakage Costs incurred received on its behalf hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the applicable Lenders in connection with any Seller and, accordingly, the Operating Agent or the Investors, as the case may be, shall have a claim against the Seller for such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s))amount, pro rata; provided, however, that payable when and to the extent that (i) the any distribution from or on behalf of such Obligor is made in respect thereof; provided, that, so long as an Event of Termination Date has not occurred and (ii) Advances Outstanding exceed is not continuing, the Facility Amount due Seller shall have no obligation to one make any payment in respect of deemed Collections so long as the sum of the Receivable Interests, each expressed as a percentage, shall continue to be less than or more Lenders becoming Non-Renewing Lenders, equal to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;the Maximum Purchaser Interest.
(ixf) NINTH, All amounts payable by the Seller or any Servicer under this Agreement to each Hedge Counterparty, any Swap Breakage the Operating Agent for its own account or for the account of the Investors shall be paid in Dollars. The purchase price for Receivable Interests and Indemnity Amounts owing that Hedge Counterparty;all other amounts payable by the Investors under this Agreement shall be payable in Dollars.
(xg) TENTHWhile this Agreement is in effect, to the Administrative Agent for payment to each Managing Agent, on behalf settlement procedures set forth in Section 2.04(c) shall prevail over the first sentence of Section 2.03 of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;Originator Purchase Agreement.
Appears in 1 contract
Samples: Receivables Purchase Agreement (BRP Japan Co. Ltd.)
Settlement Procedures. On each Payment Date, the Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest Interest, Program Fee and Unused Liquidity Commitment Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Committed Lenders, to each Managing Agent on behalf of such Non-Renewing Committed Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Date, Increased Costs, Costs and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline LenderAdministrative Agent, all other amounts or Obligations then due under this Agreement to the Administrative Agent, the Lenders, the Affected Parties or Indemnified Parties, each for the payment thereof;
(xii) TWELFTH, to the Servicer, in an amount equal to its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period not otherwise paid pursuant to priority SIXTH above; and
(xiii) THIRTEENTH, all remaining amounts to the Borrower.
(b) During the Amortization Period, to the extent of available Interest Collections:
(i) FIRST, unless an Early Termination Event shall have occurred and be continuing, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the portion payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the Obligations constituting preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid principal Servicing Fees to the end of the Swing Advancespreceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest, Program Fee and Liquidity Commitment Fee for such Payment Date;
(viii) EIGHTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata;
(ix) NINTH, all remaining amounts shall be distributed to the Borrower, provided, however, that if an Early Termination Event has occurred and is continuing, all remaining amounts shall be applied as Principal Collections in accordance with clause (c) below.
(c) During the Amortization Period, to the extent of available Principal Collections:
(i) FIRST, to the parties listed above, any amount remaining unpaid pursuant to clauses FIRST through EIGHTH under clause (b) above, in accordance with the priority set forth thereunder;
(ii) SECOND, following the occurrence of the Termination Date, to the Administrative Agent for ratable payment to each Managing Agent, on behalf of the related Lenders, in an amount to reduce Advances Outstanding to zero and to pay any other Obligations in full;
(iii) THIRD, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(iv) FOURTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (b) above) with respect to any prepayments made on such Payment Date, Increased Costs and/or Taxes (if any);
(v) FIFTH, to the Administrative Agent, all other amounts or Obligations then due under this Agreement to the Administrative Agent, the Lenders, the Affected Parties or Indemnified Parties, each for the payment thereof;
(vi) SIXTH, to the Servicer, if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period not otherwise paid pursuant to clause SIXTH of subsection (b) above; and
(vii) SEVENTH, all remaining amounts to the Borrower.
Appears in 1 contract
Settlement Procedures. (a) On each Payment Date, the Servicer on behalf Borrower (or at all times after the occurrence and continuance of a Termination Event, the Borrower Collateral Agent) shall pay for receipt by the applicable Lender no later than 11:00 a.m. withdraw Available Funds and any Excess Reserve Amount (New York City time) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts applied in accordance with Section 2.14 below being 2.6(c)) and investment earnings on amounts on deposit in the “Available Collections”) Collection Account from the following Collection Account and allocate and distribute such amounts to the applicable Person in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the BorrowerHedge Counterparty, the aggregate an amount equal to any Hedge Costs (exclusive of fees termination payments) and any such Hedge Costs (including up-front, continuing or success feesexclusive of termination payments) received in respect of the Transferred Loansunpaid from any prior Payment Date;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts[Reserved];
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicerso long as it has not become the Servicer hereunder, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee anddue in respect of such Payment Date, if anyany unpaid Backup Servicing Fee from any prior Payment Date, any reasonable out‑of‑pocket expenses incurred by the Backup Servicer, and any accrued and unpaid Indemnified Amounts owed by the Borrower to Xxxxx Fargo in an aggregate amount up to $17,000 per month (the “Cap”); provided, however, that in the event of an acceleration resulting from a Termination Event specified under Section 9.1(e)(i) or Section 9.1(g) hereunder, such Cap will not apply;
(iv) FOURTH, (A) to the Servicer, an amount equal to any accrued and unpaid Servicing Fees due in respect of such Payment Date and any Servicing Fees unpaid from any prior Payment Date; provided, however, if the Servicer has been replaced pursuant to Section 6.12 such amount shall not exceed the Capped Servicing Fee; and (B) to the Backup Servicer, if it has become the Successor Servicer, any Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereofExpenses;
(v) FIFTH, to the extent not paid by the ServicerLenders, to the Collateral Custodian in ratably, an amount equal to the sum of any accrued and unpaid Collateral Custodian (A) Interest and Breakage Costs, (B) Program Fee, and (C) Unused Fee due in respect of such Payment Date and Collateral Custodian Expenses, if any, for the payment thereofany such amounts unpaid from any prior Payment Date;
(vi) SIXTH, during the Revolving Period, to the ServicerLenders, in ratably (based on the outstanding principal amount of the Revolving Loans of each Lender), an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Monthly Principal Payment Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereofPayment Date;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agentany Successor Servicer, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment DateReliening Expenses;
(viii) EIGHTH, firstduring the Amortization Period, to the extent of available Principal CollectionsLenders, and second, to ratably (based on the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf outstanding principal amount of the related LendersRevolving Loans of each Lender), an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Additional Principal Payment Amount, together with until the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified Aggregate Loan Amount has been reduced to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstandingzero;
(ix) NINTH, ratably to each Hedge Counterpartythe Lenders and the Backup Servicer, an amount equal to Increased Costs, any Swap Breakage Additional Amounts and Indemnity Indemnified Amounts owing that Hedge Counterparty(provided that, with respect to the Backup Servicer, such Indemnified Amounts shall include only those Indemnified Amounts not paid pursuant to clause THIRD above) due in respect of such Payment Date and unpaid from any prior Payment Date;
(x) TENTH, to the Administrative Agent for payment Reserve Account, (A) an amount equal to each Managing Agent, any outstanding Reserve Advances and (B) the amount necessary to cause the amount on behalf of the related Lenders, deposit in the amount of unpaid Breakage Costs Reserve Account to equal the Required Reserve Account Amount (other than Breakage Costs covered in clause (vii) above) with respect after giving effect to any prepayments deposits made on such Payment Date Increased Costs, and/or Taxes in subclause (if anyA));
(xi) ELEVENTH, to the Swingline LenderBackup Servicer, for if it has become the Successor Servicer, any Servicing Fee due in respect of such Payment Date, to the extent not paid pursuant to clause FOURTH above and any such Servicing Fee unpaid from any prior Payment Date;
(xii) TWELFTH, to any other applicable Person, all remaining amounts up to all Aggregate Unpaids (during the Revolving Period, other than the Aggregate Loan Amount) until paid in full; and
(xiii) THIRTEENTH, to the Borrower any remaining amounts.
(b) One Business Day per calendar month, the date of which is to be chosen by the Borrower, the Borrower may, upon two Business Days’ prior written notice to the Deal Agent and the Lenders, withdraw from the Collection Account an amount not to exceed the amount on deposit therein on the date of such request. The Borrower shall distribute such amount ratably to the Lenders, as a payment in reduction of the portion of the Obligations constituting unpaid principal Aggregate Loan Amount funded or maintained by each such Lender. Notwithstanding anything in this Section 2.6(b) to the contrary, the Borrower shall not be required to effect any such withdrawal or make any such distribution until an officer of the Swing Advances;Servicer or a representative of the Servicer designated by an officer of the Servicer has certified to the Borrower, the Collateral Agent, the Deal Agent and the Lenders in writing (which shall include electronic transmission) that it reasonably believes that at the end of the related Collection Period the sum of Available Funds and Excess Reserve Amount, after giving effect to such payment, will be greater than the amount needed to make the payments required pursuant to Section 2.6(a)(i) through (xii).
(c) (i) If on any Payment Date the amount paid pursuant to Section 2.6(a)(v) and (vi) is insufficient to cover all amounts due thereunder on such Payment Date, the Borrower (or the Collateral Agent, as applicable) shall withdraw from the Reserve Account an amount equal to the lesser of such shortfall and the amount of funds on deposit in the Reserve Account (such withdrawal, a “Reserve Advance”) and deposit such amount to the Collection Account. The Borrower (or the Collateral Agent, as applicable) shall pay such amount ratably to the Lenders.
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corp)
Settlement Procedures. On each Payment Date, the Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City Winston-Salem, North Carolina time) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Commitment Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;
Appears in 1 contract
Samples: Credit Agreement (Gladstone Investment Corporation\de)
Settlement Procedures. On each Payment Date, the Servicer on behalf of the Borrower shall pay pay, for receipt by the applicable Lender no later than 11:00 a.m. 1:00 p.m. (New York, New York City time) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;
Appears in 1 contract
Samples: Fifth Amended and Restated Credit Agreement (Gladstone Investment Corporation\de)
Settlement Procedures. On each Payment Date, the Servicer Manager on behalf of the Borrower shall pay for receipt (and if the Manager fails to do so the Administrative Agent may) direct the Custodian in writing to transfer Collections held by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) Account Bank in the Collection AccountAccount which were received in the immediately prior Settlement Period (and, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described set forth in clauses (i), (iia) and (iiib) below, amounts on deposit in the Reserve Account), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) Monthly Report, to the following Persons in the following amounts in the following order of and priority:
(a) During the Revolving Period, and and, in each case unless otherwise specified below, applying Interest Collections (and, solely to the extent of any shortfall in clause (v) below, any amounts on deposit in the Reserve Account), first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECONDpro rata, to each Hedge Counterparty, any amounts amounts, excluding any Hedge Breakage Costs and any payments due in respect of the termination of any Hedge Transactions, owing to that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iiiii) THIRD, to the Servicer, Custodian in an amount equal to any Unreimbursed Servicer Advancesaccrued and unpaid currently due Custodian Fee, all unpaid Custodian Fees due from a prior Payment Date and all unpaid Custodian Expenses, for the payment thereof; provided, that amounts payable as Custodian Expenses pursuant to this clause (ii) shall not exceed $5,000 for any Payment Date;
(iviii) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicableBorrower, in an amount equal to any accrued and unpaid Backup Servicing Fee andOperating Expenses; provided, that amounts payable pursuant to this clause (iii) shall not exceed (x) $350,000 for any Payment Date or (y) $2,500,000 for the immediately preceding period of twelve consecutive Payment Dates (each such limitation in the foregoing clauses (x) and (y) to be increased, if anyat all, on the first Payment Date to occur after each one-year anniversary of the Closing Date by an amount equal to the lesser of (i) 5% and (ii) the percentage increase in the fair market value of all assets of the Borrower, in each case on an annually compounding basis as reported to the Administrative Agent prior to such Payment Date); provided that if a Manager Event has occurred and is continuing, no such amounts shall be payable under this clause (iii) unless consented to by the Administrative Agent;
(iv) so long as no Manager Event has occurred and is continuing, to the Manager, the accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereofManagement Fee;
(v) FIFTHpro rata, (i) to the extent not paid by Administrative Agent in payment of the Servicer, Administrative Agent Fee and (ii) to the Collateral Custodian each Lender in an amount equal to any accrued and unpaid Collateral Custodian Interest, Commitment Fee and Collateral Custodian Expenses, if anyBreakage Costs, for the payment thereof;
(vi) SIXTH, to the Servicer, Unfunded Exposure Account in an amount necessary to cause the amount on deposit in the Unfunded Exposure Account to equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereofRequired Funding Amount;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, Collections and second, to the extent of available Interest Collections, pro rata to each Lender, (A) if no Event of Default has occurred and is continuing, an amount, if necessary, in repayment of sufficient Advances Outstanding to cause the Borrowing Base Test and the Coverage Tests to be satisfied and (B) if an Event of Default has occurred and is continuing, in an amount necessary to reduce the Advances Outstanding to zero;
(viii) to pay the Advances Outstanding (to the extent not previously paid), together with any applicable Prepayment Fee, in connection with any complete refinancing or termination of this Agreement in accordance with Section 2.3(a);
(ix) to the Reserve Account, an amount, if necessary, required for the amount on deposit in the Reserve Account to equal the Reserve Account Required Amount;
(x) to the Administrative Agent for payment to each Managing Agent, on behalf the account of the related Lendersapplicable Affected Party, to be paid pro rata to such Affected Party in accordance with the amount owed to such Person under this clause (x), in an amount equal to any unpaid Increased Costs, Taxes payable under Section 2.12 and any Other Costs, for the excesspayment thereof;
(xi) to the Administrative Agent, the Lenders, the Affected Parties and the Indemnified Parties (other than the Manager, if any, the Manager is an Affiliate of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(sBorrower)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their the amount owed to such Person under this clause (xi), all other amounts (other than Advances Outstanding) then due under this Agreement, for the payment thereof;
(ixxii) NINTHpro rata to each Hedge Counterparty, any Hedge Breakage Costs due under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof;
(xiii) to the Manager (if an Affiliate of the Borrower), (x) all Indemnified Amounts and (y) reimbursement of all expenses payable to it pursuant to Section 7.7 and any other amounts then due to it under this Agreement, for the payment thereof; and
(xiv) all other remaining amounts shall be distributed to the Borrower.
(b) Following the end of the Revolving Period, to the extent of available Interest Collections and, solely to the extent of any shortfall in clause (v) below, any amounts on deposit in the Reserve Account:
(i) pro rata, to each Hedge Counterparty, any Swap amounts, excluding any Hedge Breakage and Indemnity Amounts Costs, owing to that Hedge CounterpartyCounterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof;
(ii) to the Custodian in an amount equal to any accrued and unpaid currently due Custodian Fee, all unpaid Custodian Fees due from a prior Payment Date and all unpaid Custodian Expenses, for the payment thereof; provided, that amounts payable as Custodian Expenses pursuant to this clause (ii) shall not exceed $5,000 for any Payment Date;
(iii) to the Borrower, in an amount equal to any accrued and unpaid Operating Expenses; provided, that amounts payable pursuant to this clause (iii) shall not exceed (x) $350,000 for any Payment Date or (y) $2,500,000 for the immediately preceding period of twelve consecutive Payment Dates (each such limitation in the foregoing clauses (x) and (y) to be increased, if at all, on the first Payment Date to occur after each one-year anniversary of the Closing Date by an amount equal to the lesser of (i) 5% and (ii) the percentage increase in the fair market value of all assets of the Borrower, in each case on an annually compounding basis as reported to the Administrative Agent prior to such Payment Date); provided that if a Manager Event has occurred and is continuing, no such amounts shall be payable under this clause (iii) unless consented to by the Administrative Agent;
(iv) so long as no Manager Event has occurred and is continuing, to the Manager, the accrued and unpaid Management Fee;
(v) pro rata, (i) to the Administrative Agent in payment of the Administrative Agent Fee and (ii) to each Lender in an amount equal to any accrued and unpaid Interest, Commitment Fee and Breakage Costs, for the payment thereof;
(vi) pro rata to each Lender, an amount, if necessary, in repayment of sufficient Advances Outstanding (after giving effect to all distributions under clause (c) below) to cause the Borrowing Base Test and the Coverage Tests to be satisfied;
(vii) to the Unfunded Exposure Account in an amount necessary to cause the amount on deposit in the Unfunded Exposure Account to equal the Required Funding Amount;
(viii) to the Reserve Account, an amount, if necessary, required for the amount on deposit in the Reserve Account to equal the Reserve Account Required Amount;
(ix) to the Administrative Agent, the Lenders, the Affected Parties and the Indemnified Parties (other than the Manager, if the Manager is an Affiliate of the Borrower), pro rata in accordance with the amount owed to such Person under this clause (ix), all other amounts (other than Advances Outstanding) then due under this Agreement, for the payment thereof;
(x) TENTH, to the Administrative Agent for payment pro rata to each Managing AgentHedge Counterparty, on behalf of the related Lenders, in the amount of unpaid any Hedge Breakage Costs (other than Breakage Costs covered due under its respective Hedging Agreement in clause (vii) above) with respect to of any prepayments made on such Payment Date Increased CostsHedge Transaction(s), and/or Taxes (if any)for the payment thereof;
(xi) ELEVENTHto the Manager (if an Affiliate of the Borrower), (x) all Indemnified Amounts and (y) reimbursement of all expenses payable to it pursuant to Section 7.7 and any other amounts then due to it under this Agreement, for the payment thereof; and
(xii) all remaining amounts shall be distributed to the Borrower; provided, however, that if an Event of Default has occurred and is continuing, all remaining amounts shall be applied as Principal Collections in accordance with clause (c) below.
(c) Following the end of the Revolving Period, to the Swingline Lenderextent of available Principal Collections:
(i) to the parties listed above, any amount remaining unpaid pursuant to clauses (i) through (viii) under clause (b) above, in accordance with the priority set forth thereunder;
(ii) to the Unfunded Exposure Account in an amount necessary to cause the amount on deposit in the Unfunded Exposure Account to equal the Required Funding Amount;
(iii) pro rata to the Lenders, in an amount necessary to reduce the Advances Outstanding to zero, for the portion payment thereof;
(iv) to pay any applicable Prepayment Fee, in connection with any partial commitment reduction or termination of this Agreement in accordance with Section 2.3(a);
(v) pro rata to each Hedge Counterparty, any Hedge Breakage Costs due under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof (to the extent not paid pursuant to Section 2.7(b));
(vi) to the Administrative Agent, the Lenders, the Affected Parties and the Indemnified Parties (other than the Manager, if the Manager is an Affiliate of the Obligations constituting unpaid principal Borrower), pro rata in accordance with the amount owed to such Person under this clause (vi), all other amounts (other than Advances Outstanding) then due under this Agreement, for the payment thereof (to the extent not paid pursuant to Section 2.7(b));
(vii) to the Manager (if an Affiliate of the Swing AdvancesBorrower), (x) all Indemnified Amounts and (y) reimbursement of all expenses payable to it pursuant to Section 7.7 and any other amounts then due to it under this Agreement, for the payment thereof (in each case, to the extent not paid pursuant to Section 2.7(b)); and
(viii) all remaining amounts shall be distributed to the Borrower.
(d) On the terms and conditions hereinafter set forth, at any time during the Revolving Period, the Manager may, to the extent of any Principal Collections on deposit in the Collection Account, withdraw such funds for the purpose of reinvesting in additional Loan Assets (including, if applicable, satisfying the Borrower’s obligation to deposit the Unfunded Exposure Equity Amount into the Unfunded Exposure Account on the related Purchase Date for any Delayed Funding Loan Asset), provided the following conditions are satisfied:
(i) all conditions precedent set forth in Sections 3.2 and 3.3 have been satisfied;
(ii) the Manager provides same day written notice to the Administrative Agent and the Custodian by facsimile or e-mail (to be received no later than 1:00 p.m. (New York time) on such day) of the request to withdraw Principal Collections and the amount thereof;
(iii) the notice required in clause (ii) above shall be accompanied by a Borrower Notice executed by the Borrower and at least one Responsible Officer of the Manager;
(iv) the Custodian provides to the Administrative Agent by facsimile or e-mail a statement reflecting the total amount of Principal Collections on deposit on such day (and as of the time noted on such statement) in the Collection Account; or
(v) upon written confirmation by the Administrative Agent of the satisfaction of the conditions set forth in clauses (i) through (iii) above (which shall be provided by 2:30 p.m. (New York time) on the same date, if satisfied), the Custodian may release funds from the Collection Account to the Manager in an amount not to exceed the lesser of (A) the amount requested by the Manager and (B) the amount of Principal Collections on deposit in the Collection Account on such day. The Custodian shall provide the statement required under clause (iv) above no later than 4:00 p.m. (New York time) on any Business Day it receives a request to withdraw Principal Collections from the Manager pursuant to clause (ii) above.
(e) With respect to each Delayed Funding Loan Asset acquired by the Borrower, immediately after giving effect to such acquisition or issuance, the Borrower shall deposit an amount equal to the Required Funding Amount with respect to such Delayed Funding Loan Asset into the Unfunded Exposure Account. Funds on deposit in the Unfunded Exposure Account as of any date of determination may be withdrawn by the Borrower (i) to fund draw requests of the relevant Obligors under any Delayed Funding Loan Asset or (ii) to make a deposit into the Collection Account. Any such withdrawal shall be subject to the following conditions (the “Withdrawal Conditions”):
(i) the amount withdrawn to fund such draw request shall not cause the Borrowing Base Test to fail to be satisfied; and
(ii) after giving effect to such withdrawal, the aggregate amount on deposit in the Unfunded Exposure Account is equal to or greater than the aggregate Required Funding Amount with respect to all Delaying Funding Loan Assets included in the Collateral. Any such draw request made by an Obligor, along with wiring instructions for the applicable Obligor, shall be forwarded by the Borrower or the Manager to the Custodian (with a copy to the Administrative Agent) in the form of a Borrower Notice, along with either (A) an instruction to the Custodian to withdraw the applicable amount from the Unfunded Exposure Account and a certification that the Withdrawal Conditions are satisfied or (B) an instruction to the Custodian to withdraw the applicable amount from the Collection Account, and the Custodian shall fund such draw request in accordance with such instructions from the Manager on behalf of the Borrower, and the Custodian shall instruct the Account Bank to fund such draw request in accordance with the Loan Asset Documents pertaining to such Delayed Funding Loan Asset. Any amounts on deposit in the Unfunded Exposure Account which exceed the Exposure Amount as of any date of determination shall be deposited into the Collection Account as Principal Collections. The Manager shall (and if the Manager fails to do so, the Administrative Agent may) direct the Custodian in writing to deposit in the Unfunded Exposure Account all Collections received by the Borrower in respect of any principal paid on the Delayed Funding Loan Assets included in the Collateral to the extent necessary to cause the amount on deposit in the Unfunded Exposure Account to equal the Required Funding Amount with respect to all Delayed Funding Loan Assets.
(f) For the sake of clarity, the parties hereby agree that if the funds on deposit in the Collection Account are insufficient to pay any amounts due and payable on a Payment Date or otherwise, the Borrower shall nevertheless remain responsible for, and shall pay when due, all amounts payable under this Agreement and the other Transaction Documents in accordance with the terms of this Agreement and the other Transaction Documents.
Appears in 1 contract
Samples: Credit, Security and Management Agreement (Saratoga Investment Corp.)
Settlement Procedures. (a) On each Payment Date, so long as (i) no Event of Default has occurred and is continuing and (ii) the Servicer Termination Date has not been declared or deemed to have occurred pursuant to Section 9.2(a), the Collateral Manager shall direct the Collateral Custodian to transfer, in reliance on behalf the information set forth in the applicable Payment Date Statement, collected Interest Collections held by the Securities Intermediary in the Interest Collection Account as of the Borrower shall pay end of the related Collection Period, to the extent of Available Funds, for receipt by payments of the applicable Lender no later than 11:00 a.m. (New York City time) following amounts, to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:priority (the “Interest Collections Priority”):
(a1) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s)applicable Governmental Authority, for the payment thereofof any Taxes and governmental registration, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage filing and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee andsimilar fees, if any, accrued due and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for owing by the payment thereofBorrower;
(v2) FIFTH, pro rata to the extent not paid by the Servicer, to (i) the Collateral Custodian in and Document Custodian, an amount equal to any accrued and unpaid Collateral Custodian Fee Fees and the Document Custodian Fees, respectively and (ii)(A) the Collateral Custodian Expensesand the Document Custodian, if anyan amount equal to any accrued and unpaid Administrative Expenses incurred by them, for (B) the payment thereofSecurities Intermediary, an amount equal to any amounts then due and payable to it under the Account Control Agreement and (C) the Collateral Administrator, an amount equal to any amounts then due and payable to it under the Collateral Administration Agreement; provided that the aggregate amount payable pursuant to this Section 2.7(a)(2), Section 2.7(b)(2) and Section 2.8(1) may not exceed $250,000 per annum;
(vi3) SIXTH, to the Servicerpayment pro rata of Administrative Expenses not payable pursuant to Section 2.7(a)(2) and Section 2.7(a)(4) through (5); provided that the aggregate amount payable pursuant to this Section 2.7(a)(3) and Section 2.7(b)(3) may not exceed $100,000 per annum;
(4) pro rata to the Administrative Agent and each Lender, in an amount equal to (Ai) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued indemnification payments then due and unpaid Servicing Fees payable to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof it and (Bii) otherwiseany Administrative Expenses then due and payable to it; provided that the aggregate amount payable pursuant to this Section 2.7(a)(4), its accrued Section 2.7(b)(4) and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereofSection 2.8(2) may not exceed $250,000 per annum;
(vii5) SEVENTH, to the Administrative Agent for payment Collateral Manager, an amount equal to any Collateral Manager Reimbursable Expenses then due and payable to it; provided that the aggregate amount payable pursuant to this Section 2.7(a)(5), Section 2.7(b)(5) and Section 2.8(3) may not exceed $250,000 per annum;
(6) pro rata to each Managing AgentLender, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and any accrued and unpaid Unused Fee for such Payment DateFacility Fees, in each case then due and payable to it under this Agreement;
(viii7) EIGHTHfollowing a failure of the Market Value Ratio Test to be satisfied, first(a) during the Aggregation Period, at the election of the Collateral Manager, (i) to the Principal Collection Account as Principal Collections for the purchase of additional Collateral Obligations or (ii) to repay the Outstanding Funded Loans, or (b) following the Aggregation Period, to repay the Outstanding Funded Loans, in each case, until the earlier to occur of (1) the reduction of the Outstanding Funded Loans to zero and (2) the Market Value Ratio is greater than or equal to 138.50%;
(8) if either Coverage Test is not satisfied as of the related Determination Date, pro rata to each Lender to repay Outstanding Funded Loans until the earlier to occur of (i) the reduction of the Outstanding Funded Loans to zero and (ii) the satisfaction of the applicable Coverage Test(s);
(9) (a) if, on the related Determination Date, the Interest Diversion Ratio Test is not satisfied, to the extent of available Principal Collection Account as Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excessRequired Interest Diversion Amount and (b) if, on any Determination Date on or following the Fully Ramped Target Date, any Transaction Concentration Requirement is not satisfied following any application of Interest Collections pursuant to subclause (a) of this clause (9), to the Principal Collection Account as Principal Collections, until each Transaction Concentration Requirement is satisfied;
(10) if, following the provision by Moody’s of an Initial Rating, if any, of Advances with respect to any Payment Date following the Effective Date, Moody’s has not yet confirmed such Initial Rating pursuant to Sections 2.16(b) or (c) (unless the Borrower or the Collateral Manager has provided a Passing Report to Moody’s), pro rata to each Lender to repay Outstanding over Funded Loans in an amount sufficient to satisfy the lesser of Rating Condition or otherwise complete the related Special Redemption;
(11) to the extent not paid pursuant to Section 2.7(a)(2) through (5), (i) first, in the Borrowing Base order and priority set forth in Section 2.7(a)(2) through (5), to each applicable party, an amount equal to all other unpaid Administrative Expenses then due and payable to it and (ii) second, pro rata to any other Person, all Administrative Expenses then due and payable to it relating to the Transaction Documents;
(12) if, on the related Determination Date, the WXXX Diversion Test is not satisfied, (a) during the Aggregation Period, at the election of the Collateral Manager, (i) to the Principal Collection Account as Principal Collections for the purchase of additional Collateral Obligations or (ii) to repay the Facility AmountOutstanding Funded Loans, together with or (b) following the amount Aggregation Period, to repay the Outstanding Funded Loans, in each case, until the earlier to occur of Breakage Costs incurred by (1) the applicable Lenders in connection with any such payment reduction of the Outstanding Funded Loans to zero and (as such Breakage Costs are notified 2) the WXXX Diversion Test is satisfied;
(13) if, on the related Determination Date, the AUM Diversion Test is not satisfied, (a) during the Aggregation Period, to the Borrower by Principal Collection Account as Principal Collections for the applicable Lender(s))purchase of additional Collateral Obligations, or (b) following the Aggregation Period, pro rata; providedrata to each Lender to repay Outstanding Funded Loans until the reduction of the Outstanding Funded Loans to zero;
(14) at the option of the Collateral Manager, howeveracting in its sole discretion, that all remaining amounts (i) during the Aggregation Period, to deposit into the Principal Collection Account as Principal Collections and (ii) following the Aggregation Period, to the extent that Member, free and clear of the Lien of the Collateral Custodian.
(b) On each Payment Date, so long as (i) no Event of Default has occurred and is continuing and (ii) the Termination Date has not been declared or deemed to have occurred pursuant to Section 9.2(a), the Collateral Manager shall direct the Collateral Custodian to transfer, in reliance on the information set forth in the applicable Payment Date Statement, collected Principal Collections held by the Securities Intermediary in the Principal Collection Account as of the end of the related Collection Period, to the extent of Available Funds, for payment of the following amounts, to the following Persons, in the following order of priority (the “Principal Collections Priority”):
(1) to the applicable Governmental Authority, for the payment of any Taxes and governmental registration, filing and similar fees, if any, due and owing by the Borrower;
(2) to the extent not paid pursuant to Section 2.7(a)(2), pro rata to (i) the Collateral Custodian and the Document Custodian, an amount equal to any accrued and unpaid Collateral Custodian Fees and Document Custodian Fees, respectively and (ii)(A) the Collateral Custodian and the Document Custodian, an amount equal to any accrued and unpaid Administrative Expenses incurred by them, (B) the Securities Intermediary, an amount equal to any amounts then due and payable to it under the Account Control Agreement and (C) the Collateral Administrator, an amount equal to any amounts then due and payable to it under the Collateral Administration Agreement; provided that the aggregate amount payable pursuant to this Section 2.7(b)(2), Section 2.7(a)(2) and Section 2.8(1) may not exceed $250,000 per annum;
(3) to the payment pro rata of Administrative Expenses not payable pursuant to Section 2.7(b)(2) and Section 2.7(b)(4) through (5); provided that the aggregate amount payable pursuant to this Section 2.7(b)(3) and Section 2.7(a)(3) may not exceed $100,000 per annum;
(4) to the extent not paid pursuant to Section 2.7(a)(4), pro rata to the Administrative Agent and each Lender, an amount equal to (i) any indemnification payments then due and payable to it and (ii) Advances Outstanding any Administrative Expenses then due and payable to it; provided that the aggregate amount payable pursuant to this Section 2.7(b)(4), Section 2.7(a)(4) and Section 2.8(2) may not exceed $250,000 per annum;
(5) to the Facility Amount due extent not paid pursuant to one or more Lenders becoming Non-Renewing LendersSection 2.7(a)(5), to each Managing Agent on behalf of such Non-Renewing Lenders onlythe Collateral Manager, an amount equal to any Collateral Manager Reimbursable Expenses then due and payable to it; provided that the aggregate amount payable pursuant to this Section 2.7(b)(5), Section 2.7(a)(5) and Section 2.8(3) may not exceed $250,000 per annum;
(6) to the extent not paid pursuant to Section 2.7(a)(6), pro rata to each Lender, an amount equal to any accrued and unpaid Interest and any accrued and unpaid Unused Facility Fees, in accordance with their Advances Outstandingeach case then due and payable to it under this Agreement;
(ix7) NINTHto the extent not paid pursuant to Section 2.7(a)(8), if either Coverage Test is not satisfied as of the related Determination Date, pro rata to each Hedge Counterparty, any Swap Breakage Lender to repay Outstanding Funded Loans until the earlier to occur of (i) the reduction of the Outstanding Funded Loans to zero and Indemnity Amounts owing that Hedge Counterparty(ii) the satisfaction of the applicable Coverage Test(s);
(x) TENTH8) if, to following the Administrative Agent for payment to each Managing Agentprovision by Moody’s of an Initial Rating, on behalf of the related Lendersif any, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costsfollowing the Effective Date, and/or Taxes if after the application of Interest Collections as provided in Section 2.7(a)(10) Moody’s has not yet confirmed such Initial Rating pursuant to Sections 2.16(b) or (if anyc) (unless the Borrower or the Collateral Manager has provided a Passing Report to Moody’s), pro rata to each Lender to repay Outstanding Funded Loans in an amount sufficient to satisfy the Rating Condition or otherwise complete the related Special Redemption;
(xi9) ELEVENTHduring the Aggregation Period, to the Swingline LenderPrincipal Collection Account, an amount requested by the Collateral Manager in its sole discretion for reinvestment in Additional Collateral Obligations;
(10) to the portion Lenders to repay Outstanding Funded Loans until the Outstanding Funded Loans are reduced to zero;
(11) to the extent not paid pursuant to Section 2.7(a)(11) or Section 2.7(b)(2) through (5), (i) first, in the order and priority set forth in Section 2.7(b)(2) through (5), to each applicable party, an amount equal to all other unpaid Administrative Expenses then due and payable to it and (ii) second, pro rata to any other Person, all Administrative Expenses then due and payable relating to the Transaction Documents; and
(12) all remaining amounts to the Member, all remaining amounts, free and clear of the Obligations constituting unpaid principal Lien of the Swing Advances;Collateral Custodian.
Appears in 1 contract
Samples: Revolving Loan Agreement (TP Flexible Income Fund, Inc.)
Settlement Procedures. On each Payment Date, the Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iiiii) THIRDSECOND, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iviii) FOURTHTHIRD, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(viv) FIFTHFOURTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(viv) SIXTHFIFTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(viivi) SEVENTHSIXTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest Interest, Program Fee and Unused Liquidity Commitment Fee for such Payment Date;
(viiivii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest CollectionsSEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;
Appears in 1 contract
Settlement Procedures. (a) On each Payment Date, the Servicer on behalf shall instruct the Securities Intermediary in writing to pay, or if an Event of Default shall have occurred and is continuing, the Borrower Administrative Agent shall pay for receipt by instruct the applicable Lender Securities Intermediary in writing to pay, no later than 11:00 a.m. (12:00 p.m., New York City time) , in each case, based solely on the information in the related Monthly Report, to the following Persons, from (i) the Collection Account, Account (to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (iiAvailable Funds) and from the Reserve Account (iii), minus any amounts required to be deposited to in the Revolver Loan Funding Accounts in accordance with Section 2.14 below being amount of the “Available Collections”related Reserve Account Withdrawal Amount) the following amounts in the following order of priority:
(a) During priority as set forth in the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal CollectionsMonthly Report:
(i) FIRSTfirst, to the Borrowerpro rata, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;based on amounts owing:
(iiA) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereofaccrued and unpaid Servicing Fees;
(ivB) FOURTHto the Backup Servicer, the sum of (1) the accrued and unpaid Backup Servicing Fee and (2) any out-of-pocket expenses and indemnities due to the Backup Servicer (other than Transition Expenses), which in the case of subclause (B)(2) shall not in the aggregate exceed $25,000 in any calendar year;
(C) to the Backup Servicer or other Successor Servicer, any unpaid Transition Expenses (such Transition Expenses not to exceed $250,000 in the aggregate) payable pursuant to Section 7.14(d);
(D) to the Securities Intermediary and the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Computershare), the sum of (1) the accrued and unpaid Securities Intermediary Fee payable to the Securities Intermediary and (2) any out-of-pocket expenses and indemnities due to the Securities Intermediary and the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Computershare), which in the case of subclause (D)(2) shall not in the aggregate exceed $25,000 in any calendar year;
(E) to the 2023-1A SUBI Trustee, to the extent not paid by the Initial Beneficiary or the Servicer, any accrued and unpaid fees, out-of-pocket expenses and indemnities due to the Backup Servicer 2023-1A SUBI Trustee under the 2023-1A SUBI Supplement, which in the case of this subclause (E) shall not in the aggregate exceed $25,000 in any calendar year; and
(ii) second, pro rata, based on amounts owing (A) to any Hedge Counterparty, any net payments due and any Successor Servicerpayable by the Borrower under the related Hedging Agreement other than Hedge Breakage Costs, as applicableand (B) to each applicable Agent for the ratable payment to each Lender (or to the Administrative Agent in the case of Administrative Agent fees, expenses and indemnities for its own account) in an amount equal to any accrued and unpaid Backup Servicing Fee and(1) Senior Interest on the Loans, if any(2) Unused Commitment Fee, accrued (3) Breakage Costs relating to the Loans and unpaid Transition Costs, Backup Servicer Expenses (4) all other Aggregate Unpaids allocable to the Loans Outstanding (other than the principal amount of the Loans Outstanding and Market Servicing Fee Differential, each any related Subordinate Interest) then due under this Agreement to the Administrative Agent and the applicable Agents or Lenders for the payment thereofthereof which, in the cases of sub-clauses (3) and (4) (excluding any unpaid Senior Interest payable on the Loans prior to such Payment Date) shall not exceed $50,000 per calendar year;
(iii) third, based on amounts owing (A) first, to each applicable Agent, for the ratable payment (by outstanding Principal Amount) to each Lender, an amount equal to the Monthly Principal Payment Amount and (B) second, to any Hedge Counterparty, any Senior Hedge Breakage Costs;
(iv) fourth, prior to the Revolving Period Termination Date, to the Reserve Account, the amount necessary to cause the amount on deposit therein to equal the Reserve Account Required Amount;
(v) FIFTHfifth, if the Revolving Period Termination Date has occurred, to each applicable Agent for the extent not paid by ratable payment to each Lender, any remaining Available Funds, until the ServicerLoans Outstanding are reduced to zero;
(vi) sixth, to each applicable Agent for the Collateral Custodian ratable payment to each Lender in an amount equal to any accrued and unpaid Collateral Custodian Fee Subordinate Interest Loans and Collateral Custodian Expensesany accrued and unpaid Senior Interest on the Loans, if anyBreakage Costs and other Aggregate Unpaids due to the Lenders and not paid pursuant to clause (iv) above;
(vii) seventh, to any Hedge Counterparty, any Subordinated Hedge Breakage Costs due but not paid;
(viii) eighth, all other Aggregate Unpaids (other than the principal amount of the Loans Outstanding) then due under this Agreement to the Affected Parties or the Indemnified Parties, for the payment thereof;
(viix) SIXTHninth, pro rata, based on amounts owing to the Backup Servicer, the Servicer, in an amount equal the Securities Intermediary, the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Computershare) and the 2023-1A SUBI Trustee, any fees, expenses, indemnities and Transition Expenses not previously paid pursuant to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of clause (i) the Borrowing Base or above, as applicable; and
(iix) the Facility Amounttenth, together with the any remaining amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified shall be distributed to the Borrower by Borrower.
(b) For the applicable Lender(s))avoidance of doubt, pro rata; provided, however, that to the extent it is hereby agreed that (i) accrued and unpaid fees, expenses and indemnities payable to the Termination Date has Securities Intermediary, the Servicer, the Backup Servicer (including in its capacity as Successor Servicer), the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Computershare) or the 2023-1A SUBI Trustee in excess of the aggregate annual maximum amount for any year (as set forth in Section 2.08(a)(i) and (ii)) and not occurred paid pursuant to Section 2.08(a)(xi) shall be reimbursable in subsequent years in the same order of priority and subject to the same limitations as set forth above until paid in full, and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, caps set forth in the amount of unpaid Breakage Costs Section 2.08(a)(i) and (other than Breakage Costs covered in clause (vii) aboveii) with respect to any prepayments made on such Payment Date Increased Coststhe out-of-pocket expenses, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion losses and indemnities of the Obligations constituting unpaid principal Securities Intermediary, the Backup Servicer, the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Computershare) and the 2023-1A SUBI Trustee shall not be applicable upon the occurrence and during the continuance of any Event of Default. In making the Swing Advances;payments required under this Section 2.08, the Securities Intermediary shall have no duty to make any determination, calculation or verification regarding any amounts to be paid or the recipients of such amounts, and shall be entitled to rely exclusively and conclusively on the related Monthly Report.
Appears in 1 contract
Settlement Procedures. On each Payment Date, the Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. 2:00 p.m. (New York City time) to ), the following PersonsPayingAdministrative Agent, based solely on the Monthly Report delivered for the most recent Reporting Date (upon which the PayingAdministrative Agent may conclusively rely), shall, from (i) amounts on deposit in the Collection AccountAccount (including, to the extent without limitation, amounts received in respect of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period) to the extent received on or before the last day of the related Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) ), cause to be disbursed the following amounts in the following order of priority:
(a) During the Revolving PeriodPeriod and prior to the occurrence and continuance of an Event of Default, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Available Collections:
(i) FIRST, to the BorrowerServicer in an amount equal to any Unreimbursed Servicer Advances, for the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loanspayment thereof;
(ii) SECOND, to the Servicer, in an amount equal to its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(iii) THIRD, ratably, (A) to any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Transition Costs and Market Servicing Fee Differential, each for the payment thereof, (B) to the Bank Parties, the Collection Account Bank and the Funding Account Bank in an amount equal to any accrued and unpaid (including with respect to prior Payment Dates) Bank Fees and Expenses, if any, for the payment thereof in an aggregate amount under this clause (B), excluding Bank Fees, not to exceed the Bank Expense Cap, and (C) to the Administrative Agent, in an amount equal to any accrued and unpaid Administrative Agent Fee and Administrative Expenses;
(iv) FOURTH, to each Hedge Counterparty, any amounts owing that to such Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viiivi) EIGHTHSIXTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s))Maximum Availability, pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ixvii) NINTHSEVENTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing to that Hedge Counterparty;
(xviii) TENTHEIGHTH, ratably, to any Successor Servicer, as applicable, and the Administrative Agent for payment Bank Parties, the Collection Account Bank and the Funding Account Bank in an amount equal to all other amounts then due under this Agreement or any other Transaction Document to any Successor Servicer, and the Bank Parties, the Collection Account Bank or the Funding Account Bank (including Bank Fees and Expenses), in each case to the extent not paid pursuant to clause THIRD above;
(ix) NINTH, to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, Breakage Costs and/or Taxes (if any);
(x) TENTH, to the Administrative Agent, the Lenders, the Affected Parties and Indemnified Parties, all other amounts or Obligations then due under this Agreement or the other Transaction Documents to the Administrative Agent, the Lenders, the Affected Parties or Indemnified Parties, each for the payment thereof;
(xi) ELEVENTH, to the Swingline LenderServicer, all other amounts then due under this Agreement or the other Transaction Documents to the Servicer, for the portion payment thereof; and
(xii) TWELFTHTWELFTH, all remaining amounts to the Borrower’'s FundingOperating Account.
(b) During the Amortization Period or following the occurrence and during the continuance of an Event of Default, to the extent of Available Collections:
(i) FIRST, to the Servicer in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(ii) SECOND, to the Servicer, in an amount equal to its accrued and unpaid Servicing Fees to the end of the Obligations constituting preceding Settlement Period for the payment thereof;
(iii) THIRD, ratably, (A) to any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid principal Transition Costs and Market Servicing Fee Differential, each for the payment thereof, (B) to the Bank Parties, the Collection Account Bank and the Funding Account Bank in an amount equal to any accrued and unpaid (including with respect to prior Payment Dates) Bank Fees and Expenses, if any, for the payment thereof, and (C) to the Administrative Agent, in an amount equal to any accrued and unpaid Administrative Agent Fee and Administrative Expenses;
(iv) FOURTH, to each Hedge Counterparty, any amounts owing to such Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(v) FIFTH, to each Managing Agent, on behalf of the Swing Advancesrelated Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(vi) SIXTH, ratably to each Managing Agent, on behalf of the related Lenders, in an amount to reduce Advances Outstanding to zero;
(vii) SEVENTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing to that Hedge Counterparty;
(viii) EIGHTH, to any Successor Servicer, in an amount equal to all other amounts then due under this Agreement or any other Transaction Document to any Successor Servicer to the extent not paid pursuant to clause THIRD above;
(ix) NINTH, to each Managing Agent, on behalf of the related Lenders, in the amount of Increased Costs, Breakage Costs and/or Taxes (if any);
(x) TENTH, to the Administrative Agent, the Lenders, the Affected Parties and Indemnified Parties, all other amounts or Obligations then due under this Agreement or the other Transaction Documents to the Administrative Agent, the Lenders, the Affected Parties or Indemnified Parties, each for the payment thereof;
(xi) ELEVENTH, to the Servicer, all other amounts then due under this Agreement or the other Transaction Documents to the Servicer, for the payment thereof; and
(xii) TWELFTH, all remaining amounts to the Borrower’'s FundingOperating Account.
Appears in 1 contract
Settlement Procedures. On each Payment Date, the Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below ) being the “Available Collections”) the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iiiii) THIRDSECOND, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iviii) FOURTHTHIRD, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(viv) FIFTHFOURTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(viv) SIXTHFIFTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(viivi) SEVENTHSIXTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest Interest, Program Fee and Unused Liquidity Commitment Fee for such Payment Date;
(viiivii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest CollectionsSEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;
Appears in 1 contract
Settlement Procedures. On each Payment Date, the Servicer Manager on behalf of the Borrower shall pay for receipt (and if the Manager fails to do so the Administrative Agent may) direct the Custodian in writing to transfer Collections held by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) Account Bank in the Collection AccountAccount which were received in the immediately prior Settlement Period (and, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described set forth in clauses (i), (iib) and (iiic) below, amounts on deposit in the Reserve Account), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) Monthly Report, to the following Persons in the following amounts in the following order of and priority:
(a) During the Revolving Period, and and, in each case unless otherwise specified below, applying Interest Collections (and, solely to the extent of any shortfall in clause (v) below, any amounts on deposit in the Reserve Account), first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECONDpro rata, to each Hedge Counterparty, any amounts amounts, excluding any Hedge Breakage Costs and any payments due in respect of the termination of any Hedge Transactions, owing to that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iiiii) THIRD, to the Servicer, Custodian in an amount equal to any Unreimbursed Servicer Advancesaccrued and unpaid currently due Custodian Fee, all unpaid Custodian Fees due from a prior Payment Date and all unpaid Custodian Expenses, for the payment thereof; provided, that amounts payable as Custodian Expenses pursuant to this clause (ii) shall not exceed $5,000 for any Payment Date;
(iviii) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicableBorrower, in an amount equal to any accrued and unpaid Backup Servicing Fee andOperating Expenses; provided, that amounts payable pursuant to this clause (iii) shall not exceed (x) $350,000 for any Payment Date or (y) $2,500,000 for the immediately preceding period of twelve consecutive Payment Dates (each such limitation in the foregoing clauses (x) and (y) to be increased, if anyat all, on the first Payment Date to occur after each one-year anniversary of the Closing Date by an amount equal to the lesser of (i) 5% and (ii) the percentage increase in the fair market value of all assets of the Borrower, in each case on an annually compounding basis as reported to the Administrative Agent prior to such Payment Date); provided that if a Manager Event has occurred and is continuing, no such amounts shall be payable under this clause (iii) unless consented to by the Administrative Agent;
(iv) so long as no Manager Event has occurred and is continuing, to the Manager, the accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereofManagement Fee;
(v) FIFTHpro rata, (i) to the extent not paid by Administrative Agent in payment of the Servicer, Administrative Agent Fee and (ii) to the Collateral Custodian each Lender in an amount equal to any accrued and unpaid Collateral Custodian Interest, Commitment Fee and Collateral Custodian Expenses, if anyBreakage Costs, for the payment thereof;
(vi) SIXTH, to the Servicer, Unfunded Exposure Account in an amount necessary to cause the amount on deposit in the Unfunded Exposure Account to equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereofExposure Amount;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, Collections and second, to the extent of available Interest Collections, pro rata to each Lender, (A) if no Event of Default has occurred and is continuing, an amount, if necessary, in repayment of sufficient Advances Outstanding to cause the Borrowing Base Test and the Coverage Tests to be satisfied and (B) if an Event of Default has occurred and is continuing, in an amount necessary to reduce the Advances Outstanding to zero;
(viii) to pay the Advances Outstanding (to the extent not previously paid), together with any applicable Prepayment Fee, in connection with any complete refinancing or termination of this Agreement in accordance with Section 2.3(a);
(ix) to the Reserve Account, an amount, if necessary, required for the amount on deposit in the Reserve Account to equal the Reserve Account Required Amount;
(x) to the Administrative Agent for payment to each Managing Agent, on behalf the account of the related Lendersapplicable Affected Party, to be paid pro rata to such Affected Party in accordance with the amount owed to such Person under this clause (x), in an amount equal to any unpaid Increased Costs, Taxes payable under Section 2.12 and any Other Costs, for the excesspayment thereof;
(xi) to the Administrative Agent, the Lenders, the Affected Parties and the Indemnified Parties (other than the Manager, if any, the Manager is an Affiliate of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(sBorrower)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their the amount owed to such Person under this clause (xi), all other amounts (other than Advances Outstanding) then due under this Agreement, for the payment thereof;
(ixxii) NINTHpro rata to each Hedge Counterparty, any Hedge Breakage Costs due under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof;
(xiii) to the Manager (if an Affiliate of the Borrower), (x) all Indemnified Amounts and (y) reimbursement of all expenses payable to it pursuant to Section 7.7 and any other amounts then due to it under this Agreement, for the payment thereof; and
(xiv) all other remaining amounts shall be distributed to the Borrower.
(b) Following the end of the Revolving Period, to the extent of available Interest Collections and, solely to the extent of any shortfall in clause (v) below, any amounts on deposit in the Reserve Account:
(i) pro rata, to each Hedge Counterparty, any Swap amounts, excluding any Hedge Breakage and Indemnity Amounts Costs, owing to that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof;
(ii) to the Custodian in an amount equal to any accrued and unpaid currently due Custodian Fee, all unpaid Custodian Fees due from a prior Payment Date and all unpaid Custodian Expenses, for the payment thereof; provided, that amounts payable as Custodian Expenses pursuant to this clause (ii) shall not exceed $5,000 for any Payment Date;
(iii) to the Borrower, in an amount equal to any accrued and unpaid Operating Expenses; provided, that amounts payable pursuant to this clause (iii) shall not exceed (x) $350,000 for any Payment Date or (y) $2,500,000 for the immediately preceding period of twelve consecutive Payment Dates (each such limitation in the foregoing clauses (x) and (y) to be increased, if at all, on the first Payment Date to occur after each one-year anniversary of the Closing Date by an amount equal to the lesser of (i) 5% and (ii) the percentage increase in the fair market value of all assets of the Borrower, in each case on an annually compounding basis as reported to the Administrative Agent prior to such Payment Date); provided that if a Manager Event has occurred and is continuing, no such amounts shall be payable under this clause (iii) unless consented to by the Administrative Agent;
(iv) so long as no Manager Event has occurred and is continuing, to the Manager, the accrued and unpaid Management Fee;
(v) pro rata, (i) to the Administrative Agent in payment of the Administrative Agent Fee and (ii) to each Lender in an amount equal to any accrued and unpaid Interest, Commitment Fee and Breakage Costs, for the payment thereof;
(vi) pro rata to each Lender, an amount, if necessary, in repayment of sufficient Advances Outstanding (after giving effect to all distributions under clause (c) below) to cause the Borrowing Base Test and the Coverage Tests to be satisfied;
(vii) to the Reserve Account, an amount, if necessary, required for the amount on deposit in the Reserve Account to equal the Reserve Account Required Amount;
(viii) to the Administrative Agent, the Lenders, the Affected Parties and the Indemnified Parties (other than the Manager, if the Manager is an Affiliate of the Borrower), pro rata in accordance with the amount owed to such Person under this clause (viii), all other amounts (other than Advances Outstanding) then due under this Agreement, for the payment thereof;
(ix) pro rata to each Hedge Counterparty, any Hedge Breakage Costs due under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof;
(x) TENTHto the Manager (if an Affiliate of the Borrower), (x) all Indemnified Amounts and (y) reimbursement of all expenses payable to it pursuant to Section 7.7 and any other amounts then due to it under this Agreement, for the payment thereof; and
(xi) all remaining amounts shall be distributed to the Borrower; provided, however, that if an Event of Default has occurred and is continuing, all remaining amounts shall be applied as Principal Collections in accordance with clause (c) below.
(c) Following the end of the Revolving Period, to the extent of available Principal Collections:
(i) to the parties listed above, any amount remaining unpaid pursuant to clauses (i) through (vii) under clause (b) above, in accordance with the priority set forth thereunder;
(ii) to the Unfunded Exposure Account in an amount necessary to cause the amount on deposit in the Unfunded Exposure Account to equal the Exposure Amount;
(iii) pro rata to the Lenders, in an amount necessary to reduce the Advances Outstanding to zero, for the payment thereof;
(iv) to pay any applicable Prepayment Fee, in connection with any partial commitment reduction or termination of this Agreement in accordance with Section 2.3(a);
(v) pro rata to each Hedge Counterparty, any Hedge Breakage Costs due under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof (to the extent not paid pursuant to Section 2.7(b));
(vi) to the Administrative Agent, the Lenders, the Affected Parties and the Indemnified Parties (other than the Manager, if the Manager is an Affiliate of the Borrower), pro rata in accordance with the amount owed to such Person under this clause (vi), all other amounts (other than Advances Outstanding) then due under this Agreement, for the payment thereof (to the extent not paid pursuant to Section 2.7(b));
(vii) to the Manager (if an Affiliate of the Borrower), (x) all Indemnified Amounts and (y) reimbursement of all expenses payable to it pursuant to Section 7.7 and any other amounts then due to it under this Agreement, for the payment thereof (in each case, to the extent not paid pursuant to Section 2.7(b)); and
(viii) all remaining amounts shall be distributed to the Borrower.
(d) On the terms and conditions hereinafter set forth, at any time during the Revolving Period, the Manager may, to the extent of any Principal Collections on deposit in the Collection Account, withdraw such funds for the purpose of reinvesting in additional Loan Assets (including, if applicable, satisfying the Borrower’s obligation to deposit the Unfunded Exposure Equity Amount into the Unfunded Exposure Account on the related Purchase Date for any Delayed Funding Loan Asset), provided the following conditions are satisfied:
(i) all conditions precedent set forth in Sections 3.2 and 3.3 have been satisfied;
(ii) the Manager provides same day written notice to the Administrative Agent for payment and the Custodian by facsimile or e-mail (to each Managing Agent, be received no later than 1:00 p.m. (New York time) on behalf such day) of the related Lendersrequest to withdraw Principal Collections and the amount thereof;
(iii) the notice required in clause (ii) above shall be accompanied by a Borrower Notice executed by the Borrower and at least one Responsible Officer of the Manager;
(iv) the Custodian provides to the Administrative Agent by facsimile or e-mail a statement reflecting the total amount of Principal Collections on deposit on such day (and as of the time noted on such statement) in the Collection Account; or
(v) upon written confirmation by the Administrative Agent of the satisfaction of the conditions set forth in clauses (i) through (iii) above (which shall be provided by 2:30 p.m. (New York time) on the same date, if satisfied), the Custodian may release funds from the Collection Account to the Manager in an amount not to exceed the lesser of (A) the amount requested by the Manager and (B) the amount of unpaid Breakage Costs (other than Breakage Costs covered Principal Collections on deposit in the Collection Account on such day. The Custodian shall provide the statement required under clause (viiiv) above no later than 4:00 p.m. (New York time) on any Business Day it receives a request to withdraw Principal Collections from the Manager pursuant to clause (ii) above.
(e) Funds on deposit in the Unfunded Exposure Account as of any date of determination may be withdrawn to fund draw requests of the relevant Obligors under any Delayed Funding Loan Asset; provided that, the amount withdrawn to fund such draw request shall not cause the Borrowing Base Test to fail to be satisfied. Any such draw request made by an Obligor, along with wiring instructions for the applicable Obligor, shall be forwarded by the Borrower or the Manager to the Custodian (with a copy to the Administrative Agent) in the form of a Borrower Notice, and the Custodian shall instruct the Account Bank to fund such draw request in accordance with the Loan Asset Documents pertaining to such Delayed Funding Loan Asset. Any amounts on deposit in the Unfunded Exposure Account which exceed the Exposure Amount as of any date of determination shall be deposited into the Collection Account as Principal Collections. The Manager shall (and if the Manager fails to do so, the Administrative Agent may) direct the Custodian in writing to deposit in the Unfunded Exposure Account all Collections received by the Borrower in respect of any principal paid on the Delayed Funding Loan Assets included in the Collateral to the extent necessary to cause the amount on deposit in the Unfunded Exposure Account to equal the Exposure Amount for all Delayed Funding Loan Assets.
(f) For the sake of clarity, the parties hereby agree that if the funds on deposit in the Collection Account are insufficient to pay any prepayments made amounts due and payable on such a Payment Date Increased Costsor otherwise, and/or Taxes (if any);
(xi) ELEVENTHthe Borrower shall nevertheless remain responsible for, to and shall pay when due, all amounts payable under this Agreement and the Swingline Lender, for other Transaction Documents in accordance with the portion terms of this Agreement and the Obligations constituting unpaid principal of the Swing Advances;other Transaction Documents.
Appears in 1 contract
Samples: Credit, Security and Management Agreement (GSC Investment Corp.)
Settlement Procedures. (a) On each Payment Date, the Servicer on behalf of the Borrower Collateral Agent shall pay for receipt by the applicable Lender no later than 11:00 a.m. withdraw Available Funds and any Excess Reserve Amount (New York City time) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts applied in accordance with Section 2.14 below being 2.7(c)) and investment earnings on amounts on deposit in the “Available Collections”) Collection Account from the following Collection Account and allocate and distribute such amounts to the applicable Person in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the BorrowerHedge Counterparty, the aggregate an amount equal to any Hedge Costs (exclusive of fees termination payments) and any such Hedge Costs (including up-front, continuing or success feesexclusive of termination payments) received in respect of the Transferred Loans;unpaid from any prior Payment Date.
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicerso long as it has not become the Servicer hereunder, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee anddue in respect of such Payment Date, if anyany unpaid Backup Servicing Fee from any prior Payment Date, any reasonable out-of-pocket expenses incurred by the Backup Servicer, and any accrued and unpaid Transition Costs, Indemnified Amounts owed by the Borrower to the Backup Servicer Expenses and Market Servicing Fee Differentialin an aggregate amount up to $17,000 per month (the “Cap”); provided, each for however, that in the payment thereofevent of an acceleration resulting from a Termination Event specified under Section 10.1(d)(i) or Section 10.1(f) hereunder, such Cap will not apply;
(viii) FIFTHTHIRD, (A) to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee Servicing Fees due in respect of such Payment Date and Collateral Custodian Expensesany Servicing Fees unpaid from any prior Payment Date; provided, if anyhowever, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid has been replaced pursuant to Section 6.12 such amount shall not exceed the Capped Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof Fee; and (B) otherwise, its accrued and unpaid Servicing Fees to the end of Backup Servicer, if it has become the preceding Settlement Period for the payment thereofSuccessor Servicer, any Transition Expenses;
(viiiv) SEVENTHFOURTH, to the Administrative Deal Agent for payment to each Managing Agent, on behalf the account of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excesssum of any accrued and unpaid (A) Yield and Breakage Costs, if any(B) Program Fee, and (C) Unused Fee, Increased Costs and any Additional Amounts due in respect of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with such Payment Date and any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstandingamounts unpaid from any prior Payment Date;
(ixv) NINTHFIFTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTHduring the Revolving Period, to the Administrative Deal Agent for payment to each Managing Agent, on behalf the account of the related Lenders, in an amount equal to the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on Monthly Principal Payment Amount for such Payment Date Increased Costs, and/or Taxes (if any)Date;
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corp)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which shall be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Borrower or received in any Lock-Box or Collection Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay (i) the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement or (ii) amounts owing by the Borrower to the Originators under the Subordinated Notes (each such release, a “Release”). On each Payment Settlement Date, the Servicer on behalf (or, following its assumption of control of the Borrower shall pay for receipt by Collection Accounts, the applicable Lender no later than 11:00 a.m. (New York City timeAdministrative Agent) to the following Personsshall, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during distribute such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts Collections in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRSTfirst, to the BorrowerServicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of Servicing Fees payable for any prior Interest Period to the Transferred Loansextent such amount has not been distributed to the Servicer);
(ii) SECONDsecond, to the Administrative Agent for distribution to each Hedge CounterpartyLender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts owing that Hedge Counterparty or indemnified amounts payable under its respective Hedging Agreement Sections 5.03 and 12.01 in respect of any Hedge Transaction(ssuch payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 12.01 in respect of such payments) payable for the payment thereof, but excluding, any prior Interest Period to the extent the Hedge Counterparty is such amount has not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amountsbeen distributed to such Lender or Credit Party;
(iii) THIRDthird, as set forth in clause (x) or (y) below, as applicable:
(x) prior to the occurrence of the Termination Date, to the Servicerextent that a Borrowing Base Deficit exists on such date, to the Administrative Agent for distribution: (I) first, to the Lenders (ratably, based on the aggregate outstanding Capital of each Lender at such time) for the payment of a portion of the outstanding Aggregate Capital at such time, in an aggregate amount equal to (1) the amount necessary to reduce the Borrowing Base Deficit to zero ($0) Dollars or (2) at the election of the Borrower, such greater amount in accordance with Section 2.02(d) and (II) second, to the LC Collateral Accounts, in reduction of the Aggregate Adjusted LC Participation Amount, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;amount necessary (after giving effect to clause (I) above) to reduce the Borrowing Base Deficit to zero ($0); or
(ivy) FOURTH, to on and after the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end occurrence of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTHTermination Date, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
distribution: (viiiI) EIGHTH, first, to each Lender (ratably, based on the extent aggregate outstanding Capital of available Principal Collections, each Lender at such time) for the payment in full of the aggregate outstanding Capital of such Lender at such time and (II) second, to the extent of available Interest Collections, LC Collateral Accounts (A) the amount necessary to reduce the Administrative Agent for payment Aggregate Adjusted LC Participation Amount to each Managing Agent, on behalf of the related Lenders, zero ($0) and (B) an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any LC Fee Expectation at such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstandingtime;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;
Appears in 1 contract
Samples: Receivables Financing Agreement (Ingersoll Rand Inc.)
Settlement Procedures. (a) On each Payment Date, so long as no Event of Default has occurred and is continuing, the Servicer on behalf of Investment Manager shall direct the Borrower Collateral Custodian (which direction shall pay for be deemed given upon receipt by the applicable Lender no later than 11:00 a.m. Collateral Custodian of the related Reporting Date Report) to pay pursuant to the latest Reporting Date Report (New York City timeand the Collateral Custodian shall make payment from the Interest Collection Account to the extent of Available Funds, in reliance on the information set forth in such Reporting Date Report) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a1) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian and the Securities Intermediary pro rata, in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereofFees;
(vi2) SIXTHto the Hedge Counterparty, the aggregate net amount then due and payable to the Hedge Counterparty under each applicable Hedging Agreement (excluding Hedge Breakage Costs); [Investcorp] Loan and Security Agreement
(3) to the Investment Manager (including, for avoidance of doubt, the Replacement Servicer, if applicable), first, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or pay any of its Affiliates, its accrued and unpaid Servicing Investment Management Fees and, second, to the end pay all documented fees and expenses of the preceding Settlement PeriodInvestment Manager (including, up without limitation, reasonable attorney’s fees, costs and expenses) in an aggregate amount with respect to such documented fees and expenses in any rolling 12-month period not greater than the Servicing Fee Limit Amount for such Settlement Period, for greater of (i) 0.20% of the payment thereof aggregate outstanding principal value of all Eligible Loans and (Bii) $250,000; provided that so long as CM Investment Partners LLC is Investment Manager, such fee shall be waived until such time as IM directs the Custodian otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii4) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest fees, expenses and Unused Fee for such Payment Dateindemnities set forth in the Transaction Documents;
(viii5) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to be distributed pro rata to each Managing AgentLender, on behalf of the related Lenders, in an amount equal to (a) any accrued and unpaid Interest with respect to Advances made by such Lender, (b) any accrued and unpaid Non-Usage Fee (such Non-Usage Fee to be allocated based on the excessunused Commitment of each Lender) and (c) any accrued and unpaid Breakage Costs;
(6) to the Hedge Counterparty, any other amounts (including any Hedge Breakage Costs) incurred by the Hedge Counterparty under the applicable Hedging Agreement then due and payable, net of any amounts then due and payable to the Borrower under such applicable Hedging Agreement;
(7) to the Administrative Agent to be distributed pro rata to each Lender, in an amount equal to, if anythe Facility Amount has been terminated in whole pursuant to Section 2.3(c), the Advances Outstanding;
(8) to the Administrative Agent, to be distributed to the Administrative Agent and each applicable Lender, to pay all other Administrative Expenses of Advances Outstanding over the lesser of Administrative Agent and the Lenders;
(i9) to the Administrative Agent to be distributed pro rata to each Lender, if a Borrowing Base Deficiency exists, an amount necessary to reduce the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified Deficiency to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders onlyzero, pro rata in accordance with their the amount of Advances Outstanding hereunder;
(a) during the Revolving Period, to fund the Unfunded Exposure Account in an amount necessary to cause all amounts in the Unfunded Exposure Account to equal the Aggregate Unfunded Exposure Equity Amount, or (b) after the Revolving Period, to fund the Unfunded Exposure Account in an amount necessary to cause the amounts in the Unfunded Exposure Account to equal the Aggregate Unfunded Exposure Amount; [Investcorp] Loan and Security Agreement
(11) to the Administrative Agent to be distributed to the Administrative Agent, any applicable Lender, the Collateral Custodian and the Securities Intermediary, the Indemnified Parties, or the Secured Parties, as applicable, all other amounts then due and owing, including, without limitation, any unpaid Administrative Expenses, any amounts accrued and unpaid under the Fee Letter, Increased Costs, Taxes, indemnities, but other than the principal of Advances Outstanding, then due under this Agreement; and
(12) any remaining amounts shall be distributed to the Borrower or any nominee thereof, which amounts may be used by the Borrower to make Restricted Payments.
(b) On each Payment Date, so long as no Event of Default has occurred and is continuing, the Investment Manager shall direct (which direction shall be deemed given upon receipt by the Collateral Custodian of the related Reporting Date Report) the Collateral Custodian to pay pursuant to the latest Reporting Date Report (and the Collateral Custodian shall make payment from the Principal Collection Account to the extent of Available Funds, in reliance on the information set forth in such Reporting Date Report) to the following Persons, the following amounts in the following order of priority:
(1) to the extent not paid pursuant to Section 2.7(a), to the Collateral Custodian and the Securities Intermediary, pro rata, in an amount equal to any accrued and unpaid Collateral Custodian Fees;
(2) to the extent not paid pursuant to Section 2.7(a), to the Hedge Counterparty, the aggregate net unpaid amount then due and payable to the Hedge Counterparty under each applicable Hedging Agreement (excluding Hedge Breakage Costs);
(3) to the extent not paid pursuant to Section 2.7(a), to the Investment Manager, in an amount equal to any accrued and unpaid Investment Management Fees;
(4) to the extent not paid pursuant to Section 2.7(a), to the Administrative Agent, in an amount equal to any accrued and unpaid fees, expenses and indemnities set forth in the Transaction Documents;
(5) to the extent not paid pursuant to Section 2.7(a), to the Administrative Agent to be distributed pro rata to each Lender, in an amount equal to (a) any accrued and unpaid Interest with respect to Advances made by such Xxxxxx, (b) any accrued and unpaid Non-Usage Fee (such Non-Usage Fee to be allocated based on the unused Commitment of each Lender) and (c) any accrued and unpaid Breakage Costs;
(6) to the extent not paid pursuant to Section 2.7(a), to the Hedge Counterparty, any other unpaid amounts (including any Hedge Breakage Costs) incurred by the Hedge Counterparty under the applicable Hedging Agreement then due and payable, net of any amounts then due and payable to the Borrower under such applicable Hedging Agreement; [Investcorp] Loan and Security Agreement
(7) to the extent not paid pursuant to Section 2.7(a), to the Administrative Agent to be distributed pro rata to each Lender, in an amount equal to if the Facility Amount has been terminated in whole pursuant to Section 2.3(c), the Advances Outstanding;
(ix) NINTH, 8) to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTHthe extent not paid pursuant to Section 2.7(a), to the Administrative Agent for payment to each Managing Agent, on behalf to be distributed to the Administrative Agent and each applicable Lender, to pay all other Administrative Expenses of the related Administrative Agent and the Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi9) ELEVENTH(x) during the Revolving Period, to fund the Swingline LenderUnfunded Exposure Account in an amount necessary to cause all amounts in the Unfunded Exposure Account to equal the Aggregate Unfunded Exposure Equity Amount, for the portion of the Obligations constituting unpaid principal of the Swing Advances;or
Appears in 1 contract
Samples: Loan, Security and Investment Management Agreement (Investcorp Credit Management BDC, Inc.)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent after the occurrence and during the continuance of an Event of Default or Unmatured Event of Default, segregate in a separate account approved by the Administrative Agent), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Borrower or received in any Lock-Box or Lock-Box Account; provided that, each party hereto acknowledges and agrees that so long as no Event of Default or Unmatured Event of Default has occurred and is continuing, prior to the applicable Settlement Date such Collections on Pool Receivables may be commingled by the Servicer or an Affiliate of the Servicer with funds of the Servicer and its Affiliates; provided, further, that no such commingling shall derogate from the Servicer’s obligations hereunder to distribute such Collections in the order of priority set forth below. On each Payment Settlement Date, the Servicer on behalf (or, following its assumption of control of the Borrower shall pay for receipt by Lock-Box Accounts, the applicable Lender no later than 11:00 a.m. (New York City timeAdministrative Agent) to the following Personsshall, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during distribute such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts Collections in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRSTfirst, to the BorrowerServicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of Servicing Fees payable for any prior Interest Period to the Transferred Loansextent such amount has not been distributed to the Servicer);
(ii) SECONDsecond, to each Hedge CounterpartyLender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts owing that Hedge Counterparty or indemnified amounts payable under its respective Hedging Agreement Sections 5.03 and 13.01 in respect of any Hedge Transaction(ssuch payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for the payment thereof, but excluding, any prior Interest Period to the extent the Hedge Counterparty is such amount has not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amountsbeen distributed to such Lender or Credit Party;
(iii) THIRDthird, to the Serviceras set forth in clause (x), in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(ivy) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Serviceror (z) below, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;:
Appears in 1 contract
Settlement Procedures. (a) On each Payment Business Day --------------------- prior to the Amortization Date, the Servicer shall, as provided in Section ------- 5.01(b) and based on behalf of the Borrower shall pay for receipt calculations most recently provided to the Agent by the applicable Lender no later than 11:00 ------- Servicer and such other information as the Servicer may have in its records, and unless otherwise notified by the Agent prior to 9:00 a.m. on such Business Day, allocate or make payments from the Concentration Account (New York City time) to including any cash income received by reason of investments of any retained cash in such account), in the following Persons, from order:
(i) allocate Collections received since the Collection last Business Day and held in the Concentration Account on such day, based on the Floating Allocation Percentage, either as Purchaser Collections or Transferor Collections;
(ii) out of such Purchaser Collections, allocate to, and hold in trust for the Purchasers an amount equal to the Yield for such day to the extent such amount has not been previously so allocated, and transfer such amount to the Agent's Account on the day when such amount is due and payable to the Purchasers in accordance with Section 5.04; ------------
(iii) out of such Transferor Collections, allocate to, and hold in trust for the Purchaser Parties and the Servicer, an amount equal to the Discount Amount for such day to the extent such amount has not been previously so allocated, and transfer such amount to the Agent's Account on the day when such amount is due and payable pursuant to Section 5.04 and Section 5.07(d); ------------ ---------------
(iv) so long as the conditions precedent to Reinvestment specified in Section 8.02 (the "Reinvestment Conditions" are ------------ ----------------------- satisfied on such day, apply the remainder of the Purchaser Collections to the purchase from the Transferor of ownership interests in Transferor Receivables and the other Transferred Assets (each such purchase being a "Reinvestment"); provided that ------------ -------- if such day is a Required Coverage Non-compliance Date, then the Servicer shall not reinvest, but shall, at the Transferor's option, either (A) set aside and deposit for the benefit of the Purchaser Parties in the Cash Collateral Account, for application as set forth in Section 5.07(b)(i), a portion of such Collections ------------------ which, together with other Collections previously set aside and then so held, shall not exceed the amount by which the Required Net Pool Balance exceeds the Net Pool Balance or (B) apply such portion of the Collections to reduce the Aggregate Cash Investment as provided in Section 5.07(b)(i); provided, that if, ------------------ -------- prior to the date when any Collections set aside in accordance with the foregoing clause (A) are required to be paid to the Agent's Account for the benefit of Purchasers pursuant to Section ------- 5.07(b)(i), (x) the amount of Collections so set aside exceeds ---------- the amount, if any, by which the Required Net Pool Balance exceeds the Net Pool Balance and (y) the Reinvestment Conditions are otherwise satisfied, then the Servicer shall transfer such excess to the Concentration Account and make a Reinvestment with such excess Collections;
(v) if any of the Reinvestment Conditions (other than Section ------- 8.02(e)) are not satisfied on such day, set aside and hold in ------- trust for the benefit of the Purchasers a portion of the Purchaser Collections up to the amount of the Aggregate Cash Investment plus accrued and unpaid Yield thereon until such time as such Reinvestment Conditions are satisfied, and then make a Reinvestment with such Collections; and
(vi) pay to the Transferor, by deposit in the Transferor's Account, the portion of Collections applied to Reinvestment, the Transferor Collections and, once all amounts have been allocated and/or paid as specified above, any remaining Purchaser Collections. Unless the Agent shall request it to do so in writing, the Servicer shall not be required to hold Collections that have been set aside pursuant to this Section 5.07(a) or pursuant to Section 5.09 in a separate --------------- ------------ deposit account containing only such Collections.
(b) Without limiting the manner in which Collections are to be applied or paid pursuant to Section 5.07(a)(i) through (iii), on any Required ----------------- --- Coverage Non-Compliance Date during the Reinvestment Period
(i) if either (x) a Required Coverage Non-compliance Date has occurred for 15 or more consecutive days and the sum of (A) the Net Pool Balance plus (B) the aggregate amount of funds contained in the Cash Collateral Account is less than the Required Net Pool Balance or (y) a Required Coverage Non-compliance Date has occurred for 45 or more consecutive days irrespective of the amount of funds on deposit in the Cash Collateral Account, then, in each case, any Purchaser Collections remaining after the application made pursuant to Section 5.07(a)(ii) and any funds on ------------------ deposit in the Cash Collateral Account shall (A) be promptly upon receipt paid to the Agent's Account and applied to reduce the Aggregate Cash Investment, to the extent that the Purchaser's Tranche Investment is then maintained as (x) an Alternate Base Rate Tranche or (y) a Eurodollar Tranche if any Yield Period applicable thereto ended during the period that Collections were set aside pursuant to Section 5.07(a)(iv)(A) or (z) any --------------------- Eurodollar Tranche if a Required Coverage Non-compliance Date has occurred for 45 consecutive days, or (B) if not required to be paid pursuant to the immediately preceding clause (A), be deposited in the Cash Collateral Account and transferred to the Agent's Account to reduce the Aggregate Cash Investment at the end of available fundseach Yield Period applicable to a Eurodollar Tranche, unless, at its option, the Transferor specifies an earlier date for such reduction;
(ii) Servicer AdvancesAll Transferor Collections and any remaining Purchaser Collections transferred to the Transferor's Account pursuant to Section 5.07(a)(vi) shall, on receipt -------------------
(a) First, shall be applied to pay in full the Swing Line Advances together with accrued interest thereon, and
(b) Second, shall be transferred to the Cash Collateral Account to be held by the Agent as security for the Transferor's obligations in respect of outstanding Letters of Credit and the other Obligations (other than the Aggregate Cash Investment and Yield thereon) of the Transferor under the Transaction Documents to the extent such other Obligations are reasonably estimable; and
(iii) amounts received to the extent the Transferor has other funds (other than Purchaser Collections) available to pay Swing Line Advances and accrued interest thereon and to be transferred to the Cash Collateral Account to secure the Transferor's obligations in respect of outstanding Letters of Credit and its other Obligations (other than the Aggregate Cash Investment and Yield thereon) under the Transaction Documents to the extent such other Obligations are reasonably estimable, the Transferor shall use such funds for such purposes.
(c) On any Hedge Agreement during such Settlement Period Business Day prior to the Amortization Date, the Transferor may instruct the Agent by an Officer's Certificate (which may be a standing instruction) delivered to the sum Agent by 12:00 noon to, and the Agent shall, deposit to the Transferor's Account funds, if any, held in the Cash Collateral Account, provided, that the Transferor shall have delivered to the -------- Agent at the time of such amounts described request an Officer's Certificate (in clauses substantially the form of Exhibit G hereto) stating that, after taking account of the requested --------- withdrawal, the Net Pool Balance on such day is equal to or greater than the Required Net Pool Balance and setting forth the calculations supporting such statement.
(i)d) On each Distribution Date, (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts Servicer shall distribute in accordance with Section 2.14 below being 5.04 the “Available Collections”) amount of funds on deposit in the following amounts ------------ Concentration Account on such Distribution Date or otherwise held by the Servicer in trust pursuant to the terms hereof, in the following order of priority:
(a) During , in accordance with the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal CollectionsServicer's Determination Date Certificate:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, Agent any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, payable pursuant to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;Section ------- 5.02
Appears in 1 contract
Samples: Purchase and Servicing Agreement (Ak Steel Holding Corp)
Settlement Procedures. (a) On each Payment Date, the Servicer on behalf of shall direct the Borrower shall Collateral Custodian to pay for receipt by pursuant to the applicable Lender no later than 11:00 a.m. (New York City time) Monthly Report to the following Persons, from (i) the Collection Account, to the extent of available fundsAvailable Funds, and (ii) Servicer Advances, and (iii) amounts Advances received in with respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) immediately preceding Collection Period, the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed unreimbursed Servicer Advances, for the payment thereof;
(ii) SECOND, to the Servicer, in an amount equal to any accrued and unpaid Servicing Fee, to the end of the preceding Collection Period, for the payment thereof;
(iii) THIRD, to the extent not paid for by the Originators, pro rata to the Backup Servicer and the Collateral Custodian, in an amount equal to any accrued and unpaid Backup Servicing Fee, Collateral Custodian Fee and Transition Expenses, for the payment thereof;
(iv) FOURTH, to pro rata in accordance with the extent not paid by the Serviceramounts due under subclauses (a) and (b) of this clause, to each Purchaser Agent, pro rata in accordance with the Backup Servicer and any Successor Serviceramount of Advances Outstanding hereunder for the account of the applicable Purchaser, as applicable, in (a) an amount equal to any accrued and unpaid Backup Servicing Program Fee and, if any, and Breakage Costs for the payment thereof and (b) an amount equal to any accrued and unpaid Transition CostsInterest, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereofthereof but only to the extent such accrued and unpaid Interest does not exceed the LIBOR Market Index Rate applicable for such Accrual Period;
(v) FIFTH, to each Purchaser Agent, pro rata in accordance with the extent not paid by amount of Advances Outstanding hereunder for the Serviceraccount of the applicable Purchaser, to the Collateral Custodian in an amount equal necessary to any accrued reduce the Advances Outstanding and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if anyAggregate Unpaids (other than with respect to clause (i) of the definition thereof) to zero, for the payment thereof;
(vi) SIXTH, to each Purchaser Agent, pro rata in accordance with the Servicer, in an amount equal to (A) if Pro-Rata Share for the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end account of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lendersapplicable Purchaser, in an amount equal to any accrued and unpaid Interest and Unused Fee to the extent not paid in accordance with clause FOURTH above;
(vii) SEVENTH, to the Administrative Agent, each Purchaser Agent, the applicable Purchaser, the Backup Servicer, the Collateral Custodian, the Affected Parties, the Indemnified Parties or the Secured Parties, pro rata in accordance with the amount owed to such Person under this SEVENTH clause, all other amounts, including Increased Costs but other than Advances Outstanding, then due under this Agreement, for such Payment Datethe payment thereof;
(viii) EIGHTH, firstto Wachovia Bank, to National Association, as the extent “Security Trustee,” on account of available Principal Collections, any due and second, to payable “Obligations,” each under and as defined in the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rataCS Europe Financing; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;and
(ix) NINTH, any remaining amount shall be distributed to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;the Sellers.
(xb) TENTHUpon payment in full through the SEVENTH clause set forth above, the provisions set forth in (i) Sections 2.11(b), 2.12(c), 2.15, 2.17, 5.1(k), 5.1(q), 5.4(o), 6.10(a), 6.12, 10.1(f), 10.1(k), 10.1(n) and 10.1(o) and (ii) Articles III, IV and XIV shall no longer apply to the Administrative Agent for payment to each Managing AgentSellers or the Servicer, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;as applicable.
Appears in 1 contract
Settlement Procedures. (a) On each Payment Date, the Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) the Collection Account, to the extent of available fundsfunds including interest earnings on the Collection Account, (ii) a Servicer AdvancesAdvance if made or required pursuant to Section 6.5, and (iii) amounts received in respect of any Hedge Agreement during such Settlement the applicable Collection Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below ) being the “"Available Collections”") the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(iA) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, pro rata to each Hedge Counterparty, any amounts amounts, ----- including any Hedge Breakage Costs, owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s) (other than payments in respect of Termination of any Hedging Agreement), for the payment thereof, but excluding;
(B) SECOND, to the extent Servicer, but only out of proceeds on the Hedge Counterparty is not AIG ------ Policy that were paid with respect to such AIG Loan, in an amount equal to any Unreimbursed Servicer Advances with respect to an AIG Loan, for the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amountspayment thereof;
(iiiC) THIRD, to the Servicer, but only out of Interest Collections, in ----- an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(ivD) FOURTH, to the Servicer, in an amount equal to its accrued and ------ unpaid Servicing Fees to the end of the preceding Collection Period;
(E) FIFTH, to the extent not paid for by the ServicerFNBNE, to the Backup Servicer and any Successor ----- Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee andServicer Fee, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(vF) FIFTHSIXTH, to the extent not paid for by the ServicerFNBNE, to the Collateral Custodian ----- Custodian, in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if anyFee, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(viiG) SEVENTH, to the Administrative Deal Agent for the ratable payment to each Managing Agent, on behalf of the related Lenders-------- Purchaser, in an amount equal to any accrued and unpaid Interest and Unused Fee Yield for such Payment Date;
(viiiH) EIGHTH, firstto the Deal Agent for the ratable payment to each ------ Purchaser in an amount equal (I) to the extent not paid by FNBNE, to any accrued and unpaid Commitment Fees and (II) to any accrued and unpaid Program Fees;
(I) NINTH, to the Deal Agent, in the amount of unpaid Increased Costs ----- and/or Taxes, for payment to the Purchasers in respect thereof;
(J) TENTH, so long as any AIG Loans are outstanding, to the Cash ----- Collateral Account, to the extent that the balance in such account is less than the lesser of available Principal Collections, and second(i) $500,000 or (ii) the Aggregate Outstanding Loan Balance of AIG Loans on such Payment Date;
(K) ELEVENTH, to the extent of available Interest Collectionsthat funds are available, to any remaining -------- amounts may be reinvested in Eligible Loans; provided, however, that if the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over -------- ------- aggregate Capital exceeds the lesser of (i) the Borrowing Base Capital Limit or (ii) the Facility AmountPurchase Limit, together with the an amount of Breakage Costs incurred by the applicable Lenders in connection with any equal to such payment (as such Breakage Costs are notified excess shall be paid to the Borrower by the applicable Lender(s)), pro rata; provided, however, that Deal Agent to the extent that pay down Capital outstanding;
(iL) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders onlyTWELFTH, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts amounts owing ------- that Hedge CounterpartyCounterparty under its respective Hedging Agreement in respect of the termination of such Hedging Agreement;
(xM) TENTHTHIRTEENTH, to the Administrative extent funds are available to satisfy any ---------- unpaid Indemnified Amounts, amounts required to be paid by the Seller pursuant to the indemnification provisions of Section 8.1 and any other amounts due hereunder; and
(N) FOURTEENTH, (A) if such Payment Date occurs during the Revolving ---------- Period, any remaining amount shall be distributed to the Seller, and (B) if such Payment Date occurs during the Amortization Period, to the Deal Agent for in reduction of the outstanding Capital to zero and the payment in full of the Aggregate Unpaids.
(b) On each Business Day during the Revolving Period, the Servicer may, to each Managing Agent, the extent of any Principal Collections on behalf deposit in the Collection Account as of the last day of the related LendersCollection Period, use such funds toward the Purchase of Eligible Loans pursuant to item ELEVENTH in subsection (a) above.
(c) Notwithstanding anything to the contrary contained in this Section 2.7 or any other provision in this Agreement, if on any Business Day during the Revolving Period the aggregate outstanding amount of Capital shall exceed the lesser of (i) the Purchase Limit or (ii) the Capital Limit, then the Seller shall remit to the Deal Agent, prior to any reinvestment of funds as set forth in item ELEVENTH of Section 2.7(a) and in any event no later than the close of business of the Deal Agent on the next succeeding Business Day, a payment (to be applied by the Deal Agent to outstanding Capital) in such amount as may be necessary to reduce outstanding Capital to an amount less than or equal to the lesser of (i) the Purchase Limit or (ii) the Capital Limit.
(d) On each Business Day occurring during the Amortization Period, all Principal Collections on deposit in the amount Collection Account as of unpaid Breakage Costs (other than Breakage Costs covered such Business Day shall be paid to the Deal Agent in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTHreduction, to the Swingline Lenderzero, for the portion of the Obligations constituting unpaid principal outstanding Capital and repayment in full of the Swing Advances;Aggregate Unpaids.
Appears in 1 contract
Samples: Loan Purchase and Servicing Agreement (First International Bancorp Inc)
Settlement Procedures. On each Payment Date, (a) Collection of the Pool Receivables shall be administered by the Servicer in accordance with the terms of this Agreement. The Seller shall provide to the Servicer on behalf a timely basis all information needed for such administration, including notice of the Borrower shall pay for receipt occurrence of any Run-off Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the applicable Lender no later than 11:00 a.m. (New York City time) to Seller or the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal CollectionsServicer:
(i) FIRSTset aside and hold in trust (and, to at the Borrower, the aggregate amount request of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iiisegregate) THIRDfor the Parallel Purchasers, to out of the Servicerpercentage of such Collections represented by the Purchased Interest, in first an amount equal to any Unreimbursed Servicer Advances, the Discount accrued through such day for the payment thereof;
(iv) FOURTH, to the extent each Portion of Capital and not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, previously set aside and second, to the extent of funds are available Interest Collectionstherefor, to if Owens & Minor Medical, Inc. or an Affiliate thereof Sellxx xx not the Administrative Agent for payment to each Managing Agent, on behalf of the related LendersServicer, an amount equal to the excess, if any, of Advances Outstanding over Servicing Fee determined in accordance with Section 4.6 accrued through such day for the lesser of (i) the Borrowing Base or Purchased Interest and not previously set aside; and
(ii) the Facility Amountsubject to Section 1.4(f), together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any if such payment (as such Breakage Costs are notified day is not a Run-off Day, remit to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing AgentSeller, on behalf of the related LendersParallel Purchasers according to the Percentage of each, the remainder of the Percentage of such Collections, represented by the Purchased Interest, to the extent representing a return of Capital; such Collections shall be automatically reinvested in Pool Receivables, and in the amount Related Security and Collections and other proceeds with respect thereto, and the Purchased Interest shall be automatically recomputed pursuant to Section 1.3;
(iii) if such day is a Run-off Day, (x) set aside, segregate and hold in trust for the Parallel Purchasers according to the Percentage of unpaid Breakage Costs each the entire remainder of the Percentage of the Collections represented by the Purchased Interest; provided that if amounts are set aside and held in trust on any Run-off Day and thereafter, the conditions set forth in Section 2 of Exhibit I are satisfied or are waived by the Administrative Agent, such previously set aside amounts shall, to the extent representing a return of Capital, be reinvested in accordance with the preceding paragraph (other than Breakage Costs covered ii) on the day of such subsequent satisfaction or waiver of conditions; and (y) transfer the Seller's share of the Collections represented by the Purchased Interest to the Seller; and
(iv) during such times as amounts are required to be reinvested in clause accordance with the foregoing paragraph (viiii) or the proviso to paragraph (iii), release to the Seller (subject to Section 1.4(f)) any Collections in excess of (x) such amounts and (y) the amounts that are required to be deposited pursuant to paragraph (i) above.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrative Agent), on the last day of each Settlement Period relating to a Portion of Capital (or at such other times as the Administrative Agent shall require), Collections held in the Administration Account for the Parallel Purchasers pursuant to Section 1.4(b)(i) or Section 1.4(f) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes Portion of Capital and the lesser of (if any);x) the amount of Collections then held for the Parallel Purchasers pursuant to Section 1.4(b)(iii) and (y) such Portion of Capital.
(xid) ELEVENTHUpon receipt of funds deposited into the Administration Account pursuant to Section 1.4(c), with respect to any Portion of Capital, the Administrative Agent shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Run-off Day, first to each Parallel Purchaser in payment in full of its Percentage of all accrued Discount and then to the Swingline LenderServicer (payable in arrears on each Month End Date) in payment in full of all accrued Servicing Fees so set aside with respect to such Portion of Capital; and
(ii) if such distribution occurs on a Run-off Day, for the portion first to each Parallel Purchaser in payment in full of the Obligations constituting unpaid principal its Percentage of the Swing Advances;all accrued Discount, second to each Parallel Purchaser in payment in full of its Percentage of Capital,
Appears in 1 contract
Samples: Parallel Asset Purchase Agreement (Owens & Minor Inc/Va/)
Settlement Procedures. On each Payment Date, (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on behalf a timely basis all information needed for such administration, including notice of the Borrower shall pay for receipt occurrence of any Termination Day and current computations of the Purchased Assets Coverage Percentage.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the applicable Lender no later than 11:00 a.m. (New York City time) to Seller or the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal CollectionsServicer:
(i) FIRSTset aside and hold in trust (and shall, to at the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect request of the Transferred Loans;
(iiAdministrator, segregate in a separate account approved by the Administrator) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end benefit of the preceding Settlement PeriodPurchasers, up to the Servicing Fee Limit Amount for out of such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTHCollections, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excessAggregate Discount accrued through such day for each Portion of Capital and not previously set aside, if anysecond, of Advances Outstanding over an amount equal to the lesser of (i) Fees accrued and unpaid through such day, and third, to the Borrowing Base or extent funds are available therefor, an amount equal to the Servicing Fee accrued through such day and not previously set aside,
(ii) the Facility Amountsubject to Section 1.6(f), together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any if such payment (as such Breakage Costs are notified day is not a Termination Day, remit to the Borrower by Seller the applicable Lender(s))remainder of such Collections. Such remainder shall, pro rata(x) to the extent representing a return of the Aggregate Capital, be automatically reinvested (ratably among the Purchasers according to each Purchaser’s Capital) in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto and (y) to the extent not representing a return of the Aggregate Capital, be paid to the Seller in respect of the Deferred Purchase Price for the Purchased Assets; provided, however, that if the Purchased Assets Coverage Percentage would exceed 100%, then the Servicer shall not reinvest or remit to the Seller, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Assets Coverage Percentage to 100% (determined as if such Collections set aside had been applied to reduce the Aggregate Capital at such time), which amount shall be deposited to the Administration Account (for the benefit of the Purchasers) on the next Settlement Date in accordance with Section 1.6(c); provided, further, that (x) in the case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to its Purchaser Agent of its refusal, pursuant to Section 1.12, to extend its Commitment hereunder (an “Exiting Purchaser”) then in either case (x) or (y), above, such Purchaser’s ratable share (determined according to outstanding Capital) of such remaining Collections shall not be reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below,
(iii) if such day is a Termination Day (or any day following the provision of a Declining Notice or an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of the Purchasers the entire remainder of such Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser an amount equal to such Purchaser’s ratable share (determined according to outstanding Capital) of such Collections; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice, as the case may be, until the date such Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Declining Conduit Purchaser’s or Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated)); provided, further, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of a Declining Notice or an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and the Majority Purchaser Agents (or in the case of a Declining Notice or an Exiting Notice, such Declining Notice or Exiting Notice, as the case may be, has been revoked by the related Declining Conduit Purchaser or Exiting Purchaser, respectively and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return of Aggregate Capital (or the Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably (determined according to outstanding Capital), be reinvested and/or paid to the Seller in respect of the Deferred Purchase Price for the Purchased Assets in accordance with clause (ii) above on the day of such subsequent satisfaction or waiver of conditions or revocation of Declining Notice or Exiting Notice, as the case may be, and
(iv) subject to Section 1.6(f), pay to the Seller (on behalf of the Administrator and the Purchasers) for the Seller’s own account and in payment of the Deferred Purchase Price for the Purchased Assets any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) above or the last proviso to clause (iii) above, plus (y) the amounts that are required to be set aside pursuant to clause (i) above, the provisos to clause (ii) and clause (iii) above, plus (z) all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.6(d), deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or, solely with respect to Collections held for the Purchasers pursuant to Section 1.6(f)(iii), such other date approved by the Administrator with at least five (5) Business Days prior written notice to the Administrator of such payment), Collections held for the Purchasers pursuant to Section 1.6(b)(i) or 1.6(f) plus the amount of Collections then held for the Purchasers pursuant to clauses (b)(ii) and (iii) of Section 1.6; provided, that if Peabody or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified Peabody (or such Affiliate) that the right to retain the portion of Collections set aside pursuant to Section 1.6(b)(i) that represents the Servicing Fee is revoked, Peabody (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.6(b)(i) that represents the Servicing Fee in payment in full of the accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c) above, the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Assets Coverage Percentage does not exceed 100%, first to the Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) in payment in full of all accrued Discount and Fees with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) above and has not retained such amounts pursuant to clause (c) above, to the Servicer (payable in arrears on each Settlement Date) in payment in full of the accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Assets Coverage Percentage exceeds 100%, first to the Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) in payment in full of all accrued Discount and Fees with respect to each Portion of Capital, second to the Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Assets Coverage Percentage to 100%) (determined as if such Collections had been applied to reduce the aggregate outstanding Capital), third, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants, the amount (if any) necessary to cause the amount of cash collateral held in the LC Collateral Account to equal the aggregate outstanding amount of the LC Participation Amount (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Assets Coverage Percentage to 100%) (determined as if such Collections had been applied to reduce the aggregate outstanding amount of the LC Participation Amount), fourth, to the Servicer in payment in full of all accrued Servicing Fees, fifth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Purchaser Agents (for the benefit of such Purchaser Agent and the Purchasers in their respective Purchaser Groups), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder, and sixth, after the occurrence of the Final Payout Date, all additional Collections with respect to the Purchased Assets shall be paid to the Seller for its own account in payment of the Deferred Purchase Price for such Purchased Assets.
(e) For the purposes of this Section 1.6:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section l(g) or (n) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii) above, or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator, such Purchaser Agent or such Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator, such Purchaser Agent or such Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital), the Seller may do so as follows:
(i) the Termination Date has not occurred Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex C (the “Paydown Notice”) (A) at least two Business Days’ prior to the date of such reduction for any reduction of Aggregate Capital less than or equal to $20,000,000 and (B) at least five Business Days’ prior to the date of such reduction for any reduction of Aggregate Capital greater than $20,000,000, in each case such notice shall include the amount of such reduction and the proposed date on which such reduction shall commence;
(ii) Advances Outstanding exceed on the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf proposed date of the commencement of such Non-Renewing Lenders onlyreduction and on each day thereafter, pro rata in accordance with their Advances Outstanding;the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(ixiii) NINTHthe Servicer shall hold such Collections in trust for the benefit of the Administrator (for the benefit of each Purchaser), to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agentthe Administrator by deposit into the Administration Account on the next Settlement Date immediately following the current Settlement Period or such other date approved by the Administrator and the Majority Purchaser Agents, on behalf of the related Lenders, and Capital shall be deemed reduced in the amount to be paid to the Administrator only when in fact finally so paid; provided, that the amount of unpaid Breakage Costs (other any such reduction shall be not less than Breakage Costs covered $300,000 and shall be an integral multiple of $100,000. Upon receipt by the Administrator in the Administration Account of any amount paid in reduction of the Aggregate Capital pursuant to sub-clause (viiiii) above) with respect , the Administrator shall cause such funds to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, be distributed to the Swingline Lender, Purchaser Agents (for the portion benefit of the Obligations constituting unpaid principal Purchasers in their respective Purchaser Groups) in payment of the Swing Advances;each Purchaser’s outstanding Capital.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Peabody Energy Corp)
Settlement Procedures. The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, segregate in a separate account in the name of the Borrower and approved by the Administrative Agent), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Borrower or received in any Lock-Box or Collection Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay the purchase price for Receivables purchased by the Borrower (including by payments on the Subordinated Notes) in accordance with the terms of the Receivables Purchase Agreement (each such release, a “Reinvestment”). On each Payment Settlement Date, the Servicer on behalf (or, following its assumption of control of the Borrower shall pay for receipt by Collection Accounts, the applicable Lender no later than 11:00 a.m. (New York City timeAdministrative Agent) to the following Personsshall, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during distribute such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts Collections in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
: (i) FIRSTfirst, to the BorrowerServicer for the payment of the accrued Servicing Fees payable for the immediately preceding Settlement Period (plus, if applicable, the aggregate amount of fees Servicing Fees payable for any prior Settlement Period to the extent such amount has not been distributed to the Servicer); (ii) second, to each Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest and Fees due to such Credit Party for the immediately preceding Settlement Period (including up-front, continuing any additional amounts or success fees) received indemnified amounts payable under Section 5.03 and Section 13.01 in respect of such payments), plus, if applicable, the Transferred Loans;
amount of any such Interest and Fees (including any additional amounts or indemnified amounts payable under Section 5.03 and Section 13.01 in respect of such payments) payable for any prior Settlement Period to the extent such amount has not been distributed to such Credit Party; (iii) third, as set forth in clause (x) or (y) below, as applicable: (x) prior to the occurrence of the Termination Date: (i) first, to the LC Bank (for the benefit of the LC Bank and each Program Participant, pro rata) for the payment in full of the aggregate outstanding Reimbursement Obligations at such time and (ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excludingsecond, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRDthat a Borrowing Base Deficit exists on such date, to the ServicerLC Collateral Account, in reduction of the Adjusted LC Amount, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
amount necessary (ivafter giving effect to clause (i) FOURTH, above) to reduce the extent not paid by Borrowing Base Deficit to zero ($0); or (y) on and after the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end occurrence of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and Termination Date: (Bi) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent LC Bank (for the benefit of available Principal Collectionsthe LC Bank and each Program Participant, pro rata) for the payment in full of the aggregate outstanding Reimbursement Obligations at such time, and second, (ii) second to the extent of available Interest Collections, LC Collateral Account (a) the amount necessary to reduce the Administrative Agent for payment Adjusted LC Amount to each Managing Agent, on behalf of the related Lenders, zero ($0) and (b) an amount equal to the excessLC Fee -38- Expectation at such time; (iv) fourth, to the Credit Parties, the Affected Persons and the Borrower Indemnified Parties (ratably, based on the amount due and owing at such time), for the payment of all other Borrower Obligations then due and owing by the Borrower to the Credit Parties, the Affected Persons and the Borrower Indemnified Parties; and (v) fifth, the balance, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to be paid to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;its own account.
Appears in 1 contract
Samples: Receivables Financing Agreement (Davey Tree Expert Co)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, upon the occurrence and during the continuance of a Ratings Event, if so requested by the Administrative Agent, promptly upon (but in no event later than one (1) Business Day after) receipt of such request, segregate in a separate account approved by the Administrative Agent, which shall be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Borrower or received in any Lock-Box or Collection Account; provided, however, that so long as each of the conditions precedent set forth in Section 5.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to (i) pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement or (ii) make any Restricted Payment permitted by Section 7.01(r) (each such release, a “Release”). On each Payment Settlement Date, the Servicer on behalf (or, following its assumption of control of the Borrower shall pay for receipt by Collection Accounts, the applicable Lender no later than 11:00 a.m. (New York City timeAdministrative Agent) to the following Personsshall, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during distribute such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts Collections in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRSTfirst, to the BorrowerServicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of Servicing Fees payable for any prior Interest Period to the Transferred Loansextent such amount has not been distributed to the Servicer);
(ii) SECONDsecond, to each Hedge CounterpartyLender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts owing that Hedge Counterparty or indemnified amounts payable under its respective Hedging Agreement Sections 4.03 and 12.01 in respect of any Hedge Transaction(ssuch payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 4.03 and 12.01 in respect of such payments) payable for the payment thereof, but excluding, any prior Interest Period to the extent the Hedge Counterparty is such amount has not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amountsbeen distributed to such Lender or Credit Party;
(iii) THIRDthird, to the Serviceras set forth in clause (x), in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(ivy) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Serviceror (z) below, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;:
Appears in 1 contract
Settlement Procedures. On each Payment Date, (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on behalf a timely basis all information needed for such administration, including notice of the Borrower shall pay for receipt occurrence of any Termination Day and current computations of the Purchased Assets Coverage Percentage.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the applicable Lender no later than 11:00 a.m. (New York City time) to Seller or the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal CollectionsServicer:
(i) FIRSTset aside and hold in trust (and shall, to at the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect request of the Transferred Loans;
(iiAdministrator, segregate in a separate account approved by the Administrator) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end benefit of the preceding Settlement PeriodPurchasers, up to the Servicing Fee Limit Amount for out of such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTHCollections, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excessAggregate Discount accrued through such day for each Portion of Capital and not previously set aside, if anysecond, of Advances Outstanding over an amount equal to the lesser of (i) Fees accrued and unpaid through such day, and third, to the Borrowing Base or extent funds are available therefor, an amount equal to the Servicing Fee accrued through such day and not previously set aside,
(ii) the Facility Amountsubject to Section 1.6(f), together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any if such payment (as such Breakage Costs are notified day is not a Termination Day, remit to the Borrower by Seller the applicable Lender(s))remainder of such Collections. Such remainder shall, pro rata(x) to the extent representing a return of the Aggregate Capital, be automatically reinvested (ratably among the Purchasers according to each Purchaser's Capital) in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto and (y) to the extent not representing a return of the Aggregate Capital, be paid to the Seller in respect of the Deferred Purchase Price for the Purchased Assets; provided, however, that if the Purchased Assets Coverage Percentage would exceed 100%, then the Servicer shall not reinvest or remit to the Seller, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Assets Coverage Percentage to 100% (determined as if such Collections set aside had been applied to reduce the Aggregate Capital at such time), which amount shall be deposited to the Administration Account (for the benefit of the Purchasers) on the next Settlement Date in accordance with Section 1.6(c); provided, further, that (x) in the case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to its Purchaser Agent of its refusal, pursuant to Section 1.12, to extend its Commitment hereunder (an “Exiting Purchaser”) then in either case (x) or (y), above, such Purchaser's ratable share (determined according to outstanding Capital) of such remaining Collections shall not be reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below,
(iii) if such day is a Termination Day (or any day following the provision of a Declining Notice or an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of the Purchasers the entire remainder of such Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser an amount equal to such Purchaser's ratable share (determined according to outstanding Capital) of such Collections; provided, that solely for the purpose of determining such Purchaser's ratable share of such Collections, such Purchaser's Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice, as the case may be, until the date such Purchaser's Capital has been paid in full; it being understood that if such day is also a Termination Day, such Declining Conduit Purchaser's or Exiting Purchaser's Capital shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated)); provided, further, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of a Declining Notice or an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and the Majority Purchaser Agents (or in the case of a Declining Notice or an Exiting Notice, such Declining Notice or Exiting Notice, as the case may be, has been revoked by the related Declining Conduit Purchaser or Exiting Purchaser, respectively and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set- aside amounts shall, to the extent representing a return of Aggregate Capital (or the Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably (determined according to outstanding Capital), be reinvested and/or paid to the Seller in respect of the Deferred Purchase Price for the Purchased Assets in accordance with clause (ii) above on the day of such subsequent satisfaction or waiver of conditions or revocation of Declining Notice or Exiting Notice, as the case may be, and
(iv) subject to Section 1.6(f), pay to the Seller (on behalf of the Administrator and the Purchasers) for the Seller's own account and in payment of the Deferred Purchase Price for the Purchased Assets any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) above or the last proviso to clause (iii) above, plus (y) the amounts that are required to be set aside pursuant to clause (i) above, the provisos to clause (ii) and clause (iii) above, plus (z) all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.6(d), deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or, solely with respect to Collections held for the Purchasers pursuant to Section 1.6(f)(iii), such other date approved by the Administrator with at least five (5) Business Days prior written notice to the Administrator of such payment), Collections held for the Purchasers pursuant to Section 1.6(b)(i) or 1.6(f) plus the amount of Collections then held for the Purchasers pursuant to clauses (b)(ii) and (iii) of Section 1.6; provided, that if Peabody or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified Peabody (or such Affiliate) that the right to retain the portion of Collections set aside pursuant to Section 1.6(b)(i) that represents the Servicing Fee is revoked, Peabody (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.6(b)(i) that represents the Servicing Fee in payment in full of the accrued Servicing Fees so set aside. On the last day of each Settlement Period, each Purchaser (or its Purchaser Agent on its behalf) will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c) above, the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Assets Coverage Percentage does not exceed 100%, first to the Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) in payment in full of all accrued Discount and Fees with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) above and has not retained such amounts pursuant to clause (c) above, to the Servicer (payable in arrears on each Settlement Date) in payment in full of the accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Assets Coverage Percentage exceeds 100%, first to the Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) in payment in full of all accrued Discount and Fees with respect to each Portion of Capital, second to the Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Assets Coverage Percentage to 100%) (determined as if such Collections had been applied to reduce the aggregate outstanding Capital), third, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants, the amount (if any) necessary to cause the amount of cash collateral held in the LC Collateral Account to equal the aggregate outstanding amount of the LC Participation Amount (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Assets Coverage Percentage to 100%) (determined as if such Collections had been applied to reduce the aggregate outstanding amount of the LC Participation Amount), fourth, to the Servicer in payment in full of all accrued Servicing Fees, fifth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Purchaser Agents (for the benefit of such Purchaser Agent and the Purchasers in their respective Purchaser Groups), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder, and sixth, after the occurrence of the Final Payout Date, all additional Collections with respect to the Purchased Assets shall be paid to the Seller for its own account in payment of the Deferred Purchase Price for such Purchased Assets.
(e) For the purposes of this Section 1.6:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section l(g) or (n) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii) above, or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator, such Purchaser Agent or such Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator, such Purchaser Agent or such Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital), the Seller may do so as follows:
(i) the Termination Date has not occurred Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex C (the “Paydown Notice”) at least two Business Days prior to the date of such reduction for any reduction of Aggregate Capital and such notice shall include the amount of such reduction and the proposed date on which such reduction shall commence;
(ii) Advances Outstanding exceed on the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf proposed date of the commencement of such Non-Renewing Lenders onlyreduction and on each day thereafter, pro rata in accordance with their Advances Outstanding;the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(ixiii) NINTHthe Servicer shall hold such Collections in trust for the benefit of the Administrator (for the benefit of each Purchaser), to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agentthe Administrator by deposit into the Administration Account on the next Settlement Date immediately following the current Settlement Period or such other date approved by the Administrator and the Majority Purchaser Agents, on behalf of the related Lenders, and Capital shall be deemed reduced in the amount to be paid to the Administrator only when in fact finally so paid; provided, that the amount of unpaid Breakage Costs (other any such reduction shall be not less than Breakage Costs covered $300,000 and shall be an integral multiple of $100,000. Upon receipt by the Administrator in the Administration Account of any amount paid in reduction of the Aggregate Capital pursuant to sub-clause (viiiii) above) with respect , the Administrator shall cause such funds to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, be distributed to the Swingline Lender, Purchaser Agents (for the portion benefit of the Obligations constituting unpaid principal Purchasers in their respective Purchaser Groups) in payment of the Swing Advances;each Purchaser's outstanding Capital.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Peabody Energy Corp)
Settlement Procedures. (a) All Collections on Pool Receivables shall be held in the Continuing Collection Accounts until their application in accordance with the priority of payments set forth below; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 and Section 9.03(c) are satisfied on such date, the Administrative Agent may release to the Borrower from such Collections the amount (if any) necessary to (i) pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Second Tier Purchase and Sale Agreement or (ii) for distribution to the Pledgor as a return on the Pledgor’s equity interest in the Borrower (each such release, a “Release”). On each Payment Settlement Date, the Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to the following PersonsAdministrative Agent shall, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during distribute such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts Collections in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRSTfirst, to the BorrowerServicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of Servicing Fees payable for any prior Interest Period to the Transferred Loansextent such amount has not been distributed to the Servicer);
(ii) SECONDsecond, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, (A) expenses (excluding Servicing Transition Expenses) and indemnities then due to the extent Backup Servicer (up an amount not to exceed $150,000 per calendar year) and (B) if the Hedge Counterparty is Backup Servicer has succeeded the Initial Servicer as Servicer and the Initial Servicer has not timely paid the same Person as the Administrative AgentServicing Transition Expenses, any Swap Breakage and Indemnity AmountsServicing Transition Expenses (up to an amount not to exceed $300,000);
(iii) THIRDthird, to each Lender and other Credit Party (ratably, based on the Serviceramount then due and owing to such Credit Party), in an amount equal all accrued and unpaid Interest, Fees and Breakage Amount due to any Unreimbursed Servicer Advances, such Lender and other Credit Party for the payment thereofimmediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Amounts (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;
(iv) FOURTHfourth, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Serviceras set forth in clause (x) or (y) below, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;:
Appears in 1 contract
Samples: Loan and Security Agreement (Exela Technologies, Inc.)
Settlement Procedures. On (a) Collection of the Pool Receivables shall be administered by the Servicers in accordance with the terms of this Agreement. Each Seller shall provide to the Servicers on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Assets Coverage Percentage.
(b) Each Applicable Servicer shall, on each Payment Dateday on which Collections of Pool Receivables are received (or deemed received) by a Seller or Servicer, transfer (or cause to be transferred) such Collections from the Lock-Box Accounts and deposit (or cause to be deposited) such Collections into a Collection Account, except as otherwise permitted pursuant to Section 4.3(a) or Section 4.3(e). With respect to all Collections on deposit in the Collection Accounts on such day, the Servicer Servicers shall:
(i) set aside and maintain in the Collection Accounts for the benefit of the Purchaser (and, in the case of clause fourth below, the other applicable Purchaser Parties, subject to their right to receive such amounts solely in accordance with the priorities for payment set forth in Section 1.6(d) below), out of such Collections, first an amount equal to all Discount accrued through such day and not previously set aside, second, an amount equal to the sum of the Used Fees, Unused Fees and Breakage Costs accrued through such day and not previously set aside, third, to the extent funds are available therefor, an amount equal to the Servicing Fee accrued through such day and not previously set aside and fourth, to the extent funds are available therefor, any other amounts (other than return of Capital) owed to any Purchaser Party pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4 and not previously set aside;
(ii) subject to Section 1.6(f), if such day is not a Termination Day, remit to the Sellers, on behalf of the Borrower shall pay for receipt by Purchaser, the applicable Lender no later than 11:00 a.m. remainder of such Collections. Such remainder shall, (New York City timex) to the following Personsextent representing a return of Capital, from be automatically reinvested in Purchased Assets and other proceeds with respect thereto and (iy) the Collection Account, to the extent not representing a return of available fundsCapital, be paid (iion behalf of the Purchaser) Servicer Advancesto the Sellers in respect of the Deferred Purchase Price for the Purchased Assets; provided, however, that if, after giving effect to such Reinvestment, the Purchased Assets Coverage Percentage would exceed 100%, then the Servicers shall set aside and maintain in the Collection Accounts for the benefit of the Purchaser in accordance with clause (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (below the sum portion of such amounts described in clauses remaining Collections that, together with any other Collections set aside pursuant to this clause (iii), equals the amount necessary to reduce the Purchased Assets Coverage Percentage to 100% (ii) and or, if all such remaining Collections are not sufficient to reduce the Purchased Assets Coverage Percentage to 100%, then all such remaining Collections shall be so set aside for the benefit of the Purchaser), rather than remitting all of such remaining Collections to the Sellers for Reinvestment or for payment of the Deferred Purchase Price;
(iii) if such day is a Termination Day, set aside and maintain in the Collection Account for the benefit of the Purchaser Parties the entire remainder of such Collections; and
(iv) subject to Section 1.6(f), minus pay to the Sellers (on behalf of the Purchaser) for the Sellers’ own accounts and in payment of the Deferred Purchase Price for the Purchased Assets, any Collections in excess of: (x) amounts required to be deposited to the Revolver Loan Funding Accounts reinvested in accordance with Section 2.14 below being the “Available Collections”clause (ii) above, plus (y) the following amounts that are required to be set aside pursuant to clause (i) above, pursuant to the proviso to clause (ii) above and pursuant to clause (iii) above, plus (z) all reasonable and appropriate out-of-pocket costs and expenses of the Servicers for servicing, collecting and administering the Pool Receivables.
(c) On each Settlement Date, each Applicable Servicer shall (i) deposit into the applicable Purchaser’s Account (or such other account designated by the Agent) all Collections held on deposit in each Collection Account for the benefit of the Purchaser Parties pursuant to Section 1.6(b) and Section 1.6(f) and (ii) deposit to each Servicer’s own account, from Collections held on deposit in the Collection Account pursuant to clause third of Section 1.6(b)(i) in respect of the accrued Servicing Fee, an amount equal to such Servicer’s portion of such accrued Servicing Fee; provided, however, that no amounts shall be payable to Garland under clause (ii) above.
(d) Upon receipt of funds deposited into any of the Purchaser’s Accounts pursuant to Section 1.6(c), the Agent shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day, such funds shall be distributed in the following order of priority:: first to the Purchaser in payment in full of all unpaid Discount accrued during the most recently ended Discount Accrual Period, second to the Purchaser in payment in full of all unpaid Used Fees, Unused Fees and Breakage Costs accrued during the most recently ended Discount Accrual Period, third to the Purchaser in payment of outstanding Capital (and accrued Discount thereon) to the extent that funds have been set aside for such purpose pursuant to Section 1.6(f), fourth to the Purchaser, the Agent and any other Purchaser Party in payment in full of any other amounts owed thereto pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4 and fifth, any remaining amounts shall be paid to the Purchaser in payment of outstanding Capital; and
(aii) During if such distribution occurs on a Termination Day, such funds shall be distributed in the Revolving Periodfollowing order of priority: first to the Purchaser in payment in full of all accrued and unpaid Discount, second to the Purchaser in payment in full of all accrued and unpaid Used Fees, Unused Fees and Breakage Costs, third to the Purchaser in each case unless otherwise specified belowpayment in full of all outstanding Capital, applying Interest fourth to the Purchaser, the Agent and any other Purchaser Party in payment in full of any other amounts owed thereto by any Seller or any Servicer hereunder (including, without limitation, pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4) or under any other Transaction Document. After the occurrence of the Final Payout Date, all additional Collections first, and then Principal Collectionswith respect to the Purchased Assets shall be paid to the Sellers for their own accounts in payment of the Deferred Purchase Price for the Purchased Assets.
(e) For the purposes of this Section 1.6:
(i) FIRSTif on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, to the Borrowerdamaged, rejected, returned, repossessed or foreclosed goods or services, or any discount, rebate, credit, counterclaim, billing error or other adjustment made by any Seller, Originator or Servicer, or any setoff or dispute between any Seller, Originator or Servicer and any Obligor, the aggregate Seller of such Pool Receivable shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of fees (including up-front, continuing such reduction or success fees) received in respect of the Transferred Loansadjustment;
(ii) SECOND, to each Hedge Counterparty, if on any amounts owing that Hedge Counterparty under its respective Hedging Agreement day any of the representations or warranties in respect of any Hedge Transaction(sparagraphs (e), for the payment thereof, but excluding, to the extent the Hedge Counterparty (f) or (k) of Section 1 of Exhibit III is not true with respect to any Pool Receivable, the same Person as the Administrative Agent, any Swap Breakage and Indemnity AmountsSeller of such Pool Receivable shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) THIRDIf an Obligor makes a payment but does not designate the Receivable to which such payment applies, then the Applicable Servicer shall contact such Obligor promptly in order to determine to which Receivable such payment relates; provided, that if the Obligor does not direct the Applicable Servicer to apply such payment to a particular Receivable or Receivables within thirty (30) days after such payment has been received in a Lock-Box Account or by the Applicable Servicer, then, except as otherwise required by applicable law or the relevant Contract, such payment shall be applied to the ServicerReceivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable; and
(iv) if and to the extent the Agent, the Purchaser or any other Indemnified Party shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller of the relevant Pool Receivable and, accordingly, the Agent or the Purchaser, as the case may be, shall have a claim against such Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time a Seller shall wish to cause the reduction of the Aggregate Capital (in whole or in part), such Seller may do so as follows:
(i) such Seller shall give the Agent at least (x) one (1) Business Day’s prior written notice thereof in the case of any reduction of the aggregate U.S. Capital or (y) three (3) Business Days’ prior written notice in the case of any reduction of the aggregate CAD Capital or EUR Capital, in either case, in the form of Annex C (each, a “Paydown Notice”) setting forth the proposed amount of such reduction, the proposed date on which such reduction will commence (the “Paydown Date”) and the Approved Currency of the Capital to be reduced;
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections in the applicable Approved Currency with respect to the Capital or portion thereof to be reduced (including to any related Discount) not to be reinvested or used to pay the Deferred Purchase Price until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Applicable Servicer shall hold such Collections in a Collection Account for the benefit of the Purchaser, for payment to the Purchaser’s Account on the next Settlement Date (and in the case of a reduction of the entire Investment, the Servicers shall hold in the Collection Accounts for payment on such date an amount equal to any Unreimbursed Servicer Advances, for all other obligations of the payment thereof;
(iv) FOURTH, Sellers or Servicers to the extent not Purchaser, the Agent and each other Purchaser Party hereunder) in accordance with Section 1.6(c), and the Aggregate Capital shall be deemed reduced in the amount to be paid by the Servicer, to the Backup Servicer Purchaser’s Account only when in fact finally so paid; provided that, the amount of any such reduction shall be not less than (A) one million U.S. Dollars ($1,000,000) or an integral multiple of one hundred thousand Dollars ($100,000) in excess thereof for reductions of U.S. Capital, (B) one million Euros (€1,000,000) or an integral multiple of one hundred thousand Euros (€100,000) in excess thereof for reductions of Euro Capital, and any Successor Servicer(C) one million Canadian Dollars (CAD 1,000,000) or an integral multiple of one hundred thousand Canadian Dollars (CAD 100,000) in excess thereof for reductions of CAD Capital, in each case, unless the aggregate U.S. Capital, Euro Capital or CAD Capital, as applicable, in an amount equal shall have been reduced to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;zero.
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Settlement Procedures. On By delivery of each Payment DateSettlement Report, the Servicer on behalf shall be deemed to have instructed the Account Bank to withdraw the following amounts, in each case as set forth in the related Settlement Report: (A) from the Collection Account, Available Funds and (B) from the Credit Reserve Account, any Available Funds Shortfall. By delivery of each Settlement Report, the Borrower Servicer shall also be deemed to have instructed the Account Bank to pay for receipt by or make the applicable Lender no later than 11:00 a.m. (New York City time) following distributions in the following amounts to the following Persons, Persons on the related Settlement Date in the following order of priority from (ix) the Collection Account, to the extent of available funds, (ii) Servicer Advances, Available Funds and (iiiy) the Credit Reserve Account to the extent there is an Available Funds Shortfall, with respect to amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in payable under clauses (i), ) through (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:iv):
(i) FIRSTFirst, (1) to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, Servicer and any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Successor Servicer, in an amount equal to any Unreimbursed Servicer Advancesthe accrued and unpaid Servicing Fee and Supplemental Servicing Fee payable to each of them in accordance with the Servicing Agreement, for the payment thereof;
(iv2) FOURTH, to the extent not paid by the Servicer, all reimbursable out-of-pocket costs of liquidation, subject to the Backup limitations in the definition of “Liquidation Proceeds”, (3) to the Servicer all Supplemental Fees and any non-Ally guaranteed asset protection waiver reimbursements for the related Collection Period and then (4) to the Successor Servicer, as applicable, any unpaid Transition Expenses, subject, in the case of any Settlement Date occurring prior to the occurrence of the Termination Date, to the Transition Expenses Cap;
(ii) Second, (A) first, pro rata, to the Administrative Agent in an amount equal to any accrued and unpaid Backup Servicing Fee andAdministrative Agent Fees, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian Custodian, in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian ExpensesFees, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, Account Bank in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to Account Bank Fees, the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related LendersOwner Trustee, in an amount equal to any accrued and unpaid owner trustee fees, to the Trust Administrator, in an amount equal to any accrued and unpaid Trust Administrator Fee, and to the E-Sign Provider and E-Vault Provider in an amount equal to its accrued and unpaid fees in respect of Electronic Contracts (other than the fees required to be paid by the Collateral Custodian under the terms of the E-Vault Access Agreement not incurred in connection with the actions taken at the direction of the Administrative Agent or the Required Lenders) then (B) second, pro rata, to the Servicer, Administrative Agent, Collateral Custodian, Account Bank, Owner Trustee, E-Sign Provider and E-Vault Provider any expense reimbursements and indemnified amounts payable thereto in accordance with this Agreement, the Servicing Agreement, the Collateral Custodian Agreement, the Account Control Agreement, the Trust Agreement or the E-Vault Access Agreement (in the case of the E-Vault Provider, other than the expenses required to be paid by the Collateral Custodian under the terms of the E-Vault Access Agreement not incurred in connection with the actions taken at the direction of the Administrative Agent or the Required Lenders), in each of clauses (A) and (B) subject, in the case of any Settlement Date occurring prior to the occurrence of the Termination Date, to the Annual Expenses Cap, as applicable
(iii) Third, to each Lender, pro rata in accordance with such Lender’s Commitment Percentage, an amount equal to any accrued and unpaid (1) Interest with respect to the Outstanding Loan Amount, (2) Breakage Costs due and Unused Fee for such Payment Dateowing to the Lenders, and (3) all other Aggregate Unpaids (other than the Outstanding Loan Amount) then due under this Agreement to the Lenders;
(viiiiv) EIGHTH, firstFourth, to the extent of available Principal Collectionseach Lender, and second, pro rata in accordance with such Lender’s Commitment Percentage: (A) an amount equal to the extent positive excess (if any) of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf Outstanding Loan Amount as of the related LendersDetermination Date (after giving effect to the distribution made clauses (i) through (iii) above) over the Borrowing Base as of such Determination Date (including with regard to the positive excess (if any) of the Outstanding Loan Amount (Part AF) as of the related Determination Date (after giving effect to the distribution made clauses (i) through (iii) above) over the portion of the Borrowing Base related to Eligible Receivables (Part AF) as of such Determination Date and the positive excess (if any) of the Outstanding Loan Amount (Part S) as of the related Determination Date (after giving effect to the distribution made clauses (i) through (iii) above) over the portion of the Borrowing Base related to Eligible Receivables (Part S) as of such Determination Date) or (B) if a Turbo Event has occurred, an amount equal to the excessOutstanding Loan Amount;
(v) Fifth, if anyon any Settlement Date occurring prior to the Termination Date, of Advances Outstanding over to the lesser of Credit Reserve Account, the amount necessary to cause the amount on deposit therein to equal the Required Credit Reserve Account Amount;
(vi) Sixth, pro rata, to the extent not paid pursuant to clauses (i) the Borrowing Base or (ii) above (whether as a result of the Facility Amountlimitations on amounts set forth therein or otherwise) to the Servicer, together with Successor Servicer, Administrative Agent, Collateral Custodian, Account Bank or Owner Trustee any fees, expenses or indemnities owed to such Person;
(vii) Seventh, to any Person who is due any fee, reimbursable expense or indemnified amount under this Agreement that is accrued or due hereunder and not fully paid, the amount of Breakage Costs incurred by the applicable Lenders in connection with such fee, expense or indemnified amount; and
(viii) Eighth, any such payment (as such Breakage Costs are notified remaining amount shall be distributed to the Borrower by Certificateholder free and clear of any interest of the applicable Lender(s)), pro rataLenders and the Administrative Agent; provided, however, that in no event shall distributions pursuant to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in this clause (viiviii) above) with respect be used by the Borrower or the Certificateholder to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;acquire additional Receivables.
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Settlement Procedures. (i) The Servicer shall deposit into the Collection Account, on each Business Day selected by the SPV for a reduction of the Net Investment under Section 2.13 the amount of Collections held for the Agent pursuant to Section 2.12(a)(ii)(A)(1).
(ii) On any date on or prior to the Termination Date, if the sum of the Net Investment and Required Reserves exceeds the Net Pool Balance, the Servicer shall immediately pay to the Collection Account from amounts set aside pursuant to Section 2.12(a)(ii)(A)(2) an amount equal to such excess.
(iii) On each Payment Settlement Date, the Servicer on behalf shall deposit to the Collection Account out of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) amount, if any, held in trust pursuant to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (iiSection 2.12(a)(i) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, theretofore reinvested) Section 2.12(a)(iii) and not theretofore deposited to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal Collection Account pursuant to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lendersthis Section 2.12(b), an amount equal to the excess, if any, of Advances Outstanding over the lesser of such amount and the Net Investment; provided, that if the Agent gives its consent (which consent may be revoked at any time during the continuation of a Termination Event or a Potential Termination Event), the Servicer may retain amounts which would otherwise be deposited in respect of the accrued and unpaid Servicing Fee, in which case no distribution shall be made in respect of such Servicing Fee under clause (c) below. Any amounts set aside pursuant to Section 2.12(a) in excess of the amount required to be deposited in the Collection Account pursuant to this subsection (b) shall continue to be set aside and held in trust by the Servicer for application on the next succeeding Settlement Date, and provided, further, that if (i) the Borrowing Base or Servicer makes a deposit into the Collection Account in respect of a Collection of a Receivable and such 40 Collection was received by the Servicer in the form of a check that is not honored for any reason, (ii) the Facility Amount, together Servicer makes a mistake with respect to the amount of Breakage Costs incurred by any Collection and deposits an amount that is less than or more than the applicable Lenders in connection with any actual amount of such payment Collection or (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (iiii) the Termination Date has not occurred deposit was made in error and (ii) Advances Outstanding exceed constitutes an Excluded Amount, the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in Servicer shall appropriately adjust the amount subsequently deposited into the Collection Account to reflect such dishonored check or mistake. Any payment in respect of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect which a dishonored check is received shall be deemed not to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;have been paid.
Appears in 1 contract
Settlement Procedures. On each Payment Date, the Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City Winston-Salem, North Carolina time) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Commitment Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline LenderAdministrative Agent, all other amounts or Obligations then due under this Agreement or the other Transaction Documents (other than the Performance Guaranty) to the Administrative Agent, the Lenders, the Affected Parties or Indemnified Parties, each for the payment thereof;
(xii) TWELFTH, to the Servicer, in an amount equal to its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period not otherwise paid pursuant to priority SIXTH above; and
(xiii) THIRTEENTH, all remaining amounts to the Borrower.
(b) During the Amortization Period, to the extent of available Interest Collections:
(i) FIRST, unless an Early Termination Event shall have occurred and be continuing, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the portion payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the Obligations constituting preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid principal Servicing Fees to the end of the Swing Advancespreceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest, Commitment Fee and Revolver Loan Funding Fee for such Payment Date;
(viii) EIGHTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata;
(ix) NINTH, all remaining amounts shall be distributed to the Borrower, provided, however, that if an Early Termination Event has occurred and is continuing, all remaining amounts shall be applied as Principal Collections in accordance with clause (c) below.
(c) During the Amortization Period, to the extent of available Principal Collections:
(i) FIRST, to the parties listed above, any amount remaining unpaid pursuant to clauses FIRST through EIGHTH under clause (b) above, in accordance with the priority set forth thereunder;
(ii) SECOND, following the occurrence of the Termination Date, to the Administrative Agent for ratable payment to each Managing Agent, on behalf of the related Lenders, in an amount to reduce Advances Outstanding to zero and to pay any other Obligations in full;
(iii) THIRD, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(iv) FOURTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (b) above) with respect to any prepayments made on such Payment Date, Increased Costs and/or Taxes (if any);
(v) FIFTH, to the Administrative Agent, all other amounts or Obligations then due under this Agreement or the other Transaction Documents (other than the Performance Guaranty) to the Administrative Agent, the Lenders, the Affected Parties or Indemnified Parties, each for the payment thereof;
(vi) SIXTH, to the Servicer, if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period not otherwise paid pursuant to clause SIXTH of subsection (b) above; and
(vii) SEVENTH, all remaining amounts to the Borrower.
Appears in 1 contract
Samples: Credit Agreement (Gladstone Investment Corporation\de)
Settlement Procedures. On each Payment Date, the Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. 2:00 p.m. (New York City time) to ), the following PersonsPaying Agent, based solely on the Monthly Report delivered for the most recent Reporting Date (upon which the Paying Agent may conclusively rely), shall, from (i) amounts on deposit in the Collection AccountAccount (including, to the extent without limitation, amounts received in respect of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period) to the extent received on or before the last day of the related Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) ), cause to be disbursed the following amounts in the following order of priority:
(a) During the Revolving PeriodPeriod and prior to the occurrence and continuance of an Event of Default, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Available Collections:
(i) FIRSTFirst, to the BorrowerServicer in an amount equal to any Unreimbursed Servicer Advances, for the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loanspayment thereof;
(ii) SECONDSecond, to the Servicer, in an amount equal to its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(iii) Third, ratably, (A) to any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Transition Costs and Market Servicing Fee Differential, each for the payment thereof, (B) to the Bank Parties, the Collection Account Bank and the Funding Account Bank in an amount equal to any accrued and unpaid (including with respect to prior Payment Dates) Bank Fees and Expenses, if any, for the payment thereof in an aggregate amount under this clause (B), excluding Bank Fees, not to exceed the Bank Expense Cap, and (C) to the Administrative Agent, in an amount equal to any accrued and unpaid Administrative Agent Fee and Administrative Expenses;
(iv) Fourth, to each Hedge Counterparty, any amounts owing that to such Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTHFifth, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viiivi) EIGHTHSixth, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s))Maximum Availability, pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ixvii) NINTHSeventh, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing to that Hedge Counterparty;
(xviii) TENTHEighth, ratably, to any Successor Servicer, as applicable, and the Administrative Agent for payment Bank Parties, the Collection Account Bank and the Funding Account Bank in an amount equal to all other amounts then due under this Agreement or any other Transaction Document to any Successor Servicer, the Bank Parties, the Collection Account Bank or the Funding Account Bank (including Bank Fees and Expenses), in each case to the extent not paid pursuant to clause THIRD above;
(ix) Ninth, to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, Breakage Costs and/or Taxes (if any);
(xix) ELEVENTHTenth, to the Swingline LenderAdministrative Agent, the Lenders, the Affected Parties and Indemnified Parties, all other amounts or Obligations then due under this Agreement or the other Transaction Documents to the Administrative Agent, the Lenders, the Affected Parties or Indemnified Parties, each for the payment thereof;
(xi) Eleventh, to the Servicer, all other amounts then due under this Agreement or the other Transaction Documents to the Servicer, for the portion payment thereof; and
(xii) Twelfth, all remaining amounts to the Borrower’s Funding Account.
(b) During the Amortization Period or following the occurrence and during the continuance of an Event of Default, to the extent of Available Collections:
(i) First, to the Servicer in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(ii) Second, to the Servicer, in an amount equal to its accrued and unpaid Servicing Fees to the end of the Obligations constituting preceding Settlement Period for the payment thereof;
(iii) Third, ratably, (A) to any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid principal Transition Costs and Market Servicing Fee Differential, each for the payment thereof, (B) to the Bank Parties, the Collection Account Bank and the Funding Account Bank in an amount equal to any accrued and unpaid (including with respect to prior Payment Dates) Bank Fees and Expenses, if any, for the payment thereof, and (C) to the Administrative Agent, in an amount equal to any accrued and unpaid Administrative Agent Fee and Administrative Expenses;
(iv) Fourth, to each Hedge Counterparty, any amounts owing to such Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(v) Fifth, to each Managing Agent, on behalf of the Swing Advancesrelated Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(vi) Sixth, ratably to each Managing Agent, on behalf of the related Lenders, in an amount to reduce Advances Outstanding to zero;
(vii) Seventh, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing to that Hedge Counterparty;
(viii) Eighth, to any Successor Servicer, in an amount equal to all other amounts then due under this Agreement or any other Transaction Document to any Successor Servicer to the extent not paid pursuant to clause Third above;
(ix) Ninth, to each Managing Agent, on behalf of the related Lenders, in the amount of Increased Costs, Breakage Costs and/or Taxes (if any);
(x) Tenth, to the Administrative Agent, the Lenders, the Affected Parties and Indemnified Parties, all other amounts or Obligations then due under this Agreement or the other Transaction Documents to the Administrative Agent, the Lenders, the Affected Parties or Indemnified Parties, each for the payment thereof;
(xi) Eleventh, to the Servicer, all other amounts then due under this Agreement or the other Transaction Documents to the Servicer, for the payment thereof; and
(xii) Twelfth, all remaining amounts to the Borrower’s Funding Account.
Appears in 1 contract
Settlement Procedures. (a) On each Payment Date, the Servicer on behalf shall instruct (by delivery of the Borrower shall Monthly Report on the related Reporting Date) the Paying Agent to pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) the Collection Account, Account to the extent of available fundsAvailable Funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During , as set forth in the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal CollectionsMonthly Report:
(i) FIRSTFirst, pro rata, (A) to the Servicer, the accrued and unpaid Servicing Fee and, to the Borrowerextent not previously retained by the Servicer, all ancillary fees, including late fees, extension fees, administrative fees or similar charges allowed by Applicable Law, and (B) to the Owner Trustee, the aggregate amount of fees (including up-frontaccrued and unpaid fees, continuing or success fees) received in respect costs and expenses and any other amounts not otherwise paid which are payable to the Owner Trustee under Article VII of the Transferred LoansTrust Agreement, in an amount not to exceed $[***] per annum;
(ii) SECONDSecond, pro rata, (A) to the Paying Agent, an amount equal to any accrued and unpaid Paying Agent Fee, together with its accrued and unpaid expenses and indemnities (which expenses and indemnities prior to the occurrence of a Termination Event shall not exceed $[***] per annum), (B) to the Successor Servicer, any unpaid Transition Expenses payable pursuant to Section 7.15(d), and (C) to the extent not previously paid, to each Hedge Counterpartythe E-Vault Provider, any amounts unpaid fees and expenses due and owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for Electronic Contracts maintained in the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity AmountsWarehouse Vault Partition;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTHThird, to the extent not paid for by the ServicerUACC, to the Backup Servicer Custodian (if not UACC), the accrued and unpaid Custodian Fee and any Successor Serviceraccrued and unpaid expenses and indemnities which amounts may be limited as per the successor Custodian Agreement;
(iv) Fourth, as applicablepro rata in accordance with their Invested Percentages, to each Lender in an amount equal to any accrued and unpaid Backup Servicing Fee and(i) Senior Interest on the Loans, if any(ii) the Unused Fee, and (iii) any accrued and unpaid Transition Costs, Backup Servicer Expenses Senior Interest on the Loans and Market Servicing Fee Differential, each for the payment thereofUnused Fees that remain unpaid on one or more prior Payment Dates;
(v) FIFTHFifth, pro rata in accordance with their Invested Percentages, to each Lender, in an amount equal to the extent not paid by the ServicerMonthly Principal Payment Amount;
(vi) Sixth, pro rata in accordance with their Invested Percentages, to the Collateral Custodian each Lender in an amount equal to any accrued and unpaid Collateral Custodian Fee Subordinate Interest on the Loans, any accrued and Collateral Custodian Expenses, if any, for unpaid Subordinate Interest on the payment thereofLoans that remain unpaid on one or more prior Payment Dates;
(vivii) SIXTHSeventh, if a Partial Expiration Event has occurred, the remaining funds to reduce pro rata the portion of the Loans Outstanding constituting the Lender Advances of any Non-Extending Lender, to zero;
(viii) Eighth, pro rata, to the Affected Parties and the Indemnified Parties, all other Aggregate Unpaids (other than the principal amount of the Loans Outstanding) then due under this Agreement or the other Basic Documents to them;
(ix) Ninth, to the Servicer, in an amount equal the Owner Trustee, the Custodian (if other than UACC), the Paying Agent and any Successor Servicer, any fees, expenses and indemnities not paid pursuant to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of clauses (i) the Borrowing Base or through (iiiii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rataabove; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;and
(x) TENTHTenth, any remaining amount shall be distributed to the Administrative Agent for payment to each Managing Agent, on behalf of Borrower into the related Lenders, in Borrower’s Account or such other account as directed by the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;Borrower.
Appears in 1 contract
Samples: Warehouse Agreement (Vroom, Inc.)
Settlement Procedures. On each Payment DateRemittance Date and each --------------------- day thereafter until the Aggregate Unpaids have been paid in full, the Servicer on behalf of the Borrower Agent shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from apply (i) amounts on deposit in the Collection Account, Account pursuant to the extent of available funds, Section 2.6 or 7.3(h) and (ii) Servicer Advances, and (iii) the Percentage Factor of all remaining amounts received on deposit in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts Collection Account in the following order of priority:
(a) During : first, in ----- payment of the Revolving accrued Discount for each Tranche Period, and second, in each case unless otherwise specified belowpayment of ------ the Commitment Fee, applying Interest Collections firstthird, in payment of any additional Discount due pursuant to ----- Section 7.4, fourth, in payment of the aggregate of all other amounts then owed ------ (whether due or accrued) hereby by the Transferor to the Banks or the Agent (other than the Total Outstanding Investment), and then Principal Collections:
fifth, in reduction of the ----- Total Outstanding Investment. In the event that on any Remittance Date and any day thereafter, the Aggregate Unpaids have not been paid in full after giving effect to the preceding sentence, the Agent shall apply any other amounts on deposit in the Collection Account to the payment in full of the Aggregate Unpaids in accordance with the foregoing priority. Following the date on which the Total Outstanding Investment has been reduced to zero, all accrued Discount and applicable fees have been paid in full, all other Aggregate Unpaids have been paid in full and this Agreement shall have terminated pursuant to Section 11.1, (i) FIRSTthe Agent shall recompute the Percentage Factor, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related LendersBanks, in an amount equal shall be considered to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, have reconveyed to the extent of available Principal Collectionsapplicable Transferor any interest in the Receivables (including the Transferred Interest), and second, (iii) the Agent shall release to the extent of available Interest Collections, Transferor any remaining Collections held in the Collection Account pursuant to this Section 2.4 and (iv) the Administrative Agent for payment to each Managing Agent, on behalf of the related LendersBanks, an amount equal shall execute and deliver to the excessTransferor, if any, of Advances Outstanding over such documents or instruments as are necessary to terminate the lesser of (i) Agent's interest in the Borrowing Base Receivables. Any such documents shall be prepared by or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;Transferor.
Appears in 1 contract
Samples: Transfer and Administration Agreement (Mattel Inc /De/)
Settlement Procedures. On each Payment Date, the Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Commitment Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, if and when due annually in accordance with the Fee Letter, to the Swingline LenderAdministrative Agent for payment to each Managing Agent, for the portion on behalf of the Obligations constituting related Lenders, in an amount equal to the Minimum Earnings Shortfall Amount due and unpaid principal of the Swing Advances;on such Payment Date.
Appears in 1 contract
Settlement Procedures. (a) On each Payment Date, the Servicer Collateral Agent shall withdraw Available Funds and any Excess Reserve Amount and investment earnings on behalf of amounts on deposit in the Borrower shall pay for receipt by Collection Account from the Collection Account and allocate and distribute such amounts to the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts Person in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the BorrowerHedge Counterparty, the aggregate an amount equal to any Hedge Costs (exclusive of fees termination payments) and any such Hedge Costs (including up-front, continuing or success feesexclusive of termination payments) received in respect of the Transferred Loans;unpaid from any prior Payment Date.
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicerso long as it has not become the Servicer hereunder, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee anddue in respect of such Payment Date, if anyany unpaid Backup Servicing Fee from any prior 44 Payment Date, any reasonable out-of-pocket expenses incurred by the Backup Servicer, and any accrued and unpaid Transition Costs, Indemnified Amounts owed by the Borrower to the Backup Servicer Expenses and Market Servicing Fee Differentialin an aggregate amount up to $17,000 per month (the “Cap”); provided, each for however, that in the payment thereofevent of an acceleration resulting from a Termination Event specified under Section 10.1(d)(i) or Section 10.1(f) hereunder, such Cap will not apply;
(viii) FIFTHTHIRD, (A) to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee Servicing Fees due in respect of such Payment Date and Collateral Custodian Expensesany Servicing Fees unpaid from any prior Payment Date; provided, however, if anythe Servicer has been replaced pursuant to Section 6.12 such amount shall not exceed the Capped Servicing Fee; and (B) to the Backup Servicer, if it has become the Successor Servicer, any Transition Expenses;
(iv) FOURTH, to the Deal Agent for the payment thereofaccount of the Lenders, an amount equal to the sum of any accrued and unpaid (A) Yield and Breakage Costs, (B) Program Fee, and (C) Unused Fee, Increased Costs and any Additional Amounts due in respect of such Payment Date and any such amounts unpaid from any prior Payment Date;
(v) FIFTH, during the Revolving Period, to the Deal Agent for the account of the Lenders, an amount equal to the Monthly Principal Payment Amount for such Payment Date;
(vi) SIXTH, to the any Successor Servicer, in to the extent not already paid pursuant to clause THIRD above, an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereofReliening Expenses;
(vii) SEVENTH, to (A) during the Administrative Agent for payment Revolving Period with respect to each Managing AgentDissenting Lender after the time its Commitment has been reduced to zero pursuant to Section 2.1(b)(iv), on behalf of the related Lenderspro rata, in an amount equal to any accrued its outstanding Capital until such Dissenting Lender’s Capital has been reduced to zero and unpaid Interest and Unused Fee (B) during the Amortization Period, to the Deal Agent for such the account of the Lenders, pro rata, the Additional Principal Payment DateAmount, until Capital has been reduced to zero;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Deal Agent for payment to each Managing Agent, on behalf the account of the related LendersLenders and the Backup Servicer, an amount equal to, without double counting, Increased Costs, any Additional Amounts and Indemnified Amounts (provided that, with respect to the excessBackup Servicer, if any, of Advances Outstanding over the lesser of (isuch Indemnified Amounts shall include only those Indemnified Amounts not paid pursuant to clause SECOND above) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders due in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf respect of such Non-Renewing Lenders only, pro rata in accordance with their Advances OutstandingPayment Date and unpaid from any prior Payment Date;
(ix) NINTH, to each Hedge Counterpartythe Reserve Account, (A) an amount equal to any Swap Breakage outstanding Reserve Advances, (B) the amount necessary to cause the amount on deposit in the Reserve Account to equal the Required Reserve Account Amount (after giving effect to any deposits made in subclause (A)) and Indemnity Amounts owing that Hedge Counterparty(C) at the election of the Borrower (or the Servicer, on its behalf), an amount up to the Excess Reserve Maximum Amount;
(x) TENTH, to the Administrative Agent for payment to each Managing AgentBackup Servicer, on behalf any Servicing Fee due in respect of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased CostsDate, and/or Taxes (if any)to the extent not paid pursuant to clause THIRD above and any such Servicing Fee unpaid from any prior Payment Date;
(xi) ELEVENTH, to the Swingline Lender, Deal Agent for the portion account of any other applicable Person, all remaining amounts up to all Aggregate Unpaids (during the Revolving Period, other than Capital) until paid in full; and
(xii) TWELFTH, to the Borrower any remaining amounts.
(b) One Business Day per calendar month, the date of which is to be chosen by the Borrower, the Collateral Agent shall, upon two Business Days’ prior written request of the Obligations constituting unpaid principal Borrower, withdraw from the Collection Account an amount not to exceed the amount on deposit therein on the date of such request. The Collateral Agent shall distribute such amount to the Deal Agent for the account of the Swing Advances;Lenders, to be distributed by the Deal Agent to the Lenders, pro rata, as a payment in reduction of Capital. Notwithstanding anything in this Section 2.7(b) to the contrary, the Collateral Agent shall not be required to effect any such withdrawal or the Deal Agent make any such distribution until an officer of the Servicer or a representative of the Servicer designated by an officer of the Servicer has certified to the Collateral Agent and the Deal Agent in writing (which shall include electronic transmission) that it reasonably believes that at the end of the related Collection Period the sum of Available Funds and Excess Reserve Amount, after giving effect to such payment, will be greater than the amount needed to make the payments required pursuant to Section 2.7(a)(i) through (xi).
(c) (i) If on any Payment Date the amount paid pursuant to Section 2.7(a)(iv) and (vii) is insufficient to cover all amounts due thereunder on such Payment Date the Collateral Agent shall withdraw from the Reserve Account an amount equal to the lesser of such shortfall and the amount of funds on deposit in the Reserve Account (such withdrawal, a “Reserve Advance”) and deposit such amount to the Collection Account. The Collateral Agent shall pay such amount to the Deal Agent for payment to the Lenders.
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corp)
Settlement Procedures. (a) On each Payment Date, the Servicer on behalf Borrower (or at all times after the occurrence and continuance of a Termination Event, the Borrower Collateral Agent) shall pay for receipt by the applicable Lender no later than 11:00 a.m. withdraw Available Funds and any Excess Reserve Amount (New York City time) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts applied in accordance with Section 2.14 below being 2.6(c)) and investment earnings on amounts on deposit in the “Available Collections”) Collection Account from the following Collection Account and allocate and distribute such amounts to the applicable Person in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the BorrowerHedge Counterparty, the aggregate an amount equal to any Hedge Costs (exclusive of fees termination payments) and any such Hedge Costs (including up-front, continuing or success feesexclusive of termination payments) received in respect of the Transferred Loansunpaid from any prior Payment Date;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts[Reserved];
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicerso long as it has not become the Servicer hereunder, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee anddue in respect of such Payment Date, if anyany unpaid Backup Servicing Fee from any prior Payment Date, any reasonable out-of-pocket expenses incurred by the Backup Servicer, and any accrued and unpaid Indemnified Amounts owed by the Borrower to Xxxxx Fargo in an aggregate amount up to $17,000 per month (the “Cap”); provided, however, that in the event of an acceleration resulting from a Termination Event specified under Section 9.1(e)(i) or Section 9.1(g) hereunder, such Cap will not apply;
(iv) FOURTH, (A) to the Servicer, an amount equal to any accrued and unpaid Servicing Fees due in respect of such Payment Date and any Servicing Fees unpaid from any prior Payment Date; provided, however, if the Servicer has been replaced pursuant to Section 6.12 such amount shall not exceed the Capped Servicing Fee; and (B) to the Backup Servicer, if it has become the Successor Servicer, any Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereofExpenses;
(v) FIFTH, to the extent not paid by the ServicerLenders, to the Collateral Custodian in ratably, an amount equal to the sum of any accrued and unpaid Collateral Custodian (A) Interest and Breakage Costs, (B) Program Fee, and (C) Unused Fee due in respect of such Payment Date and Collateral Custodian Expenses, if any, for the payment thereofany such amounts unpaid from any prior Payment Date;
(vi) SIXTH, during the Revolving Period, to the ServicerLenders, in ratably (based on the outstanding principal amount of the Revolving Loans of each Lender), an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Monthly Principal Payment Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereofPayment Date;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agentany Successor Servicer, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment DateReliening Expenses;
(viii) EIGHTH, firstduring the Amortization Period, to the extent of available Principal CollectionsLenders, and second, to ratably (based on the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf outstanding principal amount of the related LendersRevolving Loans of each Lender), an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Additional Principal Payment Amount, together with until the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified Aggregate Loan Amount has been reduced to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstandingzero;
(ix) NINTH, ratably to each Hedge Counterpartythe Lenders and the Backup Servicer, an amount equal to Increased Costs, any Swap Breakage Additional Amounts and Indemnity Indemnified Amounts owing that Hedge Counterparty(provided that, with respect to the Backup Servicer, such Indemnified Amounts shall include only those Indemnified Amounts not paid pursuant to clause THIRD above) due in respect of such Payment Date and unpaid from any prior Payment Date;
(x) TENTH, to the Administrative Agent for payment Reserve Account, (A) an amount equal to each Managing Agent, any outstanding Reserve Advances and (B) the amount necessary to cause the amount on behalf of the related Lenders, deposit in the amount of unpaid Breakage Costs Reserve Account to equal the Required Reserve Account Amount (other than Breakage Costs covered in clause (vii) above) with respect after giving effect to any prepayments deposits made on such Payment Date Increased Costs, and/or Taxes in subclause (if anyA));
(xi) ELEVENTH, to the Swingline LenderBackup Servicer, for if it has become the Successor Servicer, any Servicing Fee due in respect of such Payment Date, to the extent not paid pursuant to clause FOURTH above and any such Servicing Fee unpaid from any prior Payment Date;
(xii) TWELFTH, to any other applicable Person, all remaining amounts up to all Aggregate Unpaids (during the Revolving Period, other than the Aggregate Loan Amount) until paid in full; and
(xiii) THIRTEENTH, to the Borrower any remaining amounts.
(b) One Business Day per calendar month, the date of which is to be chosen by the Borrower, the Borrower may, upon two Business Days’ prior written notice to the Deal Agent and the Lenders, withdraw from the Collection Account an amount not to exceed the amount on deposit therein on the date of such request. The Borrower shall distribute such amount ratably to the Lenders, as a payment in reduction of the portion of the Obligations constituting unpaid principal Aggregate Loan Amount funded or maintained by each such Lender. Notwithstanding anything in this Section 2.6(b) to the contrary, the Borrower shall not be required to effect any such withdrawal or make any such distribution until an officer of the Swing Advances;Servicer or a representative of the Servicer designated by an officer of the Servicer has certified to the Borrower, the Collateral Agent, the Deal Agent and the Lenders in writing (which shall include electronic transmission) that it reasonably believes that at the end of the related Collection Period the sum of Available Funds and Excess Reserve Amount, after giving effect to such payment, will be greater than the amount needed to make the payments required pursuant to Section 2.6(a)(i) through (xii).
(c) (i) If on any Payment Date the amount paid pursuant to Section 2.6(a)(v) and (vi) is insufficient to cover all amounts due thereunder on such Payment Date, the Borrower (or the Collateral Agent, as applicable) shall withdraw from the Reserve Account an amount equal to the lesser of such shortfall and the amount of funds on deposit in the Reserve Account (such withdrawal, a “Reserve Advance”) and deposit such amount to the Collection Account. The Borrower (or the Collateral Agent, as applicable) shall pay such amount ratably to the Lenders. (ii) If on any Payment Date during the Amortization Period, the amount paid pursuant to Section 2.6(a)(viii) is insufficient to reduce the Aggregate Loan Amount to zero, the Deal Agent (acting at the direction, or with the consent, of the Required Lenders acting in their respective sole discretion), may direct the Collateral Agent to withdraw any or all of the amount on deposit in the Reserve Account, and pay such amount ratably to the Lenders.
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corp)
Settlement Procedures. (a) On each Payment Date, the Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) the Collection Account, to the extent of available fundsfunds including interest earnings on the Collection Account, (ii) a Servicer AdvancesAdvance if made or required pursuant to Section 6.5, and (iii) amounts received in respect of any Hedge Agreement during such Settlement the applicable Collection Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below ) being the “"Available Collections”") the following amounts in the following order of priority:
(aA) During FIRST, pro rata to each Hedge Counterparty, any amounts, including any Hedge Breakage Costs, owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s) (other than payments in respect of Termination of any Hedging Agreement), for the Revolving payment thereof;
(C) THIRD, to the Servicer, but only out of Interest Collections, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(D) FOURTH, to the Servicer, in an amount equal to its accrued and unpaid Servicing Fees to the end of the preceding Collection Period;
(E) FIFTH, to the extent not paid for by FIB, to the Backup Servicer, in an amount equal to any accrued and unpaid Backup Servicer Fee, for the payment thereof;
(F) SIXTH, to the extent not paid for by FIB, to the Collateral Custodian, in an amount equal to any accrued and unpaid Collateral Custodian Fee, for the payment thereof;
(G) SEVENTH, to the Deal Agent for the ratable payment to each case unless otherwise specified belowPurchaser, applying Interest Collections firstin an amount equal to any accrued and unpaid Yield and Breakage Costs for such Payment Date;
(H) EIGHTH, to the Deal Agent for the ratable payment to each Purchaser in an amount equal (I) to the extent not paid by FIB, to any accrued and then Principal Collections:unpaid Commitment Fees and (II) to any accrued and unpaid Program Fees;
(I) NINTH, to the Deal Agent, in the amount of unpaid Increased Costs and/or Taxes, for payment to the Purchasers in respect thereof;
(J) TENTH, to the extent that funds are available, any remaining amounts may be reinvested in Eligible Loans; provided, however, that if the aggregate Capital exceeds the lesser of (i) FIRSTthe Capital Limit or (ii) the Purchase Limit, an amount equal to such excess shall be paid to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred LoansDeal Agent to pay down Capital outstanding;
(iiK) SECONDELEVENTH, pro rata to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excludingtermination of such Hedging Agreement;
(L) TWELFTH, to the extent the Hedge Counterparty is not the same Person as the Administrative Agentfunds are available to satisfy any unpaid Indemnified Amounts, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, amounts required to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not be paid by the Servicer, Seller pursuant to the Backup Servicer indemnification provisions of Section 8.1 and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee other amounts due hereunder; and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(vM) FIFTHTHIRTEENTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if such Payment Date occurs during the Servicer is Gladstone Management Corporation or Revolving Period, any of its Affiliates, its accrued and unpaid Servicing Fees remaining amount shall be distributed to the end of the preceding Settlement PeriodSeller, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to if such Payment Date occurs during the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTHAmortization Period, to the Administrative Deal Agent for payment to each Managing Agent, on behalf in reduction of the related Lenders, outstanding Capital to zero and the payment in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;full of the Aggregate Unpaids.
(viiib) EIGHTHOn each Business Day during the Revolving Period, firstthe Servicer may, to the extent of available any Principal Collections, and second, to Collections on deposit in the extent Collection Account as of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf last day of the related LendersCollection Period, an amount equal use such funds toward the Purchase of Eligible Loans pursuant to item TENTH in subsection (a) above.
(c) Notwithstanding anything to the excesscontrary contained in this Section 2.7 or any other provision in this Agreement, if any, on any Business Day during the Revolving Period the aggregate outstanding amount of Advances Outstanding over Capital shall exceed the lesser of (i) the Borrowing Base Purchase Limit or (ii) the Facility AmountCapital Limit, together with then the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified Seller shall remit to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Deal Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect prior to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xireinvestment of funds as set forth in item TENTH of Section 2.7(a) ELEVENTH, to and in any event no later than the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;close of
Appears in 1 contract
Samples: Loan Purchase and Servicing Agreement (First International Bancorp Inc)
Settlement Procedures. On each Payment Date, Date the Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) the Collection Account, to the extent of available funds, funds and (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), ) and (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During To the Revolving extent of available Interest Collections and any amounts on deposit in the Reserve Account in excess of the Reserve Account Required Amount:
(i) First, to the Backup Servicer (including in its capacity as Successor Servicer, if applicable), in amount equal to any accrued and unpaid currently due Backup Servicer Fee, all unpaid Backup Servicer Fees due from a prior Payment Date, any unpaid Backup Servicer Expenses and amounts due to the Backup Servicer as an Indemnified Party, and any Transition Costs, for the payment thereof; provided that the amount of Transition Costs payable under this clause Second shall not exceed $100,000 in the aggregate with respect to such Payment Date;
(ii) Second, to the Trustee in an amount equal to any accrued and unpaid currently due Trustee Fee, all unpaid Trustee Fees due from a prior Payment Date, all unpaid Trustee Expenses, and any other amounts due to the Trustee as an Indemnified Party, for the payment thereof;
(iii) Third, (A) to the initial Servicer, in an amount equal to its accrued and unpaid Senior Portion of Servicing Fee and (B) to any Successor Servicer, the accrued and unpaid Servicing Fee and Market Servicing Fee Differential to the end of the preceding Collection Period, for the payment thereof; provided that the amount of Market Servicing Fee Differential payable in any 12-month period under this clause Third shall not exceed 0.25% of the Aggregate Outstanding Principal Balance;
(iv) Fourth, pro rata to each Lender in an amount equal to any accrued and unpaid Interest and Breakage Costs, for the payment thereof;
(v) Fifth, to the Reserve Account, an amount, if necessary, required for the amount on deposit in each case unless otherwise specified belowthe Reserve Account to equal the Reserve Account Required Amount;
(vi) Sixth, applying Interest Collections firstpro rata to the Lenders, (A) if an Event of Default shall not have occurred and be continuing, (x) in the first twelve months following the Closing Date, if the Loan-to-Value Ratio shall exceed 52%, in an amount necessary to reduce the Loans Outstanding such that the Loan-to-Value Ratio shall not exceed 52%, for the payment thereof and (y) thereafter, if the Loan-to-Value Test shall not be satisfied, in an amount necessary to reduce the Loans Outstanding such that the Loan-to-Value Ratio Test shall be satisfied, for the payment thereof and (B) if an Event of Default has occurred and is continuing, pro rata to the Lenders, in an amount necessary to reduce the Loans Outstanding to zero, for the payment thereof;
(vii) Seventh, to the Servicer, (x) all Indemnified Amounts and (y) reimbursement of all expenses payable to it pursuant to Section 7.7 and any other amounts then due to it under this Agreement, for the payment thereof; and
(viii) Eighth, all remaining amounts shall be distributed to the Borrower.
(b) To the extent of available Principal Collections:
(i) FIRSTFirst, to the Borrowerparties listed above, any amount remaining unpaid pursuant to clauses First through Fifth under clause (a) above, in accordance with the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loanspriority set forth thereunder;
(ii) SECONDSecond, pro rata to each Hedge Counterpartythe Lenders, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s)an amount necessary to reduce the Loans Outstanding to zero, for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRDThird, to the Administrative Agent, the Lenders, the Affected Parties and the Indemnified Parties (other than the Servicer, if the Servicer is an Affiliate of the Borrower), pro rata in an accordance with the amount equal owed to any Unreimbursed Servicer Advancessuch Person under this clause Fourth, all other amounts (other than Loans Outstanding) then due under this Agreement, for the payment thereof;
(iv) FOURTHFourth, to the extent not paid by the Servicer, to the Backup Servicer Servicer, to the Trustee, and to any Successor Servicer, as applicable, pro rata in accordance with the amount owed to such Person under this clause Fourth, in an amount equal to any accrued and unpaid Backup Servicing Fee andServicer Expenses, if anyTrustee Expenses, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each Servicing Fee and Transition Costs, for the payment thereof;
(v) FIFTHFifth, to the extent not paid by Servicer (if an Affiliate of the ServicerBorrower), (x) all Indemnified Amounts and (y) reimbursement of all expenses payable to the Collateral Custodian in an amount equal it pursuant to Section 7.7 and any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if anyother amounts then due to it under this Agreement, for the payment thereof;; and
(vi) SIXTHSixth, all remaining amounts shall be distributed to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;Borrower.
Appears in 1 contract
Settlement Procedures. On each Payment DateMonthly Report, the Servicer on behalf of shall instruct the Borrower shall Collateral Custodian (or the Qualified Institution then holding the Collection Account and the Reserve Account) to pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, on the related Payment Date, from (i) the Collection Account, Account to the extent of available funds, Available Funds (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being extent there is an Available Funds Shortfall, the “Available Collections”Reserve Account) the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRSTFirst, to the BorrowerServicer, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loansaccrued and unpaid Servicing Fee;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the ServicerSecond, to the Collateral Custodian Custodian, in an amount equal to any accrued and unpaid Collateral Custodian Fee and out-of-pocket expenses owed to the Collateral Custodian Expenses, if any, for (such expenses not to exceed $50,000 per annum prior to the payment thereofoccurrence of a Termination Event);
(viiii) SIXTHThird, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its AffiliatesBackup Servicer, its the accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Backup Servicer Fee Limit Amount for such Settlement Period, for the payment thereof and out-of-pocket expenses and (B) otherwisethe Successor Servicer, its accrued and up to a maximum of $150,000 in unpaid Servicing Fees Transition Expense payable pursuant to the end of the preceding Settlement Period for the payment thereofSection 7.14(e);
(viiiv) SEVENTHFourth, to the Administrative Agent for the ratable payment to each Managing Agent, on behalf of the related Lenders, Lender in an amount equal to any accrued and unpaid (A) Interest on the Loans and Unused Fee (B) all other Aggregate Unpaids allocable to the Loans Outstanding (other than the principal amount of the Loans Outstanding) then due under this Agreement to the Administrative Agent, the Lenders, the Affected Parties or the Indemnified Parties, for such Payment Datethe payment thereof;
(viiiv) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest CollectionsFifth, to the Administrative Agent for the ratable payment to each Managing AgentLender, on behalf principal of the related Lenders, Loans in an amount equal to the excess, if any, amount by which the Loans Outstanding on the opening of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any business on such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Payment Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf Pool Balance as of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstandingthe last day of the related Collection Period;
(ixvi) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTHSixth, to the Administrative Agent for the ratable payment to each Managing AgentLender, on behalf principal of the Loans in an amount equal to the amount by which (a) the Loans Outstanding as of the last day of the related LendersCollection Period exceeds (b) the excess of (1) the Pool Balance as of the last day of such Collection Period over (2) the Target Overcollateralization Amount for such Payment Date; provided, in however, if such Payment Date is after the Termination Date, any remaining amount of unpaid Breakage Costs (other than Breakage Costs covered in clause until the Loans Outstanding have been reduced to zero;
(vii) above) with respect to any prepayments made on such Seventh, if the Final Scheduled Payment Date Increased Costsor the Termination Date has occurred, and/or Taxes to the Administrative Agent for the ratable payment to each Lender, (if any)A) principal of the Loans until the Loans Outstanding have been reduced to zero and (B) all other Aggregate Unpaids;
(xiviii) ELEVENTHEighth, to the Swingline LenderReserve Account, for the portion of amount necessary to cause the Obligations constituting unpaid principal of amount on deposit therein to equal the Swing AdvancesReserve Account Required Amount;
(ix) Ninth, to the Servicer, the Collateral Custodian, the Backup Servicer and any Successor Servicer, any fees, expenses or indemnities not paid pursuant to clauses (i) through (iii) above (whether as a result on the limitations on amounts set forth therein or otherwise); and
(x) Tenth, any remaining amount shall be distributed to the Borrower.
Appears in 1 contract
Settlement Procedures. On each Payment Date, the Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iiiii) THIRDSECOND, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iviii) FOURTHTHIRD, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(viv) FIFTHFOURTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(viv) SIXTHFIFTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(viivi) SEVENTHSIXTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest Interest, Program Fee, Commitment Fee and Unused Fee Revolver Loan Funding Fee, if any, for such Payment Date;
(viiivii) EIGHTHSEVENTH, first, to at any time during the extent of available Principal Collections, and second, to the extent of available Interest CollectionsRevolving Period, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;
Appears in 1 contract
Samples: Credit Agreement (Gladstone Investment Corporation\de)
Settlement Procedures. (a) On each Payment Date, the Servicer on behalf shall instruct the Paying Agent in writing to pay, or if an Event of Default shall have occurred and is continuing, the Borrower Administrative Agent shall pay for receipt by instruct the applicable Lender Paying Agent in writing to pay, no later than 11:00 a.m. (2:00 p.m., New York City time) , in each case, based solely on the information in the related Monthly Report, to the following Persons, from (i) the Collection Account, Account (to the extent of available funds, Available Funds) and from the Reserve Account (ii) Servicer Advances, and (iii) amounts received in respect the amount of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (irelated Reserve Account Withdrawal Amount), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During priority as set forth in the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal CollectionsMonthly Report:
(i) FIRSTFirst, to the BorrowerServicer, the aggregate amount of fees accrued and unpaid Servicing Fee (including up-front, continuing or success fees) received in respect of the Transferred Loansand any accrued and unpaid Servicing Fee from any prior Payment Date);
(ii) SECONDSecond, pro rata, based on amounts owing (A) to each Hedge Counterpartythe Borrower Loan Trustee, the sum of (1) the accrued and unpaid Borrower Loan Trustee Fee and (2) any out-of-pocket expenses and indemnities due to the Borrower Loan Trustee, which in the case of subclause (A)(2) shall not in the aggregate exceed $[***] in any calendar year, (B) to the Backup Servicer, the sum of (1) the accrued and unpaid Backup Servicing Fee and (2) any out-of-pocket expenses and indemnities (other than Transition Expenses) due to the Backup Servicer (including as Successor Servicer), which in the case of subclause (B)(2) shall not in the aggregate exceed $[***] in any calendar year, (C) to the Backup Servicer or other Successor Servicer, any amounts owing that Hedge Counterparty under its respective Hedging Agreement unpaid Transition Expenses (such Transition Expenses not to exceed $[***] in respect of any Hedge Transaction(sthe aggregate) payable pursuant to Section 7.12(d), for the payment thereof, but excluding, (D) to the extent Image File Custodian, the Hedge Counterparty is sum of (1) the accrued and unpaid Image File Custodian Fee and (2) any out-of-pocket expenses and indemnities due to the Image File Custodian, which in the case of subclause (D)(2) shall not in the same Person as aggregate exceed $[***] in any calendar year, and (E) to the Administrative Paying Agent, the Collateral Agent and the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Computershare), the sum of (1) the accrued and unpaid Paying Agent/Collateral Agent Fee payable to the Paying Agent and Collateral Agent and (2) any Swap Breakage out-of-pocket expenses and Indemnity Amountsindemnities due to the Paying Agent, Collateral Agent and the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Computershare), which in the case of this subclause (E)(2) shall not in the aggregate exceed $[***] in any calendar year;
(iii) THIRDThird, pro rata, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, each applicable Agent for the ratable payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, each Class A Lender in an amount equal to any accrued and unpaid Backup Servicing Fee and(1) Interest on the Class A Loans, if any, accrued (2) Breakage Costs relating to any Class A Loans and unpaid Transition Costs, Backup Servicer Expenses (3) all other Aggregate Unpaids allocable to the Loans Outstanding that are Class A Loans (other than the principal amount of the Loans Outstanding) then due under this Agreement to the Administrative Agent and Market Servicing Fee Differential, each the applicable Agents or Class A Lenders for the payment thereof, which in the case of subclauses (2) and (3) shall not exceed $[***] in any calendar year;
(iv) Fourth, (a) so long as a Facility Amortization Event or an Event of Default has occurred and is continuing on such Payment Date, based on amounts owing, to each applicable Agent for the ratable payment to each Class A Lender, any remaining Available Funds, until the Loans Outstanding that are Class A Loans are reduced to zero, and (b) so long as neither a Facility Amortization Event nor an Event of Default has occurred and is continuing on such Payment Date, based on amounts owing to each applicable Agent, for the ratable payment (by outstanding Principal Amount) to each Class A Lender, an amount equal to the Class A Monthly Principal Payment Amount;
(v) FIFTHFifth, to each applicable Agent for the extent not paid by the Servicer, ratable payment to the Collateral Custodian each Class B Lender in an amount equal to any accrued and unpaid Collateral Custodian Fee (1) Interest on the Class B Loans, (2) Breakage Costs relating to any Class B Loans and Collateral Custodian Expenses, if any, (3) all other Aggregate Unpaids allocable to the Loans Outstanding that are Class B Loans (other than the principal amount of the Loans Outstanding) then due under this Agreement to the applicable Agents or Lenders for the payment thereof, which in the case of subclauses (2) and (3) shall not exceed $[***] in any calendar year;
(vi) SIXTHSixth, (a) so long as a Facility Amortization Event or an Event of Default has occurred and is continuing on such Payment Date, based on amounts owing, to each applicable Agent for the Servicerratable payment to each Class B Lender, in any remaining Available Funds, until the Loans Outstanding that are Class B Loans are reduced to zero, and (b) so long as neither a Facility Amortization Event nor an Event of Default has occurred and is continuing on such Payment Date, based on amounts owing to each applicable Agent, for the ratable payment (by outstanding Principal Amount) to each Class B Lender, an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereofClass B Monthly Principal Payment Amount;
(vii) SEVENTHSeventh, if such Payment Date occurs during the Revolving Period, to the Administrative Reserve Account, the amount necessary to cause the amount on deposit therein to equal the Reserve Account Required Amount;
(viii) Eighth, if such Payment Date does not occur during the Revolving Period and neither a Facility Amortization Event nor an Event of Default has occurred and is continuing on such Payment Date, (x) if such Payment Date is one of the first three (3) Payment Dates after the Scheduled Amortization Date or, if the Scheduled Amortization Date occurs on a Payment Date, such Payment Date is one of the first two (2) Payment Dates after the Scheduled Amortization Date, fifty (50) percent of the remaining Available Funds shall be paid (A) first, to each applicable Agent for the ratable payment to each Managing AgentClass A Lender, on behalf until the Loans Outstanding that are Class A Loans are reduced to zero, and (B) second, to each applicable Agent for the ratable payment to each Class B Lender, until the Loans Outstanding that are Class B Loans are reduced to zero, (y) if such Payment Date is not one of the related Lendersfirst three (3) Payment Dates on or after the Scheduled Amortization Date or, if the Scheduled Amortization Date occurs on a Payment Date, such Payment Date is not one of the first two (2) Payment Dates after the Scheduled Amortization Date, any remaining Available Funds (A) first, to each applicable Agent for the ratable payment to each Class A Lender, until the Loans Outstanding that are Class A Loans are reduced to zero, and (B) second, to each applicable Agent for the ratable payment to each Class B Lender, until the Loans Outstanding that are Class B Loans are reduced to zero;
(ix) Ninth, to each applicable Agent for the ratable payment to each Class A Lender in an amount equal to any accrued and unpaid Interest Breakage Costs and Unused Fee for such Payment Dateother Aggregate Unpaids due to the Class A Lenders and not paid pursuant to clause (iii) above;
(viiix) EIGHTH, firstTenth, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative each applicable Agent for the ratable payment to each Managing Agent, on behalf of the related Lenders, Class B Lender in an amount equal to any accrued and unpaid Breakage Costs and other Aggregate Unpaids due to the excessClass B Committed Lenders and not paid pursuant to clause (v) above;
(xi) Eleventh, if anyall other Aggregate Unpaids (other than the principal amount of the Loans Outstanding) then due under this Agreement to the Affected Parties or the Indemnified Parties, of Advances Outstanding over for the lesser of payment thereof;
(xii) Twelfth, pro rata, based on amounts owing to the Backup Servicer, the Servicer, the Collateral Agent, the Image File Custodian, the Paying Agent, the Borrower Loan Trustee and the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Computershare), any fees, expenses, indemnities and Transition Expenses not paid pursuant to clauses (i) the Borrowing Base or (ii) above, as applicable; and
(xiii) Thirteenth, so long as no Unmatured Event of Default has occurred and is then continuing, any amount remaining in the Facility Amount, together with the amount of Breakage Costs incurred Collection Account shall be distributed to an account designated by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rataBorrower; provided, however, that during the occurrence and continuance of an Unmatured Event of Default, any remaining amounts shall remain in the Collection Account, or, at the election of the Borrower in its sole discretion be used (A) to prepay any Class A Loans and Class B Loans, on a pro rata basis or (B) to purchase additional Receivables in accordance with Section 2.11(f).
(b) For the extent avoidance of doubt, it is hereby agreed that (i) accrued and unpaid fees, expenses and indemnities payable to the Termination Date has Collateral Agent, the Paying Agent, the Image File Custodian, the Backup Servicer (including in its capacity as Successor Servicer), the Borrower Loan Trustee or the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Computershare) in excess of the aggregate annual maximum amount for any year (as set forth in Section 2.08(a)(ii)) and not occurred paid pursuant to Section 2.08(a)(xii) shall be reimbursable in subsequent years in the same order of priority and subject to the same limitations as set forth above until paid in full, and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, caps set forth in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) aboveSection 2.08(a)(ii) with respect to any prepayments made on such Payment Date Increased Coststhe out-of-pocket expenses, and/or Taxes (if any);
(xi) ELEVENTHfees, to the Swingline Lender, for the portion losses and indemnities of the Obligations constituting unpaid principal Collateral Agent, the Paying Agent, the Backup Servicer, the Image File Custodian, the Borrower Loan Trustee and the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Computershare) shall not be applicable upon the occurrence and during the continuance of any Event of Default. In making the Swing Advances;payments required under this Section 2.08, the Paying Agent shall have no duty to make any determination, calculation or verification regarding any amounts to be paid or the recipients of such amounts, and shall be entitled to rely exclusively and conclusively on the related Monthly Report.
Appears in 1 contract
Settlement Procedures. On each Payment Date, the Servicer on behalf of the Borrower shall pay pay, for receipt by the applicable Lender no later than 11:00 a.m. 1:00 p.m. (New York, New York City time) ), to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
: (i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
; (ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
; (iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
; (iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
; (v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
; (vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;61
Appears in 1 contract
Samples: Credit Agreement (Gladstone Investment Corporation\de)
Settlement Procedures. (a) On each Payment Date, so long as no Event of Default has occurred and is continuing, the Servicer on behalf of InvestmentCollateral Manager shall direct the Borrower Collateral Custodian (which direction shall pay for be deemed given upon receipt by the applicable Lender no later than 11:00 a.m. Collateral Custodian of the related Reporting Date Report) to pay pursuant to the latest Reporting Date Report (New York City timeand the Collateral Custodian shall make payment from the Interest Collection Account to the extent of Available Funds, in reliance on the information set forth in such Reporting Date Report) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a1) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian and the Securities Intermediary pro rata, in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereofFees;
(vi2) SIXTHto the Hedge Counterparty, the aggregate net amount then due and payable to the Hedge Counterparty under each applicable Hedging Agreement (excluding Hedge Breakage Costs); [Investcorp] Loan and Security Agreement
(3) to the InvestmentCollateral Manager (including, for avoidance of doubt, the Replacement Servicer, if applicable), first, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or pay any of its Affiliates, its accrued and unpaid Servicing InvestmentCollateral Management Fees and, second, to the end pay all documented fees and expenses of the preceding Settlement PeriodInvestmentCollateral Manager (including, up without limitation, reasonable attorney’s fees, costs and expenses) in an aggregate amount with respect to such documented fees and expenses in any rolling 12-month period not greater than the Servicing Fee Limit Amount for such Settlement Period, for greater of (i) 0.20% of the payment thereof aggregate outstanding principal value of all Eligible Loans and (Bii) $250,000; provided that so long as CM Investment Partners LLC is InvestmentCollateral Manager, such fee shall be waived until such time as IM directs the Custodian otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii4) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest fees, expenses and Unused Fee for such Payment Dateindemnities set forth in the Transaction Documents;
(viii5) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to be distributed pro rata to each Managing AgentLender, on behalf of the related Lenders, in an amount equal to (a) any accrued and unpaid Interest with respect to Advances made by such Lender, (b) any accrued and unpaid Non-Usage Fee (such Non-Usage Fee to be allocated based on the excessunused Commitment of each Lender) and (c) any accrued and unpaid Breakage Costs;
(6) to the Hedge Counterparty, any other amounts (including any Hedge Breakage Costs) incurred by the Hedge Counterparty under the applicable Hedging Agreement then due and payable, net of any amounts then due and payable to the Borrower under such applicable Hedging Agreement;
(7) to the Administrative Agent to be distributed pro rata to each Lender, in an amount equal to, if anythe Facility Amount has been terminated in whole pursuant to Section 2.3(c), the Advances Outstanding;
(8) to the Administrative Agent, to be distributed to the Administrative Agent and each applicable Lender, to pay all other Administrative Expenses of Advances Outstanding over the lesser of Administrative Agent and the Lenders;
(i9) to the Administrative Agent to be distributed pro rata to each Lender, if a Borrowing Base Deficiency exists, an amount necessary to reduce the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified Deficiency to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders onlyzero, pro rata in accordance with their the amount of Advances Outstanding hereunder;
(a) during the Revolving Period, to fund the Unfunded Exposure Account in an amount necessary to cause all amounts in the Unfunded Exposure Account to equal the Aggregate Unfunded Exposure Equity Amount, or (b) after the Revolving Period, to fund the Unfunded Exposure Account in an amount necessary to cause the amounts in the Unfunded Exposure Account to equal the Aggregate Unfunded Exposure Amount;
(11) to the Administrative Agent to be distributed to the Administrative Agent, any applicable Lender, the Collateral Custodian and the [Investcorp] Loan and Security Agreement Securities Intermediary, the Indemnified Parties, or the Secured Parties, as applicable, all other amounts then due and owing, including, without limitation, any unpaid Administrative Expenses, any amounts accrued and unpaid under the Fee Letter, Increased Costs, Taxes, indemnities, but other than the principal of Advances Outstanding, then due under this Agreement; and
(12) any remaining amounts shall be distributed to the Borrower or any nominee thereof, which amounts may be used by the Borrower to make Restricted Payments.
(b) On each Payment Date, so long as no Event of Default has occurred and is continuing, the InvestmentCollateral Manager shall direct (which direction shall be deemed given upon receipt by the Collateral Custodian of the related Reporting Date Report) the Collateral Custodian to pay pursuant to the latest Reporting Date Report (and the Collateral Custodian shall make payment from the Principal Collection Account to the extent of Available Funds, in reliance on the information set forth in such Reporting Date Report) to the following Persons, the following amounts in the following order of priority:
(1) to the extent not paid pursuant to Section 2.7(a), to the Collateral Custodian and the Securities Intermediary, pro rata, in an amount equal to any accrued and unpaid Collateral Custodian Fees;
(2) to the extent not paid pursuant to Section 2.7(a), to the Hedge Counterparty, the aggregate net unpaid amount then due and payable to the Hedge Counterparty under each applicable Hedging Agreement (excluding Hedge Breakage Costs);
(3) to the extent not paid pursuant to Section 2.7(a), to the InvestmentCollateral Manager, in an amount equal to any accrued and unpaid InvestmentCollateral Management Fees;
(4) to the extent not paid pursuant to Section 2.7(a), to the Administrative Agent, in an amount equal to any accrued and unpaid fees, expenses and indemnities set forth in the Transaction Documents;
(5) to the extent not paid pursuant to Section 2.7(a), to the Administrative Agent to be distributed pro rata to each Lender, in an amount equal to (a) any accrued and unpaid Interest with respect to Advances made by such Xxxxxx, (b) any accrued and unpaid Non-Usage Fee (such Non-Usage Fee to be allocated based on the unused Commitment of each Lender) and (c) any accrued and unpaid Breakage Costs;
(6) to the extent not paid pursuant to Section 2.7(a), to the Hedge Counterparty, any other unpaid amounts (including any Hedge Breakage Costs) incurred by the Hedge Counterparty under the applicable Hedging Agreement then due and payable, net of any amounts then due and payable to the Borrower under such applicable Hedging Agreement; [Investcorp] Loan and Security Agreement
(7) to the extent not paid pursuant to Section 2.7(a), to the Administrative Agent to be distributed pro rata to each Lender, in an amount equal to if the Facility Amount has been terminated in whole pursuant to Section 2.3(c), the Advances Outstanding;
(ix) NINTH8) to the extent not paid pursuant to Section 2.7(a), to the Administrative Agent, to be distributed to the Administrative Agent and each Hedge Counterpartyapplicable Lender, any Swap Breakage to pay all other Administrative Expenses of the Administrative Agent and Indemnity Amounts owing that Hedge Counterpartythe Lenders;
(9) (x) TENTHduring the Revolving Period, to fund the Unfunded Exposure Account in an amount necessary to cause all amounts in the Unfunded Exposure Account to equal the Aggregate Unfunded Exposure Equity Amount, or (y) after the Revolving Period, to fund the Unfunded Exposure Account in an amount necessary to cause the amounts in the Unfunded Exposure Account to equal the Aggregate Unfunded Exposure Amount;
(10) (a) during the Revolving Period, to the extent not paid pursuant to Section 2.7(a), to the Administrative Agent for payment to be distributed pro rata to each Managing AgentLender, on behalf of if a Borrowing Base Deficiency exists, an amount necessary to reduce the related LendersBorrowing Base Deficiency to zero, pro rata in accordance with the amount of Advances Outstanding hereunder and (b) after the end of the Revolving Period, to the Lenders to pay the Advances Outstanding;
(11) to the extent not paid pursuant to Section 2.7(a), to the Administrative Agent to be distributed pro rata to the Administrative Agent, any applicable Lender, the Collateral Custodian, the Securities Intermediary, the Indemnified Parties, or the Secured Parties, all other amounts, including, without limitation, any unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to Administrative Expenses, any prepayments made on such Payment Date amounts accrued and unpaid under the Fee Letter, any Increased Costs, and/or Taxes (if any);Taxes, indemnities and fees or expenses of counsel, but other than the principal of Advances Outstanding, then due under this Agreement; and
(xi12) ELEVENTHany remaining amounts shall be distributed to the Borrower or any nominee thereof, which amounts may be used by the Borrower to make Restricted Payments, provided, that Xxxxxxxx shall first reimburse the InvestmentCollateral Manager for any unreimbursed amounts paid by the InvestmentCollateral Manager on the Borrower’s behalf pursuant to this Agreement, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;extent not otherwise reimbursed hereunder.
Appears in 1 contract
Samples: Loan, Security and Investment Management Agreement (Investcorp Credit Management BDC, Inc.)
Settlement Procedures. (a) On each Payment Date, so long as no Event of Default has occurred and is continuing, the Servicer on behalf of Investment Manager shall direct the Borrower Collateral Custodian (which direction shall pay for be deemed given upon receipt by the applicable Lender no later than 11:00 a.m. Collateral Custodian of the related Reporting Date Report) to pay pursuant to the latest Reporting Date Report (New York City timeand the Collateral Custodian shall make payment from the Interest Collection Account to the extent of Available Funds, in reliance on the information set forth in such Reporting Date Report) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a1) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian and the Securities Intermediary pro rata, in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereofFees;
(vi2) SIXTHto the Hedge Counterparty, the aggregate net amount then due and payable to the Hedge Counterparty under each applicable Hedging Agreement (excluding Hedge Breakage Costs);
(3) to the Investment Manager (including, for avoidance of doubt, the Replacement Servicer, if applicable), first, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or pay any of its Affiliates, its accrued and unpaid Servicing Investment Management Fees and, second, to the end pay all documented fees and expenses of the preceding Settlement PeriodInvestment Manager (including, up without limitation, reasonable attorney’s fees, costs and expenses) in an aggregate amount with respect to such documented fees and expenses in any rolling 12-month period not greater than the Servicing Fee Limit Amount for such Settlement Period, for greater of (i) 0.20% of the payment thereof aggregate outstanding principal value of all Eligible Loans and (Bii) $250,000; provided that so long as CM Investment Partners LLC is Investment Manager, such fee shall be waived until such time as IM directs the Custodian otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii4) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest fees, expenses and Unused Fee for such Payment Dateindemnities set forth in the Transaction Documents;
(viii5) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to be distributed pro rata to each Managing AgentLender, on behalf of the related Lenders, in an amount equal to (a) any accrued and unpaid Interest with respect to Advances made by such Lender, (b) any accrued and unpaid Non-Usage Fee (such Non-Usage Fee to be allocated based on the excessunused Commitment of each Lender) and (c) any accrued and unpaid Breakage Costs;
(6) to the Hedge Counterparty, any other amounts (including any Hedge Breakage Costs) incurred by the Hedge Counterparty under the applicable Hedging Agreement then due and payable, net of any amounts then due and payable to the Borrower under such applicable Hedging Agreement;
(7) to the Administrative Agent to be distributed pro rata to each Lender, in an amount equal to, if anythe Facility Amount has been terminated in whole pursuant to Section 2.3(c), the Advances Outstanding;
(8) to the Administrative Agent, to be distributed to the Administrative Agent and each applicable Lender, to pay all other Administrative Expenses of Advances Outstanding over the lesser of Administrative Agent and the Lenders;
(i9) to the Administrative Agent to be distributed pro rata to each Lender, if a Borrowing Base Deficiency exists, an amount necessary to reduce the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified Deficiency to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders onlyzero, pro rata in accordance with their the amount of Advances Outstanding hereunder;
(10) (a) during the Revolving Period, to fund the Unfunded Exposure Account in an amount necessary to cause all amounts in the Unfunded Exposure Account to equal the Aggregate Unfunded Exposure Equity Amount, or (b) after the Revolving Period, to fund the Unfunded Exposure Account in an amount necessary to cause the amounts in the Unfunded Exposure Account to equal the Aggregate Unfunded Exposure Amount;
(11) to the Administrative Agent to be distributed to the Administrative Agent, any applicable Lender, the Collateral Custodian and the Securities Intermediary, the Indemnified Parties, or the Secured Parties, as applicable, all other amounts then due and owing, including, without limitation, any unpaid Administrative Expenses, any amounts accrued and unpaid under the Fee Letter, Increased Costs, Taxes, indemnities, but other than the principal of Advances Outstanding, then due under this Agreement;
(12) any remaining amounts shall be distributed to the Borrower or any nominee thereof, which amounts may be used by the Borrower to make Restricted Payments.
(b) On each Payment Date, so long as no Event of Default has occurred and is continuing, the Investment Manager shall direct (which direction shall be deemed given upon receipt by the Collateral Custodian of the related Reporting Date Report) the Collateral Custodian to pay pursuant to the latest Reporting Date Report (and the Collateral Custodian shall make payment from the Principal Collection Account to the extent of Available Funds, in reliance on the information set forth in such Reporting Date Report) to the following Persons, the following amounts in the following order of priority:
(1) to the extent not paid pursuant to Section 2.7(a), to the Collateral Custodian and the Securities Intermediary, pro rata, in an amount equal to any accrued and unpaid Collateral Custodian Fees;
(2) to the extent not paid pursuant to Section 2.7(a), to the Hedge Counterparty, the aggregate net unpaid amount then due and payable to the Hedge Counterparty under each applicable Hedging Agreement (excluding Hedge Breakage Costs);
(3) to the extent not paid pursuant to Section 2.7(a), to the Investment Manager, in an amount equal to any accrued and unpaid Investment Management Fees;
(4) to the extent not paid pursuant to Section 2.7(a), to the Administrative Agent, in an amount equal to any accrued and unpaid fees, expenses and indemnities set forth in the Transaction Documents;
(5) to the extent not paid pursuant to Section 2.7(a), to the Administrative Agent to be distributed pro rata to each Lender, in an amount equal to (a) any accrued and unpaid Interest with respect to Advances made by such Lender, (b) any accrued and unpaid Non-Usage Fee (such Non-Usage Fee to be allocated based on the unused Commitment of each Lender) and (c) any accrued and unpaid Breakage Costs;
(6) to the extent not paid pursuant to Section 2.7(a), to the Hedge Counterparty, any other unpaid amounts (including any Hedge Breakage Costs) incurred by the Hedge Counterparty under the applicable Hedging Agreement then due and payable, net of any amounts then due and payable to the Borrower under such applicable Hedging Agreement;
(7) to the extent not paid pursuant to Section 2.7(a), to the Administrative Agent to be distributed pro rata to each Lender, in an amount equal to if the Facility Amount has been terminated in whole pursuant to Section 2.3(c), the Advances Outstanding;
(ix) NINTH8) to the extent not paid pursuant to Section 2.7(a), to the Administrative Agent, to be distributed to the Administrative Agent and each Hedge Counterpartyapplicable Lender, any Swap Breakage to pay all other Administrative Expenses of the Administrative Agent and Indemnity Amounts owing that Hedge Counterpartythe Lenders;
(9) (x) TENTHduring the Revolving Period, to fund the Unfunded Exposure Account in an amount necessary to cause all amounts in the Unfunded Exposure Account to equal the Aggregate Unfunded Exposure Equity Amount, or (y) after the Revolving Period, to fund the Unfunded Exposure Account in an amount necessary to cause the amounts in the Unfunded Exposure Account to equal the Aggregate Unfunded Exposure Amount;
(10) (a) during the Revolving Period, to the extent not paid pursuant to Section 2.7(a), to the Administrative Agent for payment to be distributed pro rata to each Managing AgentLender, on behalf of if a Borrowing Base Deficiency exists, an amount necessary to reduce the related LendersBorrowing Base Deficiency to zero, pro rata in accordance with the amount of Advances Outstanding hereunder and (b) after the end of the Revolving Period, to the Lenders to pay the Advances Outstanding;
(11) to the extent not paid pursuant to Section 2.7(a), to the Administrative Agent to be distributed pro rata to the Administrative Agent, any applicable Lender, the Collateral Custodian, the Securities Intermediary, the Indemnified Parties, or the Secured Parties, all other amounts, including, without limitation, any unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to Administrative Expenses, any prepayments made on such Payment Date amounts accrued and unpaid under the Fee Letter, any Increased Costs, and/or Taxes (if any);Taxes, indemnities and fees or expenses of counsel, but other than the principal of Advances Outstanding, then due under this Agreement; and
(xi12) ELEVENTHany remaining amounts shall be distributed to the Borrower or any nominee thereof, which amounts may be used by the Borrower to make Restricted Payments, provided, that Borrower shall first reimburse the Investment Manager for any unreimbursed amounts paid by the Investment Manager on the Borrower’s behalf pursuant to this Agreement, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;extent not otherwise reimbursed hereunder.
Appears in 1 contract
Samples: Loan, Security and Investment Management Agreement (Investcorp Credit Management BDC, Inc.)
Settlement Procedures. On each Payment Date, the Servicer on behalf of shall instruct the Borrower shall Account Bank to pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) the Collection Account, Account to the extent of available fundsAvailable Funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During , as set forth in the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal CollectionsMonthly Report:
(i) FIRSTFirst, pro rata, (A) to the Servicer, the accrued and unpaid Servicing Fee and, to the Borrowerextent not previously retained by the Servicer, all ancillary fees, including late fees, extension fees, administrative fees or similar charges allowed by Applicable Law and (B) to the Owner Trustee, the aggregate amount of fees (including up-frontaccrued and unpaid fees, continuing or success fees) received in respect costs and expenses and any other amounts not otherwise paid which are payable to the Owner Trustee under Article VII of the Transferred LoansTrust Agreement, in an amount not to exceed $[***] per annum;
(ii) SECONDSecond, pro rata, (A) to the extent not paid for by UACC, to each Hedge Counterpartythe Backup Servicer, so long as the Backup Servicer has not been appointed to serve as successor to the Servicer hereunder, the accrued and unpaid Backup Servicing Fee to the Backup Servicer, its accrued and unpaid expenses and indemnities (which expenses and indemnities prior to the occurrence of a Termination Event shall not exceed $[***] per annum), and any Transition Expenses not paid for by the predecessor Servicer pursuant to Section 7.15(e), (B) to the Account Bank, an amount equal to any accrued and unpaid Account Bank Fee, together with its accrued and unpaid expenses and indemnities (which expenses and indemnities prior to the occurrence of a Termination Event shall not exceed $[***] per annum), and (C) to the extent not previously paid, to the E-Vault Provider, any amounts unpaid fees and expenses due and owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for Electronic Contracts maintained in the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity AmountsWarehouse Vault Partition;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTHThird, to the extent not paid for by the ServicerUACC, to the Backup Servicer Custodian (if not UACC), the accrued and unpaid Custodian Fee and any Successor Serviceraccrued and unpaid expenses and indemnities;
(iv) Fourth, as applicable, (A) to the Administrative Agent for the ratable payment to each Lender in an amount equal to any accrued and unpaid Backup Servicing Fee and(1) Interest on the Loans (plus the Unused Fee), if any(2) Breakage Costs relating to any Loans and (3) all other Aggregate Unpaids allocable to the Loans Outstanding (other than the Principal Amount of the Loans Outstanding) then due under this Agreement to the Administrative Agent, accrued and unpaid Transition Coststhe Lenders, Backup Servicer Expenses and Market Servicing Fee Differentialthe Affected Parties or the Indemnified Parties, each for the payment thereof;
, (vB) FIFTHto the Hedge Counterparty, (1) any payments required under any Hedge Agreement and (2) any Hedge Breakage Costs due but not paid and (C) to the Successor Servicer, any unpaid Transition Expenses payable pursuant to Section 7.15(e), to the extent not paid by the Servicerpursuant to clause (ii) above;
(v) Fifth, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, Administrative Agent for the ratable payment thereof;
(vi) SIXTH, to the Servicereach Lender, in an amount equal to the Monthly Principal Payment Amount;
(vi) Sixth, if (A) if the Servicer is Gladstone Management Corporation Facility Turbo Date or any of its Affiliatesa Foreclosure Event has occurred, its accrued the remaining Available Funds to reduce the Loans Outstanding and unpaid Servicing Fees all other Aggregate Unpaids to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and zero or (B) otherwisea Partial Expiration Event has occurred, its accrued and unpaid Servicing Fees the remaining funds to reduce pro rata the end portion of the preceding Settlement Period for Loans Outstanding constituting the payment thereofLender Advances of any Non-Extending Lender, to zero;
(vii) SEVENTHSeventh, prior to the occurrence of the Termination Date, to the Administrative Agent for payment Reserve Account, the amount necessary to each Managing Agent, cause the amount on behalf of deposit therein to equal the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment DateReserve Account Required Amount;
(viii) EIGHTH, firstEighth, to the extent of available Principal CollectionsServicer, the Owner Trustee, the Backup Servicer, the Custodian (if other than UACC), the Account Bank and secondany Successor Servicer, any fees, expenses and indemnities not paid pursuant to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of clauses (i) the Borrowing Base or through (iiiv) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rataabove; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;and
(ix) NINTH, to each Hedge CounterpartyNinth, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, remaining amount shall be distributed to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;Borrower.
Appears in 1 contract
Samples: Warehouse Agreement (Vroom, Inc.)
Settlement Procedures. On each Payment Date, (a) The collection of the Pool Receivables shall be administered by the Servicer on behalf of the Borrower shall pay for receipt by the in accordance with this Agreement and applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) the Collection Accountregulatory law. The Seller shall, to the extent that it is in possession thereof, or can reasonably obtain it, provide to the Servicer on a timely basis all information needed for such administration, including notice of available funds, (ii) Servicer Advances, and (iii) amounts received in respect the occurrence of any Hedge Agreement during such Settlement Period (Termination Day and current computations of the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:Purchased Interest.
(ab) During The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal CollectionsSeller or the Servicer:
(i) FIRSTset aside and hold in trust (and shall, to at the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect request of the Transferred Loans;
(iiAdministrator, segregate in a separate account approved by the Administrator) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereofbenefit of each Purchaser Group, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any out of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTHCollections, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excessAggregate Discount accrued through such day for each Portion of Capital and not previously set aside, if anysecond, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the aggregate of Advances Outstanding over each Purchasers’ Share of the lesser of (i) the Borrowing Base or Servicing Fee accrued through such day and not previously set aside,
(ii) the Facility Amountsubject to Section 1.4(f), together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any if such payment (as such Breakage Costs are notified day is not a Termination Day, remit to the Borrower by Seller, ratably, on behalf of each Purchaser Group, the applicable Lender(s))remainder of such Collections. Such remainder shall, pro ratato the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers) on the next Settlement Date in accordance with Section 1.4(c); provided, further, that (x) in the case of any Purchaser that is a Conduit Purchaser, if such Conduit Purchaser has provided notice (a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Conduit Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser with respect to which the Purchaser Termination Date has occurred (an “Exiting Purchaser”) then in either case (x) or (y), above, such Collections shall not be reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii), below.
(iii) if such day is a Termination Day or a day on which the conditions set forth in Section 2 of Exhibit II to this Agreement are not satisfied (or any day following the provision of a Declining Notice or the occurrence of the Purchaser Termination Date with respect to any Purchaser), set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser an amount equal to such Declining Conduit Purchaser’s or Exiting Purchaser’s ratable share of such Collections based on its Capital; provided, that solely for the purpose of determining such Declining Conduit Purchaser’s or Exiting Purchaser’s ratable share of such Collections, such Declining Conduit Purchaser’s or Exiting Purchaser’s Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or the occurrence of the Purchaser Termination Date with respect to such Purchaser, as the case may be, until the date such Declining Conduit Purchaser’s or Exiting Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day or a day on which the conditions set forth in Section 2 of Exhibit II to this Agreement are not satisfied, such Declining Conduit Purchaser’s or Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day or any day on which the conditions set forth in Section 2 of Exhibit II to this Agreement are not satisfied (or any day following the provision of a Declining Notice or the occurrence of the Purchaser Termination Date with respect to any Purchaser) and, thereafter, the conditions set forth in Section 2 of Exhibit II or giving rise to the related Facility Termination Date are satisfied or cured or waived by the Majority Purchaser Agents (or in the case of a Declining Notice or the occurrence of the Purchaser Termination Date with respect to any Purchaser, such Declining Notice or occurrence of the Purchaser Termination Date with respect to such Purchaser, as the case may be, has been revoked by the related Declining Conduit Purchaser or waived by the related Exiting Purchaser, as the case may be, and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Capital (or the Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably in accordance with each Purchaser’s Capital, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction, cure or waiver of conditions or revocation of Declining Notice or waiver of such Purchaser Termination Date, as the case may be, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into each applicable Purchaser Agent’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date in the case of Collections held for each Purchaser with respect to such Purchaser’s Portion(s) of Capital pursuant to clause (b)(i) or paragraph (f), plus the amount of Collections then held for the related Purchasers pursuant to clauses (b)(ii) and (iii) of this Section 1.4; provided, that if CB or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified CB (or such Affiliate) that such right is revoked, CB (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the aggregate of each Purchasers’ Share of the Servicing Fee.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to each Purchaser Agent ratably according to the Discount accrued during the Yield Period ending on the Settlement Date on which such Discount is distributed (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and Fees (other than Servicing Fees) with respect to each Portion of Capital maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount, and second, if the Servicer has set aside amounts in respect of the Purchasers’ Share of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to paragraph (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day on which the conditions set forth in Section 2 of Exhibit II to this Agreement are not satisfied or on a day when the Purchased Interest exceeds 100%, first if CB or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second to each Purchaser Agent ratably (based on the aggregate accrued and unpaid Discount payable to all Purchasers at such time) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third to each Purchaser Agent ratably according to the aggregate of the Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the first and second clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Discount and Capital, respectively, fourth, if the Aggregate Capital and accrued Aggregate Discount with respect to each Portion of Capital for all Purchaser Groups have been reduced to zero, and the Purchasers’ Share of all accrued Servicing Fees payable to the Servicer (if other than CB or an Affiliate thereof) have been paid in full, to each Purchaser Group ratably, based on the amounts then due and payable to each (for the benefit of the Purchasers within such Purchaser Group), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts then due and payable thereto by the Seller or Servicer hereunder and, fifth, to the Servicer’s own account (if the Servicer is CB or an Affiliate thereof) in payment in full of the aggregate of the Purchasers’ Share of all accrued Servicing Fees. After the then due and payable Aggregate Capital, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts then due and payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected or returned goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor (except any such revision, cancellation, allowance, discount or other adjustment made in settlement of such Pool Receivable resulting from the financial inability of the applicable Obligor to pay such Pool Receivable and, in the case of all Pool Receivables (other than Lebanon Receivables), made in accordance with the Credit and Collection Policies), the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and shall immediately pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4;
(ii) if on any day it is determined that any of the representations or warranties in Sections 1(j) or 3(a) of Exhibit III was (and at the time of such determination remains) untrue with respect to any Pool Receivable at the time a Purchase was made with respect to such Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full and shall immediately pay any and all such amounts to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to this Section 1.4 (Collections deemed to have been received pursuant to clause (i) or (ii) of this paragraph (e) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) except as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in a manner consistent with the application and allocation procedures employed by the Servicer at such time; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital) the Seller may do so as follows:
(i) the Termination Date has not occurred Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex E (each, a “Paydown Notice”) at least two Business Days prior to the date of such reduction and each such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) Advances Outstanding exceed on the Facility Amount due proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to one or more Lenders becoming Non-Renewing Lendersbe reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Capital, for payment to each Managing such Purchaser (or its related Purchaser Agent on behalf for the benefit of such Non-Renewing Lenders onlyPurchaser) on the next Settlement Date (or such other date as agreed to by the Administrator) with respect to any Portions of Capital maintained by such Purchaser immediately following the related current Yield Period, and the Aggregate Capital (together with the Capital of any related Purchaser) shall be deemed reduced in the amount to be paid to such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) only when in fact finally so paid; provided, that the amount of any such reduction shall be not less than $200,000 (to be applied pro rata in accordance with their Advances Outstanding;
(ixthe Aggregate Capital outstanding) NINTH, and the entire Aggregate Capital after giving effect to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other such reduction shall be not less than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;$20,000,000.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Cincinnati Bell Inc)
Settlement Procedures. On each Payment Date, the Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below ) being the “Available Collections”) the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iiiii) THIRDSECOND, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iviii) FOURTHTHIRD, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(viv) FIFTHFOURTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(viv) SIXTHFIFTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(viivi) SEVENTHSIXTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest Interest, Program Fee and Unused Liquidity Commitment Fee for such Payment Date;
(viiivii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest CollectionsSEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;
Appears in 1 contract
Settlement Procedures. (a) On each Payment Date, the Servicer on behalf shall instruct the Account Bank in writing to pay, or if an Event of Default shall have occurred and is continuing, the Borrower Administrative Agent shall pay for receipt by instruct the applicable Lender Account Bank in writing to pay, no later than 11:00 a.m. (12:00 p.m., New York City time) , in each case, based solely on the information in the related Monthly Report, to the following Persons, from (i) the Collection Account, Account (to the extent of available funds, Available Funds) and from the Reserve Account (ii) Servicer Advances, and (iii) amounts received in respect the amount of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (irelated Reserve Account Withdrawal Amount), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During priority as set forth in the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal CollectionsMonthly Report:
(i) FIRSTFirst, to the Borrowerpro rata, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any based on amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iiiA) THIRD, to the Servicer, the accrued and unpaid Servicing Fee, (B) to the Backup Servicer, the sum of (1) the accrued and unpaid Backup Servicing Fee and (2) any out-of-pocket expenses and indemnities due to the Backup Servicer, which in an amount equal the case of subclause (B)(2) shall not in the aggregate exceed $25,000 in any calendar year, (C) to the Successor Servicer, any Unreimbursed Servicer Advancesunpaid Transition Expenses (such Transition Expenses not to exceed $250,000 in the aggregate) payable pursuant to Section 7.14(d), for (D) to the payment thereof;
Account Bank and the Third Party Allocation Agent (ivso long as such Third Party Allocation Agent is Xxxxx Fargo Bank), the sum of (1) FOURTHthe accrued and unpaid Account Bank Fee payable to the Account Bank and (2) any out-of-pocket expenses and indemnities due to the Account Bank and the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Xxxxx Fargo Bank), which in the case of subclause (D)(2) shall not in the aggregate exceed $25,000 in any calendar year, and (E) to the 2017-1A SUBI Trustee, to the extent not paid by the Initial Beneficiary or the Servicer, any accrued and unpaid fees, out-of-pocket expenses and indemnities due to the Backup Servicer 2017-1A SUBI Trustee under the 2017-1A SUBI Supplement, which in the case of subclause (E) shall not in the aggregate exceed $25,000 in any calendar year;
(ii) Second, pro rata, based on amounts owing (A) to any Hedge Counterparty, any net payments due and any Successor Servicerpayable by the Borrower under the related Hedging Agreement other than Hedge Breakage Costs, as applicable, and (B) to each applicable Agent for the ratable payment to each Class A Lender in an amount equal to any accrued and unpaid Backup Servicing Fee and(1) Senior Interest on the Class A Loans, if any, accrued (2) Breakage Costs relating to any Class A Loans and unpaid Transition Costs, Backup Servicer Expenses (3) all other Aggregate Unpaids allocable to the Loans Outstanding that are Class A Loans (other than the principal amount of the Loans Outstanding and Market Servicing Fee Differential, each any related Subordinate Interest) then due under this Agreement to the Administrative Agent and the applicable Agents or Class A Lenders for the payment thereof, which in the case of subclauses (2) and (3) (excluding any unpaid Senior Interest due on the Class A Loans prior to such Payment Date) shall not exceed $50,000 in any calendar year;
(viii) FIFTHThird, to each applicable Agent for the extent not paid by the Servicer, ratable payment to the Collateral Custodian each Class B Lender in an amount equal to any accrued and unpaid Collateral Custodian Fee (1) Senior Interest on the Class B Loans, (2) Breakage Costs relating to any Class B Loans and Collateral Custodian Expenses, if any, (3) all other Aggregate Unpaids allocable to the Loans Outstanding that are Class B Loans (other than the principal amount of the Loans Outstanding and any related Subordinate Interest) then due under this Agreement to the applicable Agents or Lenders for the payment thereof, which in the case of subclauses (2) and (3) (excluding any unpaid Senior Interest due on the Class B Loans prior to such Payment Date) shall not exceed $50,000 in any calendar year;
(iv) Fourth, based on amounts owing (A) first, to each applicable Agent, for the ratable payment (by outstanding Principal Amount) to each Class A Lender, an amount equal to the Class A Monthly Principal Payment Amount, (B) second, to each applicable Agent, for the ratable payment (by outstanding Principal Amount) to each Class B Lender, an amount equal to the Class B Monthly Principal Payment Amount; and (C) third, to any Hedge Counterparty, any Senior Hedge Breakage Costs;
(v) Fifth, prior to the Revolving Period Termination Date, to the Reserve Account, the amount necessary to cause the amount on deposit therein to equal the Reserve Account Required Amount
(vi) SIXTHSixth, to if the ServicerRevolving Period Termination Date has occurred, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliatesfirst, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, each applicable Agent for the ratable payment thereof to each Class A Lender, any remaining Available Funds, until the Loans Outstanding that are Class A Loans are reduced to zero, and (B) otherwisesecond, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period each applicable Agent for the ratable payment thereofto each Class B Lender, any remaining Available Funds, until the Loans Outstanding that are Class B Loans are reduced to zero;
(vii) SEVENTHSeventh, to the Administrative each applicable Agent for the ratable payment to each Managing Agent, on behalf of the related Lenders, Class A Lender in an amount equal to any accrued and unpaid Subordinate Interest on the Class A Loans and Unused Fee for such Payment Dateany accrued and unpaid Senior Interest on the Class A Loans, Breakage Costs and other Aggregate Unpaids due to the Class A Lenders and not paid pursuant to clause (ii) above;
(viii) EIGHTH, firstEighth, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative each applicable Agent for the ratable payment to each Managing Agent, on behalf of the related Lenders, Class B Lender in an amount equal to any accrued and unpaid Subordinate Interest on the excessClass B Loans and any accrued and unpaid Senior Interest on the Class B Loans, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified and other Aggregate Unpaids due to the Borrower by the applicable Lender(s)), pro rata; provided, however, that Class B Committed Lenders and not paid pursuant to the extent that clause (iiii) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstandingabove;
(ix) NINTHNinth, to each any Hedge Counterparty, any Swap Subordinated Hedge Breakage and Indemnity Amounts owing that Hedge CounterpartyCosts due but not paid;
(x) TENTHTenth, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs all other Aggregate Unpaids (other than Breakage Costs covered in clause (viithe principal amount of the Loans Outstanding) above) with respect then due under this Agreement to any prepayments made on such Payment Date Increased Coststhe Affected Parties or the Indemnified Parties, and/or Taxes (if any)for the payment thereof;
(xi) ELEVENTHEleventh, pro rata, based on amounts owing to the Swingline LenderBackup Servicer, for the portion Servicer, the Account Bank, the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Xxxxx Fargo Bank) and the 2017-1A SUBI Trustee, any fees, expenses, indemnities and Transition Expenses not paid pursuant to clause (i) above, as applicable; and
(xii) Twelfth, any remaining amount shall be distributed to the Borrower.
(b) For the avoidance of doubt, it is hereby agreed that (i) accrued and unpaid fees, expenses and indemnities payable to the Account Bank, the Servicer, the Backup Servicer (including in its capacity as Successor Servicer), the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Xxxxx Fargo Bank) or the 2017-1A SUBI Trustee in excess of the Obligations constituting unpaid principal aggregate annual maximum amount for any year (as set forth in Section 2.08(a)(i)) and not paid pursuant to Section 2.08(a)(xi) shall be reimbursable in subsequent years in the same order of priority and subject to the same limitations as set forth above until paid in full, and (ii) each of the Swing Advances;caps set forth in Section 2.08(a)(i) with respect to the out-of-pocket expenses, losses and indemnities of the Account Bank, the Backup Servicer, the Third Party Allocation Agent (so long as such Third Party Allocation Agent is Xxxxx Fargo Bank) and the 2017-1A SUBI Trustee shall not be applicable upon the occurrence and during the continuance of any Event of Default. In making the payments required under this Section 2.08, the Account Bank shall have no duty to make any determination, calculation or verification regarding any amounts to be paid or the recipients of such amounts, and shall be entitled to rely exclusively and conclusively on the related Monthly Report.
Appears in 1 contract
Settlement Procedures. On (a) Collection of the Pool Receivables shall be administered by the Servicers in accordance with the terms of this Agreement. The Seller shall provide to the Servicers on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Assets Coverage Percentage.
(b) Each Applicable Servicer shall, on each Payment Dateday on which Collections of Pool Receivables are received (or deemed received) by the Seller or a Servicer, transfer (or cause to be transferred) such Collections from the Lock-Box Accounts and deposit (or cause to be deposited) such Collections into a Collection Account, except as otherwise permitted pursuant to Section 4.3(a). With respect to all Collections on deposit in the Collection Accounts on such day, the Servicer Servicers shall:
(i) set aside and maintain in the Collection Accounts for the benefit of the Purchaser (and, in the case of clause fourth below, the other applicable Purchaser Parties, subject to their right to receive such amounts solely in accordance with the priorities for payment set forth in Section 1.6(d) below), out of such Collections, first an amount equal to all Discount accrued through such day and not previously set aside, second, an amount equal to the sum of the Used Fees, Unused Fees and Breakage Costs accrued through such day and not previously set aside, third, to the extent funds are available therefor, an amount equal to the Servicing Fee accrued through such day and not previously set aside and fourth, to the extent funds are available therefor, any other amounts (other than return of Capital) owed to any Purchaser Party pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4 and not previously set aside;
(ii) subject to Section 1.6(f), if such day is not a Termination Day, remit to the Seller, on behalf of the Borrower shall pay for receipt by Purchaser, the applicable Lender no later than 11:00 a.m. remainder of such Collections. Such remainder shall, (New York City timex) to the following Personsextent representing a return of Capital, from be automatically reinvested in Purchased Assets and other proceeds with respect thereto and (iy) the Collection Account, to the extent not representing a return of available fundsCapital, be paid (iion behalf of the Purchaser) Servicer Advancesto the Seller in respect of the Deferred Purchase Price for the Purchased Assets; provided, however, that if, after giving effect to such Reinvestment, the Purchased Assets Coverage Percentage would exceed 100%, then the Servicers shall set aside and maintain in the Collection Accounts for the benefit of the Purchaser in accordance with clause (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (below the sum portion of such amounts described in clauses remaining Collections that, together with any other Collections set aside pursuant to this clause (iii), equals the amount necessary to reduce the Purchased Assets Coverage Percentage to 100% (ii) and or, if all such remaining Collections are not sufficient to reduce the Purchased Assets Coverage Percentage to 100%, then all such remaining Collections shall be so set aside for the benefit of the Purchaser), rather than remitting all of such remaining Collections to the Seller for Reinvestment or for payment of the Deferred Purchase Price;
(iii) if such day is a Termination Day, set aside and maintain in the Collection Account for the benefit of the Purchaser Parties the entire remainder of such Collections; and
(iv) subject to Section 1.6(f), minus pay to the Seller (on behalf of the Purchaser) for the Seller’s own accounts and in payment of the Deferred Purchase Price for the Purchased Assets, any Collections in excess of: (x) amounts required to be deposited to the Revolver Loan Funding Accounts reinvested in accordance with Section 2.14 below being the “Available Collections”clause (ii) above, plus (y) the following amounts that are required to be set aside pursuant to clause (i) above, pursuant to the proviso to clause (ii) above and pursuant to clause (iii) above, plus (z) all reasonable and appropriate out-of-pocket costs and expenses of the Servicers for servicing, collecting and administering the Pool Receivables.
(c) On each Settlement Date, each Applicable Servicer shall (i) deposit into the applicable Purchaser’s Account (or such other account designated by the Agent) all Collections held on deposit in each Collection Account for the benefit of the Purchaser Parties pursuant to Section 1.6(b) and Section 1.6(f) and (ii) deposit to each Servicer’s own account, from Collections held on deposit in the Collection Account pursuant to clause third of Section 1.6(b)(i) in respect of the accrued Servicing Fee, an amount equal to such Servicer’s portion of such accrued Servicing Fee; provided, however, that no amounts shall be payable to Garland under clause (ii) above.
(d) Upon receipt of funds deposited into any of the Purchaser’s Accounts pursuant to Section 1.6(c), the Agent shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day, such funds shall be distributed in the following order of priority:: first to the Purchaser in payment in full of all unpaid Discount accrued during the most recently ended Discount Accrual Period, second to the Purchaser in payment in full of all unpaid Used Fees, Unused Fees and Breakage Costs accrued during the most recently ended Discount Accrual Period, third to the Purchaser in payment of outstanding Capital (and accrued Discount thereon) to the extent that funds have been set aside for such purpose pursuant to Section 1.6(f), fourth to the Purchaser, the Agent and any other Purchaser Party in payment in full of any other amounts owed thereto pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4 and fifth, any remaining amounts shall be paid to the Purchaser in payment of outstanding Capital; and
(aii) During if such distribution occurs on a Termination Day, such funds shall be distributed in the Revolving Periodfollowing order of priority: first to the Purchaser in payment in full of all accrued and unpaid Discount, second to the Purchaser in payment in full of all accrued and unpaid Used Fees, Unused Fees and Breakage Costs, third to the Purchaser in payment in full of all outstanding Capital, and fourth to the Purchaser, the Agent and any other Purchaser Party in each case unless otherwise specified belowpayment in full of any other amounts owed thereto by the Seller or any Servicer hereunder (including, applying Interest without limitation, pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4) or under any other Transaction Document. After the occurrence of the Final Payout Date, all additional Collections first, and then Principal Collectionswith respect to the Purchased Assets shall be paid to the Seller for its own accounts in payment of the Deferred Purchase Price for the Purchased Assets.
(e) For the purposes of this Section 1.6:
(i) FIRSTif on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, to damaged, rejected, returned, repossessed or foreclosed goods or services, or any discount, rebate, credit, counterclaim, billing error or other adjustment made by the BorrowerSeller, any Originator or any Servicer, or any setoff or dispute between the Seller, any Originator or any Servicer and any Obligor, the aggregate Seller of such Pool Receivable shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of fees (including up-front, continuing such reduction or success fees) received in respect of the Transferred Loansadjustment;
(ii) SECOND, to each Hedge Counterparty, if on any amounts owing that Hedge Counterparty under its respective Hedging Agreement day any of the representations or warranties in respect of any Hedge Transaction(sparagraphs (e), for the payment thereof, but excluding, to the extent the Hedge Counterparty (f) or (k) of Section 1 of Exhibit III is not true with respect to any Pool Receivable, the same Person as the Administrative Agent, any Swap Breakage and Indemnity AmountsSeller of such Pool Receivable shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) THIRDIf an Obligor makes a payment but does not designate the Receivable to which such payment applies, then the Applicable Servicer shall contact such Obligor promptly in order to determine to which Receivable such payment relates; provided, that if the Obligor does not direct the Applicable Servicer to apply such payment to a particular Receivable or Receivables within thirty (30) days after such payment has been received in a Lock-Box Account or by the Applicable Servicer, then, except as otherwise required by applicable law or the relevant Contract, such payment shall be applied to the ServicerReceivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable; and
(iv) if and to the extent the Agent, the Purchaser or any other Indemnified Party shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller of the relevant Pool Receivable and, accordingly, the Agent or the Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of the Aggregate Capital (in whole or in part), the Seller may do so as follows:
(i) the Seller shall give the Agent at least (x) one (1) Business Day’s prior written notice thereof in the case of any reduction of the aggregate U.S. Capital or (y) one (1) Business Day’s prior written notice in the case of any reduction of the aggregate CAD Capital, EUR Capital or GBP Capital, in either case, in the form of Annex C (each, a “Paydown Notice”) setting forth the proposed amount of such reduction, the proposed date on which such reduction will commence (the “Paydown Date”) and the Approved Currency of the Capital to be reduced;
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections in the applicable Approved Currency with respect to the Capital or portion thereof to be reduced (including to any related Discount) not to be reinvested or used to pay the Deferred Purchase Price until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Applicable Servicer shall hold such Collections in a Collection Account for the benefit of the Purchaser, for payment to the Purchaser’s Account on the next Settlement Date (and in the case of a reduction of the entire Investment, the Servicers shall hold in the Collection Accounts for payment on such date an amount equal to any Unreimbursed Servicer Advances, for all other obligations of the payment thereof;
(iv) FOURTH, Seller or Servicers to the extent not Purchaser, the Agent and each other Purchaser Party hereunder) in accordance with Section 1.6(c), and the Aggregate Capital shall be deemed reduced in the amount to be paid by the Servicer, to the Backup Servicer Purchaser’s Account only when in fact finally so paid; provided that, the amount of any such reduction shall be not less than (A) one million U.S. Dollars ($1,000,000) or an integral multiple of one hundred thousand Dollars ($100,000) in excess thereof for reductions of U.S. Capital, (B) one million Euros (€1,000,000) or an integral multiple of one hundred thousand Euros (€100,000) in excess thereof for reductions of Euro Capital, (C) one million Canadian Dollars (CAD 1,000,000) or an integral multiple of one hundred thousand Canadian Dollars (CAD 100,000) in excess thereof for reductions of CAD Capital, and any Successor Servicer(D) one million GBP (£1,000,000) or an integral multiple of one hundred thousand GBP (£100,000) in excess thereof for reductions of GBP Capital, in each case, unless the aggregate U.S. Capital, Euro Capital, CAD Capital or GBP Capital, as applicable, in an amount equal shall have been reduced to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro ratazero; provided, howeverfurther, that to unless the extent that (i) information set forth in such Paydown Notice is also delivered through Agent’s electronic platform or portal, such Paydown Notice shall not be effective and the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf commencement of the related Lenders, in reduction of the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) Aggregate Capital shall not occur until the Agent shall have received such information from the Seller reasonably requested by the Agent to complete its authentication process with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, Paydown Notice and the results of the Agent’s authentication process shall be satisfactory to the Swingline LenderAgent in its sole discretion, for as notified by the portion of Agent to the Obligations constituting unpaid principal of the Swing Advances;Seller in writing.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Manitowoc Foodservice, Inc.)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, segregate in a separate account designated by the Administrative Agent, which shall be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Borrower or received in any Lock-Box or Collection Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay (i) the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement or (ii) amounts owing by the Borrower to the Originators under the Subordinated Notes (each such release, a “Release”). On each Payment Settlement Date, the Servicer on behalf (or, following its assumption of control of the Borrower shall pay for receipt by Collection Accounts, the applicable Lender no later than 11:00 a.m. (New York City timeAdministrative Agent) to the following Personsshall, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during distribute such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts Collections in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRSTfirst, to the BorrowerServicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of Servicing Fees payable for any prior Interest Period to the Transferred Loansextent such amount has not been distributed to the Servicer);
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTHsecond, to the Administrative Agent for payment distribution to each Managing AgentLender and other Credit Party (ratably, based on behalf of the related Lendersamount then due and owing), in an amount equal to any all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and Unused Fee 12.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 5.03 and 12.01 in respect of such payments) payable for any prior Interest Period to the extent such Payment Dateamount has not been distributed to such Lender or Credit Party;
(viiiiii) EIGHTHthird, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders as set forth in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
clause (x) TENTHor (y) below, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;as applicable:
Appears in 1 contract
Samples: Receivables Financing Agreement (Gardner Denver Holdings, Inc.)
Settlement Procedures. On each Payment Date, the Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iiiii) THIRDSECOND, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iviii) FOURTHTHIRD, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(viv) FIFTHFOURTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(viv) SIXTHFIFTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation Advisers, Inc. or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(viivi) SEVENTHSIXTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest Interest, Program Fee and Unused Liquidity Commitment Fee for such Payment Date;
(viiivii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest CollectionsSEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;
Appears in 1 contract
Settlement Procedures. On each Payment Date, the Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. 2:00 p.m. (New York City time) to ), the following PersonsPaying Agent, based solely on the Monthly Report delivered for the most recent Reporting Date (upon which the Paying Agent may conclusively rely), shall, from (i) amounts on deposit in the Collection AccountAccount (including, to the extent without limitation, amounts received in respect of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period) to the extent received on or before the last day of the related Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) ), cause to be disbursed the following amounts in the following order of priority:
(a) During the Revolving PeriodPeriod and prior to the occurrence and continuance of an Event of Default, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Available Collections:
(i) FIRSTFirst, to the BorrowerServicer in an amount equal to any Unreimbursed Servicer Advances, for the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loanspayment thereof;
(ii) SECONDSecond, to the Servicer, in an amount equal to its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(iii) Third, ratably, (A) to any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Transition Costs and Market Servicing Fee Differential, each for the payment thereof, (B) to the Bank Parties, the Collection Account Bank and the Funding Account Bank in an amount equal to any accrued and unpaid (including with respect to prior Payment Dates) Bank Fees and Expenses, if any, for the payment thereof in an aggregate amount under this clause (B), excluding Bank Fees, not to exceed the Bank Expense Cap, and (C) to the Administrative Agent, in an amount equal to any accrued and unpaid Administrative Agent Fee and Administrative Expenses;
(iv) Fourth, to each Hedge Counterparty, any amounts owing that to such Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTHFifth, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viiivi) EIGHTHSixth, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s))Maximum Availability, pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Non‑Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Non‑Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ixvii) NINTHSeventh, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing to that Hedge Counterparty;
(xviii) TENTHEighth, ratably, to any Successor Servicer, as applicable, and the Administrative Agent for payment Bank Parties, the Collection Account Bank and the Funding Account Bank in an amount equal to all other amounts then due under this Agreement or any other Transaction Document to any Successor Servicer, the Bank Parties, the Collection Account Bank or the Funding Account Bank (including Bank Fees and Expenses), in each case to the extent not paid pursuant to clause Third above;
(ix) Ninth, to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, Breakage Costs and/or Taxes (if any);
(xix) ELEVENTHTenth, to the Swingline LenderAdministrative Agent, the Lenders, the Affected Parties and Indemnified Parties, all other amounts or Obligations then due under this Agreement or the other Transaction Documents to the Administrative Agent, the Lenders, the Affected Parties or Indemnified Parties, each for the payment thereof;
(xi) Eleventh, to the Servicer, all other amounts then due under this Agreement or the other Transaction Documents to the Servicer, for the portion payment thereof; and
(xii) Twelfth, all remaining amounts to the Borrower’s Funding Account.
(b) During the Amortization Period or following the occurrence and during the continuance of an Event of Default, to the extent of Available Collections:
(i) First, to the Servicer in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(ii) Second, to the Servicer, in an amount equal to its accrued and unpaid Servicing Fees to the end of the Obligations constituting preceding Settlement Period for the payment thereof;
(iii) Third, ratably, (A) to any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid principal Transition Costs and Market Servicing Fee Differential, each for the payment thereof, (B) to the Bank Parties, the Collection Account Bank and the Funding Account Bank in an amount equal to any accrued and unpaid (including with respect to prior Payment Dates) Bank Fees and Expenses, if any, for the payment thereof, and (C) to the Administrative Agent, in an amount equal to any accrued and unpaid Administrative Agent Fee and Administrative Expenses;
(iv) Fourth, to each Hedge Counterparty, any amounts owing to such Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(v) Fifth, to each Managing Agent, on behalf of the Swing Advancesrelated Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(vi) Sixth, ratably to each Managing Agent, on behalf of the related Lenders, in an amount to reduce Advances Outstanding to zero;
(vii) Seventh, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing to that Hedge Counterparty;
(viii) Eighth, to any Successor Servicer, in an amount equal to all other amounts then due under this Agreement or any other Transaction Document to any Successor Servicer to the extent not paid pursuant to clause Third above;
(ix) Ninth, to each Managing Agent, on behalf of the related Lenders, in the amount of Increased Costs, Breakage Costs and/or Taxes (if any);
(x) Tenth, to the Administrative Agent, the Lenders, the Affected Parties and Indemnified Parties, all other amounts or Obligations then due under this Agreement or the other Transaction Documents to the Administrative Agent, the Lenders, the Affected Parties or Indemnified Parties, each for the payment thereof;
(xi) Eleventh, to the Servicer, all other amounts then due under this Agreement or the other Transaction Documents to the Servicer, for the payment thereof; and
(xii) Twelfth, all remaining amounts to the Borrower’s Funding Account.
Appears in 1 contract
Settlement Procedures. On each Payment Date, the Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. 2:00 p.m. (New York City time) to ), the following PersonsPaying Agent, based solely on the Monthly Report delivered for the most recent Reporting Date (upon which the Paying Agent may conclusively rely), shall, from (i) amounts on deposit in the Collection AccountAccount (including, to the extent without limitation, amounts received in respect of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period) to the extent received on or before the last day of the related Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) ), cause to be disbursed the following amounts in the following order of priority:
(a) During the Revolving PeriodPeriod and prior to the occurrence and continuance of an Event of Default, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Available Collections:
(i) FIRSTFirst, to the BorrowerServicer in an amount equal to any Unreimbursed Servicer Advances, for the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loanspayment thereof;
(ii) SECONDSecond, to the Servicer, in an amount equal to its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(iii) Third, ratably, (A) to any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Transition Costs and Market Servicing Fee Differential, each for the payment thereof, (B) to the Bank Parties, the Collection Account Bank and the Funding Account Bank in an amount equal to any accrued and unpaid (including with respect to prior Payment Dates) Bank Fees and Expenses, if any, for the payment thereof in an aggregate amount under this clause (B), excluding Bank Fees, not to exceed the Bank Expense Cap, and (C) to the Administrative Agent, in an amount equal to any accrued and unpaid Administrative Agent Fee and Administrative Expenses;
(iv) Fourth, to each Hedge Counterparty, any amounts owing that to such Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTHFifth, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viiivi) EIGHTHSixth, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s))Maximum Availability, pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ixvii) NINTHSeventh, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing to that Hedge Counterparty;
(xviii) TENTHEighth, ratably, to any Successor Servicer, as applicable, and the Administrative Agent for payment Bank Parties, the Collection Account Bank and the Funding Account Bank in an amount equal to all other amounts then due under this Agreement or any other Transaction Document to any Successor Servicer, the Bank Parties, the Collection Account Bank or the Funding Account Bank (including Bank Fees and Expenses), in each case to the extent not paid pursuant to clause Third above;
(ix) Ninth, to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, Breakage Costs and/or Taxes (if any);
(xix) ELEVENTHTenth, to the Swingline LenderAdministrative Agent, the Lenders, the Affected Parties and Indemnified Parties, all other amounts or Obligations then due under this Agreement or the other Transaction Documents to the Administrative Agent, the Lenders, the Affected Parties or Indemnified Parties, each for the payment thereof;
(xi) Eleventh, to the Servicer, all other amounts then due under this Agreement or the other Transaction Documents to the Servicer, for the portion payment thereof; and
(xii) Twelfth, all remaining amounts to the Borrower’s Funding Account.
(b) During the Amortization Period or following the occurrence and during the continuance of an Event of Default, to the extent of Available Collections:
(i) First, to the Servicer in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(ii) Second, to the Servicer, in an amount equal to its accrued and unpaid Servicing Fees to the end of the Obligations constituting preceding Settlement Period for the payment thereof;
(iii) Third, ratably, (A) to any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid principal Transition Costs and Market Servicing Fee Differential, each for the payment thereof, (B) to the Bank Parties, the Collection Account Bank and the Funding Account Bank in an amount equal to any accrued and unpaid (including with respect to prior Payment Dates) Bank Fees and Expenses, if any, for the payment thereof, and (C) to the Administrative Agent, in an amount equal to any accrued and unpaid Administrative Agent Fee and Administrative Expenses;
(iv) Fourth, to each Hedge Counterparty, any amounts owing to such Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(v) Fifth, to each Managing Agent, on behalf of the Swing Advancesrelated Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(vi) Sixth, ratably to each Managing Agent, on behalf of the related Lenders, in an amount to reduce Advances Outstanding to zero;
(vii) Seventh, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing to that Hedge Counterparty;
(viii) Eighth, to any Successor Servicer, in an amount equal to all other amounts then due under this Agreement or any other Transaction Document to any Successor Servicer to the extent not paid pursuant to clause Third above;
(ix) Ninth, to each Managing Agent, on behalf of the related Lenders, in the amount of Increased Costs, Breakage Costs and/or Taxes (if any);
(x) Tenth, to the Administrative Agent, the Lenders, the Affected Parties and Indemnified Parties, all other amounts or Obligations then due under this Agreement or the other Transaction Documents to the Administrative Agent, the Lenders, the Affected Parties or Indemnified Parties, each for the payment thereof;
(xi) Eleventh, to the Servicer, all other amounts then due under this Agreement or the other Transaction Documents to the Servicer, for the payment thereof; and
(xii) Twelfth, all remaining amounts to the Borrower’s Funding Account.
Appears in 1 contract
Settlement Procedures. On each Payment Date, Date the Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) the Collection Account, to the extent of available funds, funds and (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iiiii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 2.13 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During the Revolving Period, and and, in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRSTFirst, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, pro rata to each Hedge Counterparty, any amounts amounts, excluding any Hedge Breakage Costs and any payments due in respect of the termination of any Hedge Transactions, owing to that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding;
(ii) Second, to the extent the Hedge Counterparty is not the same Person Backup Servicer (including in its capacity as the Administrative AgentSuccessor Servicer, if applicable), in amount equal to any accrued and unpaid currently due Backup Servicer Fee, all unpaid Backup Servicer Fees due from a prior Payment Date, any Swap Breakage unpaid Backup Servicer Expenses and Indemnity Amountsamounts due to the Backup Servicer as an Indemnified Party, and any Transition Costs, for the payment thereof; provided that the amount of Transition Costs payable under this clause Second shall not exceed $100,000 in the aggregate with respect to such Payment Date;
(iii) THIRDThird, to the Trustee in an amount equal to any accrued and unpaid currently due Trustee Fee, all unpaid Trustee Fees due from a prior Payment Date, all unpaid Trustee Expenses, and any other amounts due to the Trustee as an Indemnified Party, for the payment thereof;
(iv) Fourth, (A) to the initial Servicer, to the extent (x) accrued but not yet payable, to the Servicer Fee Accrual Account, the Senior Portion of Servicing Fee of the Servicer for the prior Settlement Period and (y) due and payable, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, its accrued and unpaid Senior Portion of Servicing Fee after giving effect to the extent not paid by application of funds accrued in the ServicerServicer Fee Accrual Account released on such Payment Date, and (B) to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any the accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees Differential to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Collection Period, for the payment thereof and (B) otherwise, its accrued and unpaid thereof; provided that the amount of Market Servicing Fees to the end Fee Differential payable in any 12-month period under this clause Fourth shall not exceed 1.0% of the preceding Settlement Period for the payment thereofAggregate Outstanding Principal Balance;
(viiv) SEVENTHFifth, to the Administrative Agent for payment pro rata to each Managing Agent, on behalf of the related Lenders, Lender in an amount equal to any accrued and unpaid Interest and Unused Fee Breakage Costs, for such Payment Datethe payment thereof;
(vi) Sixth, pro rata to each Lender in an amount equal to any accrued and unpaid Commitment Fee, for the payment thereof;
(vii) Seventh, to the Reserve Account, an amount, if necessary, required for the amount on deposit in the Reserve Account to equal the Reserve Account Required Amount;
(viii) EIGHTHEighth, to the Administrative Agent for the account of the applicable Affected Party, to be paid pro rata to such Affected Party in accordance with the amount owed to such Person under this clause Eighth, in an amount equal to any unpaid Increased Costs, Taxes and any Other Costs, for the payment thereof;
(ix) Ninth, first, to the extent of available Principal Collections, Collections and second, to the extent of available Interest Collections, pro rata to each Lender, an amount, if necessary, in repayment of sufficient Advances Outstanding to cause the Borrowing Base Test to be satisfied.
(x) Tenth, to the Administrative Agent for payment to each Managing Agent, on behalf the Lenders, the Affected Parties and the Indemnified Parties (other than the Servicer, if the Servicer is an Affiliate of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(sBorrower)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs owed to such Person under this clause Tenth, all other amounts (other than Breakage Costs covered in clause (viiAdvances Outstanding) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lenderthen due under this Agreement, for the portion of the Obligations constituting unpaid principal of the Swing Advancespayment thereof;
Appears in 1 contract
