Withdrawals from the Revenue Account. Amounts in the Revenue Account shall be disbursed (A) by the Depositary Bank as directed by the Borrower (which disbursement shall be described in a certificate executed by a Responsible Officer of the Borrower to the Administrative Agent, the Collateral Agent and the Depositary Bank at least (1) five (5) Business Days prior to the applicable funding date, in the case of any Withdrawal Certificate that includes transfers for the payment of Debt Service pursuant to clauses (i), (ii) or (iii) below; (2) in any other case, other than with respect to transfers pursuant to clause (vi) below, three (3) Business Days prior to the applicable funding date; or (3) in the case of any transfer with respect to clause (vi) below, no later than two (2) Business Days after the applicable Excess Cash Flow Period detailing the amounts and Persons to be paid in accordance with the following clauses (i) through (vi) and in substantially the form set forth in Exhibit K (such certificate, a “Withdrawal Certificate”)) (via wire transfer or by internal transfer between Depositary Accounts, if applicable), to the extent that funds are then available in the Revenue Account, in the following order of priority, or (B) upon the occurrence and during the continuance of a Default or Event of Default, from time to time as the Administrative Agent shall direct, to be applied against the Obligations of the Borrower that are then due and payable to the Agents, the Lenders and the other Secured Parties, in the order of priority set forth below or (C) if the Borrower fails to deliver a Withdrawal Certificate pursuant to this Section 2.19(c) on any date on which any amounts described in this Section 2.19(c) are due and payable to the Secured Parties, as the Administrative Agent may direct (with one Business Day’s advance notice thereof and a copy of such Withdrawal Certificate to the Borrower and the Collateral Agent) in the order of priority set forth below: (i) first, from time to time as necessary to pay as and when due Operating Expenses (provided that any such payments to Affiliates shall be in compliance with Section 6.07), including expenses, indemnity payments and other amounts (including reasonable and documented fees, charges and disbursements of counsel of any Agent) payable to the Administrative Agent, the Collateral Agent or the Depositary Bank, in their capacities as such (but excluding any amounts payable pursuant to clause (iv) below), and Fees, that have become due and payable and have not yet been paid, as set forth in the applicable Withdrawal Certificate (or, if applicable, direction from the Administrative Agent); (ii) second, after giving effect to any withdrawals pursuant to clauses (i) above, on each Quarterly Date and otherwise from time to time as necessary to pay as and when due (x) to the Administrative Agent, the interest and any breakage costs on the Loans payable to the Lenders hereunder and (y) to each applicable Specified Swap Counterparty, scheduled ordinary course payments (but not termination payments) payable by a Loan Party under Secured Swap Agreements, as set forth in the applicable Withdrawal Certificate (or, if applicable, direction from the Administrative Agent); (iii) third, after giving effect to the withdrawals pursuant to clauses (i) and (ii) above, on each Quarterly Date, as necessary to pay as and when due (x) to the Administrative Agent, any principal of (including Scheduled Amortization Payments) and premium, if any, on the Loans payable to the Lenders hereunder and (y) to each applicable Specified Swap Counterparty, termination payments payable by a Loan Party under Secured Swap Agreements, as set forth in the applicable Withdrawal Certificate (or, if applicable, direction from the Administrative Agent); (iv) fourth, after giving effect to the withdrawals pursuant to clauses (i) through (iii) above, on each Quarterly Date and otherwise from time to time as necessary to pay as and when due to the Persons entitled thereto all indemnities and other amounts (other than interest, Fees, principal and premium) payable to the Lenders and Specified Swap Counterparties under the Loan Documents and Secured Swap Agreements, as set forth in the applicable Withdrawal Certificate (or, if applicable, direction from the Administrative Agent); (v) fifth, after giving effect to the withdrawals pursuant to clauses (i) through (iv) above, on each Quarterly Date, as necessary to fund the Debt Service Reserve Account such that the amount on deposit and available therein (taking into account any Sponsor Guaranty and Account Letter of Credit credited thereto) is at least equal to the DSR Requirement Amount, as set forth in the applicable Withdrawal Certificate (or, if applicable, direction from the Administrative Agent); (vi) sixth, at the option of the Borrower in its sole discretion, after giving effect to the withdrawals pursuant to clauses (i) through (v) above, on each Quarterly Date, to fund the Liquidity Reserve Account and/or the Local Accounts in the amount, if any, determined by the Borrower (in its sole discretion), as set forth in the applicable Withdrawal Certificate; provided that, in no event, shall the aggregate amount of monies on deposit (1) in the Liquidity Reserve Account, after giving effect to any such transfer, exceed the Liquidity Reserve Maximum Balance or (2) in the Liquidity Reserve Account together with monies on deposit in the Local Accounts, after giving effect to any such transfer, exceed [$***]; (vii) seventh, after giving effect to the withdrawals pursuant to clauses (i) through (vi) above, as set forth in the applicable Withdrawal Certificate: (A) on each Quarterly Date, the Applicable ECF Percentage of Excess Cash Flow for the Excess Cash Flow Period ending on such Quarterly Date remaining on deposit in the Revenue Account shall be applied as follows: (x) if no Credit Support Reimbursement Obligations are then outstanding and unpaid, all such Excess Cash Flow shall be transferred to the ECF Prepayment Account and (y) if Credit Support Reimbursement Obligations are then outstanding and unpaid, such Excess Cash Flow shall be allocated pro rata (based on the aggregate amount of the outstanding principal of the Loans and the Credit Support Reimbursement Obligations then outstanding and unpaid on such Quarterly Date), with (1) the amount allocated to the Loans transferred to the ECF Prepayment Account and (2) the amount allocated to Credit Support Reimbursement Obligations transferred to an Affiliate of the Borrower as directed in the applicable Withdrawal Certificate to be applied to the payment or prepayment of such Credit Support Reimbursement Obligations; and (B) in addition, on each Quarterly Date occurring in May (commencing with the Quarterly Date occurring in May 2022), if applicable, after giving effect to the payment(s) described in the immediately preceding clause (A) on such Quarterly Date, an amount of funds remaining on deposit in the Revenue Account on such Quarterly Date equal to the Target Balance Prepayment Amount for the applicable ECF Sweep Date shall be transferred to the ECF Prepayment Account; provided, that notwithstanding anything to the contrary in this clause (vii), to the extent any Credit Support Reimbursement Obligation remains outstanding for twelve (12) Quarterly Dates after the incurrence of such Credit Support Reimbursement Obligation, 100% of Excess Cash Flow remaining on deposit in the Revenue Account for the Excess Cash Flow Period ending on the last of such Quarterly Dates, and each Quarterly Date thereafter on which such Credit Support Reimbursement Obligation remains outstanding, shall be applied first to the payment of such Credit Support Reimbursement Obligation until such Credit Support Reimbursement Obligation is paid in full, and then any remaining Excess Cash Flow after such application shall be applied as set forth above in this clause (vii); and (viii) eighth, on each ECF Sweep Date (commencing with the ECF Sweep Date occurring in May 2022), so long as no Default or Event of Default has occurred and is continuing, any funds remaining on deposit in the Revenue Account after giving effect to the withdrawals pursuant to clauses (i) through (vii) above, shall be transferred, as set forth in the applicable Withdrawal Certificate (including to Holding or its Affiliates). If funds being disbursed at any time pursuant to clause (ii), (iii) or (iv) above are insufficient on any date to make the transfers and payments specified in the applicable Withdrawal Certificate, then the amounts in the Revenue Account at such level at such time shall be transferred to the Persons entitled thereto pro rata based on the respective amounts then due and payable to such Persons.
Appears in 1 contract
Withdrawals from the Revenue Account. Amounts in the Revenue Account shall be disbursed (A) by the Depositary Bank as directed by the Borrower (which disbursement shall be described in a certificate executed by a Responsible Officer of the Borrower to the Administrative Agent, the Collateral Agent and the Depositary Bank at least (1) five (5) Business Days prior to the applicable funding date, in the case of any Withdrawal Certificate that includes transfers for the payment of Debt Service pursuant to clauses (i), (ii) or (iii) below; (2) in any other case, other than with respect to transfers pursuant to clause (vi) below, three (3) Business Days prior to the applicable funding date; or (3) in the case of any transfer with respect to clause (vi) below, no later than two (2) Business Days after the applicable Excess Cash Flow Period detailing the amounts and Persons to be paid in accordance with the following clauses (i) through (vi) and in substantially the form set forth in Exhibit K (such certificate, a “Withdrawal Certificate”)) (via wire transfer or by internal transfer between Depositary Accounts, if applicable), to the extent that funds are then available in the Revenue Account, in the following order of priority, or (B) upon the occurrence and during the continuance of a Default or Event of Default, from time to time as the Administrative Agent shall direct, to be applied against the Obligations of the Borrower that are then due and payable to the Agents, the Lenders and the other Secured Parties, in the order of priority set forth below or (C) if the Borrower fails to deliver a Withdrawal Certificate pursuant to this Section 2.19(c) on any date on which any amounts described in this Section 2.19(c) are due and payable to the Secured Parties, as the Administrative Agent may direct (with one Business Day’s advance notice thereof and a copy of such Withdrawal Certificate to the Borrower and the Collateral Agent) in the order of priority set forth below:
: (i) first, from time to time as necessary to pay as and when due Operating Expenses (provided that any such payments to Affiliates shall be in compliance with Section 6.07), including expenses, indemnity payments and other amounts (including reasonable and documented fees, charges and disbursements of counsel of any Agent) payable to the Administrative Agent, the Collateral Agent or the Depositary Bank, in their capacities as such (but excluding any amounts payable pursuant to clause (iv) below), and Fees, that have become due and payable and have not yet been paid, as set forth in the applicable Withdrawal Certificate (or, if applicable, direction from the Administrative Agent);
; (ii) second, after giving effect to any withdrawals pursuant to clauses clause (i) above, on each Quarterly Date and otherwise from time to time as necessary to pay as and when due (x) to the Administrative Agent, the interest and any breakage costs on the Loans payable to the Lenders hereunder and (y) to each applicable Specified Swap Counterparty, interest and scheduled ordinary course payments (but not termination payments) payable by a Loan Party under Secured Swap Agreements, as set forth in the applicable Withdrawal Certificate (or, if applicable, direction from the Administrative Agent);
; (iii) third, after giving effect to the withdrawals pursuant to clauses (i) and (ii) above, on each Quarterly Date, as necessary to pay as and when due (x) to the Administrative Agent, any principal of (including Scheduled Amortization Payments) and premium, if any, on the Loans payable to the Lenders hereunder and (y) to each applicable Specified Swap Counterparty, termination payments payable by a Loan Party under Secured Swap Agreements, as set forth in the applicable Withdrawal Certificate (or, if applicable, direction from the Administrative Agent);
; (iv) fourth, after giving effect to the withdrawals pursuant to clauses (i) through (iii) above, on each Quarterly Date and otherwise from time to time as necessary to pay as and when due to the Persons entitled thereto all indemnities and other amounts (other than interest, Fees, principal and premium) payable to the Lenders and Specified Swap Counterparties under the Loan Documents and Secured Swap Agreements, as set forth in the applicable Withdrawal Certificate (or, if applicable, direction from the Administrative Agent);
(v) fifth, after giving effect to the withdrawals pursuant to clauses (i) through (iv) above, on each Quarterly Date, as necessary to fund the Debt Service Reserve Account such that the amount on deposit and available therein (taking into account any Sponsor Guaranty and Account Letter of Credit credited thereto) is at least equal to the DSR Requirement Amount, as set forth in the applicable Withdrawal Certificate (or, if applicable, direction from the Administrative Agent);
(vi) sixth, at the option of the Borrower in its sole discretion, after giving effect to the withdrawals pursuant to clauses (i) through (v) above, on each Quarterly Date, to fund the Liquidity Reserve Account and/or the Local Accounts in the amount, if any, determined by the Borrower (in its sole discretion), as set forth in the applicable Withdrawal Certificate; provided that, in no event, shall the aggregate amount of monies on deposit (1) in the Liquidity Reserve Account, after giving effect to any such transfer, exceed the Liquidity Reserve Maximum Balance or (2) in the Liquidity Reserve Account together with monies on deposit in the Local Accounts, after giving effect to any such transfer, exceed [$***];
(vii) seventh, after giving effect to the withdrawals pursuant to clauses (i) through (vi) above, as set forth in the applicable Withdrawal Certificate:
(A) on each Quarterly Date, the Applicable ECF Percentage of Excess Cash Flow for the Excess Cash Flow Period ending on such Quarterly Date remaining on deposit in the Revenue Account shall be applied as follows: (x) if no Credit Support Reimbursement Obligations are then outstanding and unpaid, all such Excess Cash Flow shall be transferred to the ECF Prepayment Account and (y) if Credit Support Reimbursement Obligations are then outstanding and unpaid, such Excess Cash Flow shall be allocated pro rata (based on the aggregate amount of the outstanding principal of the Loans and the Credit Support Reimbursement Obligations then outstanding and unpaid on such Quarterly Date), with (1) the amount allocated to the Loans transferred to the ECF Prepayment Account and (2) the amount allocated to Credit Support Reimbursement Obligations transferred to an Affiliate of the Borrower as directed in the applicable Withdrawal Certificate to be applied to the payment or prepayment of such Credit Support Reimbursement Obligations; and
(B) in addition, on each Quarterly Date occurring in May (commencing with the Quarterly Date occurring in May 2022), if applicable, after giving effect to the payment(s) described in the immediately preceding clause (A) on such Quarterly Date, an amount of funds remaining on deposit in the Revenue Account on such Quarterly Date equal to the Target Balance Prepayment Amount for the applicable ECF Sweep Date shall be transferred to the ECF Prepayment Account; provided, that notwithstanding anything to the contrary in this clause (vii), to the extent any Credit Support Reimbursement Obligation remains outstanding for twelve (12) Quarterly Dates after the incurrence of such Credit Support Reimbursement Obligation, 100% of Excess Cash Flow remaining on deposit in the Revenue Account for the Excess Cash Flow Period ending on the last of such Quarterly Dates, and each Quarterly Date thereafter on which such Credit Support Reimbursement Obligation remains outstanding, shall be applied first to the payment of such Credit Support Reimbursement Obligation until such Credit Support Reimbursement Obligation is paid in full, and then any remaining Excess Cash Flow after such application shall be applied as set forth above in this clause (vii); and
(viii) eighth, on each ECF Sweep Date (commencing with the ECF Sweep Date occurring in May 2022), so long as no Default or Event of Default has occurred and is continuing, any funds remaining on deposit in the Revenue Account after giving effect to the withdrawals pursuant to clauses (i) through (vii) above, shall be transferred, as set forth in the applicable Withdrawal Certificate (including to Holding or its Affiliates). If funds being disbursed at any time pursuant to clause (ii), (iii) or (iv) above are insufficient on any date to make the transfers and payments specified in the applicable Withdrawal Certificate, then the amounts in the Revenue Account at such level at such time shall be transferred to the Persons entitled thereto pro rata based on the respective amounts then due and payable to such Persons.
Appears in 1 contract
Withdrawals from the Revenue Account. Amounts in the Revenue Account shall be disbursed (A) by the Depositary Bank as directed by the Borrower (which disbursement shall be described in a certificate executed by a Responsible Officer of the Borrower to the Administrative Agent, the Collateral Agent and the Depositary Bank at least (1) five (5) Business Days prior to the applicable funding date, in the case of any Withdrawal Certificate that includes transfers for the payment of Debt Service pursuant to clauses (i), (ii) or (iii) below; (2) in any other case, other than with respect to transfers pursuant to clause (vi) below, three (3) Business Days prior to the applicable funding date; or (3) in the case of any transfer with respect to clause (vi) below, no later than two (2) Business Days after the applicable Excess Cash Flow Period detailing the amounts and Persons to be paid in accordance with the following clauses (i) through (vi) and in substantially the form set forth in Exhibit K (such certificate, a “Withdrawal Certificate”)) (via wire transfer or by internal transfer between Depositary Accounts, if applicable), to the extent that funds are then available in the Revenue Account, in the following order of priority, or (B) upon the occurrence and during the continuance of a Default or Event of Default, from time to time as the Administrative Agent shall direct, to be applied against the Obligations of the Borrower that are then due and payable to the Agents, the Lenders and the other Secured Parties, in the order of priority set forth below or (C) if the Borrower fails to deliver a Withdrawal Certificate pursuant to this Section 2.19(c) on any date on which any amounts described in this Section 2.19(c) are due and payable to the Secured Parties, as the Administrative Agent may direct (with one Business Day’s advance notice thereof and a copy of such Withdrawal Certificate to the Borrower and the Collateral Agent) in the order of priority set forth below:
(i) first, from time to time as necessary to pay as and when due Operating Expenses (provided that any such payments to Affiliates shall be in compliance with Section 6.07), including expenses, indemnity payments and other amounts (including reasonable and documented fees, charges and disbursements of counsel of any Agent) payable to the Administrative Agent, the Collateral Agent or the Depositary Bank, in their capacities as such (but excluding any amounts payable pursuant to clause (iv) below), and Fees, that have become due and payable and have not yet been paid, as set forth in the applicable Withdrawal Certificate (or, if applicable, direction from the Administrative Agent);
(ii) second, after giving effect to any withdrawals pursuant to clauses (i) above, on each Quarterly Date and otherwise from time to time as necessary to pay as and when due (x) to the Administrative Agent, the interest and any breakage costs on the Loans payable to the Lenders hereunder and (y) to each applicable Specified Swap Counterparty, scheduled ordinary course payments (but not termination payments) payable by a Loan Party under Secured Swap Agreements, as set forth in the applicable Withdrawal Certificate (or, if applicable, direction from the Administrative Agent);
(iii) third, after giving effect to the withdrawals pursuant to clauses (i) and (ii) above, on each Quarterly Date, as necessary to pay as and when due (x) to the Administrative Agent, any principal of (including Scheduled Amortization Payments) and premium, if any, on the Loans payable to the Lenders hereunder and (y) to each applicable Specified Swap Counterparty, termination payments payable by a Loan Party under Secured Swap Agreements, as set forth in the applicable Withdrawal Certificate (or, if applicable, direction from the Administrative Agent);
(iv) fourth, after giving effect to the withdrawals pursuant to clauses (i) through (iii) above, on each Quarterly Date and otherwise from time to time as necessary to pay as and when due to the Persons entitled thereto all indemnities and other amounts (other than interest, Fees, principal and premium) payable to the Lenders and Specified Swap Counterparties under the Loan Documents and Secured Swap Agreements, as set forth in the applicable Withdrawal Certificate (or, if applicable, direction from the Administrative Agent);
(v) fifth, after giving effect to the withdrawals pursuant to clauses (i) through (iv) above, on each Quarterly Date, as necessary to fund the Debt Service Reserve Account such that the amount on deposit and available therein (taking into account any Sponsor Guaranty and Account Letter of Credit credited thereto) is at least equal to the DSR Requirement Amount, as set forth in the applicable Withdrawal Certificate (or, if applicable, direction from the Administrative Agent);
(vi) sixth, at the option of the Borrower in its sole discretion, after giving effect to the withdrawals pursuant to clauses (i) through (v) above, on each Quarterly Date, to fund the Liquidity Reserve Account and/or the Local Accounts in the amount, if any, determined by the Borrower (in its sole discretion), as set forth in the applicable Withdrawal Certificate; provided that, in no event, shall the aggregate amount of monies on deposit (1) in the Liquidity Reserve Account, after giving effect to any such transfer, exceed the Liquidity Reserve Maximum Balance or (2) in the Liquidity Reserve Account together with monies on deposit in the Local Accounts, after giving effect to any such transfer, exceed [$***];
(vii) seventh, after giving effect to the withdrawals pursuant to clauses (i) through (vi) above, as set forth in the applicable Withdrawal Certificate:
(A) on each Quarterly Date, the Applicable ECF Percentage of Excess Cash Flow for the Excess Cash Flow Period ending on such Quarterly Date remaining on deposit in the Revenue Account shall be applied as follows: (x) if no Credit Support Reimbursement Obligations are then outstanding and unpaid, all such Excess Cash Flow shall be transferred available to the ECF Prepayment Account Borrower from time to time for withdrawal and application to the extent available at the following times and in the following order of priority (ywith no payment referred to in each clause below being made until all amounts referred to in the clauses preceding it have been made):
(i) if Credit Support Reimbursement Obligations are First, to the extent then outstanding due and unpaidpayable, such Excess Cash Flow shall be allocated pro rata (based on to pay Operating Expenses and the aggregate amount Borrower’s good faith estimate of the outstanding principal of Operating Expenses reasonably expected to be due and payable before the Loans and the Credit Support Reimbursement Obligations then outstanding and unpaid on such Quarterly Date), with next Monthly Date (1) the amount allocated to the Loans transferred to the ECF Prepayment Account and (2) the amount allocated to Credit Support Reimbursement Obligations transferred to an Affiliate of the Borrower as directed certified in the applicable Withdrawal Certificate Withdrawal/Transfer Certificate); provided, that in no event may Operating Expenses paid under this clause (i) that are allocated to or payable to any Affiliate of Borrower (as opposed to Operating Expenses directly paid by Borrower to unaffiliated third parties) exceed $350,000 in any calendar year;
(ii) Second, to the extent due and payable, to the Administrative Agent an amount sufficient to pay the costs, indemnities, administrative fees and expenses (including fees, charges and disbursements of counsel) with respect to the Pari Passu Permitted Debt and any Secured Interest Rate Hedge Agreement entered into in connection therewith and such amounts becoming due and payable before the next Monthly Date;
(iii) Third, to the extent a Required Contribution is required to be applied made by the Borrower under the JV LLC Agreement, to fund such Required Contribution, provided that the amount on deposit in or credited to the payment or prepayment of Required Contributions Reserve Account equals zero ($0) (taking into account any concurrent transfers made from the Required Contributions Reserve Account);
(iv) Fourth, (A) if such Credit Support Reimbursement Obligations; and
Monthly Date is a Quarterly Payment Date, to the extent then due and payable, to the Administrative Agent an amount sufficient, together with all amounts then on deposit in the Payment Account, to pay the Interest and Fee Amounts, and (B) if such Monthly Date is not a Quarterly Payment Date, to withdraw and transfer to the Payment Account an amount equal to one-third (1/3rd) of the amount of any Interest and Fee Amounts reasonably expected to be due and payable on the next Quarterly Payment Date;
(v) Fifth, (A) if such Monthly Date is a Quarterly Payment Date, to the extent then due and payable, to the Administrative Agent an amount sufficient, together with all amounts then on deposit in addition, on each Quarterly Date occurring in May (commencing with the Quarterly Date occurring in May 2022), if applicable, Payment Account after giving effect to the payment(samounts required to be deposited therein pursuant to Section 2.16(i)(iv), to pay the Principal Payment Amounts, and (B) described if such Monthly Date is not a Quarterly Payment Date, to withdraw and transfer to the Payment Account an amount equal to one-third (1/3rd) of the amount of any Principal Payment Amounts reasonably expected to be due and payable on the next Quarterly Payment Date;
(vi) Sixth, to the extent then due and payable, to pay Working Capital Loans, L/C Loans and Unreimbursed Amounts then outstanding;
(vii) Seventh, on each Quarterly Payment Date on and after the Initial Quarterly Payment Date, transfer to the Debt Service Reserve Account an amount necessary to cause the Funded DSR to equal the DSR Requirement and, thereafter, to fund any similar debt service reserve for any Additional Pari Passu Permitted Debt;
(viii) Eighth, to the extent remaining unpaid after the application of amounts in the immediately preceding clause Extraordinary Proceeds Accounts pursuant to Section 2.16(k), to make mandatory prepayments of the Pari Passu Permitted Debt as set forth in Section 2.04(b) and, thereafter, to make optional prepayments of any other Indebtedness outstanding at such time, including for purposes of Section 8.01(o);
(ix) Ninth, to the (A) on such Quarterly Datepayment of principal, an amount interest and fees due and payable, in connection with any Other Permitted Debt, (B) Swap Termination Payments due and payable with respect to any Other Permitted Debt, and (C) mandatory or optional prepayments of funds remaining Other Permitted Debt; and
(x) Tenth, any excess amounts on deposit in the Revenue Account on such Quarterly Date equal to the Target Balance Prepayment Amount for the applicable ECF Sweep Date shall be transferred (A) if the Restricted Payment Conditions are satisfied, to an Excluded Account of the ECF Prepayment AccountBorrower to be applied in any way not prohibited by the Loan Documents; provided, that notwithstanding anything to and (B) if the contrary in this clause (vii)Restricted Payment Conditions are not then satisfied, to the extent any Credit Support Reimbursement Obligation remains outstanding for twelve (12) Quarterly Dates after the incurrence of such Credit Support Reimbursement Obligation, 100% of Excess Cash Flow remaining on deposit in the Revenue Distribution Suspense Account for the Excess Cash Flow Period ending on the last of such Quarterly Dates, and each Quarterly Date thereafter on which such Credit Support Reimbursement Obligation remains outstanding, shall be applied first to the payment of such Credit Support Reimbursement Obligation until such Credit Support Reimbursement Obligation is paid application in full, and then any remaining Excess Cash Flow after such application shall be applied as set forth above in this clause (viiaccordance with Section 2.16(j); and
(viii) eighth, on each ECF Sweep Date (commencing with the ECF Sweep Date occurring in May 2022), so long as no Default or Event of Default has occurred and is continuing, any funds remaining on deposit in the Revenue Account after giving effect to the withdrawals pursuant to clauses (i) through (vii) above, shall be transferred, as set forth in the applicable Withdrawal Certificate (including to Holding or its Affiliates). If funds being disbursed at any time pursuant to clause (ii), (iii) or (iv) above are insufficient on any date to make the transfers and payments specified in the applicable Withdrawal Certificate, then the amounts in the Revenue Account at such level at such time shall be transferred to the Persons entitled thereto pro rata based on the respective amounts then due and payable to such Persons.
Appears in 1 contract
Withdrawals from the Revenue Account. Amounts in the Revenue Account shall be disbursed (A) by the Depositary Bank as directed by the Borrower (which disbursement shall be described in a certificate executed by a Responsible Officer of the Borrower to the Administrative Agent, the Collateral Agent and the Depositary Bank at least (1) five (5) Business Days prior to the applicable funding date, in the case of any Withdrawal Certificate that includes transfers for the payment of Debt Service pursuant to clauses (i), (ii) or (iii) below; (2) in any other case, other than with respect to transfers pursuant to clause (vi) below, three (3) Business Days prior to the applicable funding date; or (3) in the case of any transfer with respect to clause (vi) below, no later than two (2) Business Days after the applicable Excess Cash Flow Period detailing the amounts and Persons to be paid in accordance with the following clauses (i) through (vi) and in substantially the form set forth in Exhibit K (such certificate, a “Withdrawal Certificate”)) (via wire transfer or by internal transfer between Depositary Accounts, if applicable), to the extent that funds are then available in the Revenue Account, in the following order of priority, or (B) upon the occurrence and during the continuance of a Default or Event of Default, from time to time as the Administrative Agent shall direct, to be applied against the Obligations of the Borrower that are then due and payable to the Agents, the Lenders and the other Secured Parties, in the order of priority set forth below or (C) if the Borrower fails to deliver a Withdrawal Certificate pursuant to this Section 2.19(c) on any date on which any amounts described in this Section 2.19(c) are due and payable to the Secured Parties, as the Administrative Agent may direct (with one Business Day’s advance notice thereof and a copy of such Withdrawal Certificate to the Borrower and the Collateral Agent) in the order of priority set forth below:
(i) first, from time to time as necessary to pay as and when due Operating Expenses (provided that any such payments to Affiliates shall be in compliance with Section 6.07), including expenses, indemnity payments and other amounts (including reasonable and documented fees, charges and disbursements of counsel of any Agent) payable to the Administrative Agent, the Collateral Agent or the Depositary Bank, in their capacities as such (but excluding any amounts payable pursuant to clause (iv) below), and Fees, that have become due and payable and have not yet been paid, as set forth in the applicable Withdrawal Certificate (or, if applicable, direction from the Administrative Agent);
(ii) second, after giving effect to any withdrawals pursuant to clauses (i) above, on each Quarterly Date and otherwise from time to time as necessary to pay as and when due (x) to the Administrative Agent, the interest and any breakage costs on the Loans payable to the Lenders hereunder and (y) to each applicable Specified Swap Counterparty, scheduled ordinary course payments (but not termination payments) payable by a Loan Party under Secured Swap Agreements, as set forth in the applicable Withdrawal Certificate (or, if applicable, direction from the Administrative Agent);
(iii) third, after giving effect to the withdrawals pursuant to clauses (i) and (ii) above, on each Quarterly Date, as necessary to pay as and when due (x) to the Administrative Agent, any principal of (including Scheduled Amortization Payments) and premium, if any, on the Loans payable to the Lenders hereunder and (y) to each applicable Specified Swap Counterparty, termination payments payable by a Loan Party under Secured Swap Agreements, as set forth in the applicable Withdrawal Certificate (or, if applicable, direction from the Administrative Agent);
(iv) fourth, after giving effect to the withdrawals pursuant to clauses (i) through (iii) above, on each Quarterly Date and otherwise from time to time as necessary to pay as and when due to the Persons entitled thereto all indemnities and other amounts (other than interest, Fees, principal and premium) payable to the Lenders and Specified Swap Counterparties under the Loan Documents and Secured Swap Agreements, as set forth in the applicable Withdrawal Certificate (or, if applicable, direction from the Administrative Agent);
(v) fifth, after giving effect to the withdrawals pursuant to clauses (i) through (iv) above, on each Quarterly Date, as necessary to fund the Debt Service Reserve Account such that the amount on deposit and available therein (taking into account any Sponsor DSR Guaranty and Account DSR Letter of Credit credited thereto) is at least equal to the DSR Requirement Amount, as set forth in the applicable Withdrawal Certificate (or, if applicable, direction from the Administrative Agent);; and
(vi) sixth, at the option of the Borrower in its sole discretion, after giving effect to the withdrawals pursuant to clauses (i) through (v) above, on each Quarterly Date, to fund the Liquidity Reserve Account and/or the Local Accounts in the amount, if any, determined by the Borrower (in its sole discretion), as set forth in the applicable Withdrawal Certificate; provided that, in no event, shall the aggregate amount of monies on deposit (1) in the Liquidity Reserve Account, after giving effect to any such transfer, exceed the Liquidity Reserve Maximum Balance or (2) in the Liquidity Reserve Account together with monies on deposit in the Local Accounts, after giving effect to any such transfer, exceed [$***];
(vii) seventh, after giving effect to the withdrawals pursuant to clauses (i) through (vi) above, as set forth in the applicable Withdrawal Certificate:
(A) on each Quarterly Date, the Applicable ECF Percentage of Excess Cash Flow for the Excess Cash Flow Period ending on such Quarterly Date remaining on deposit in the Revenue Account shall be applied as follows: (x) if no Credit Support Reimbursement Obligations are then outstanding and unpaid, all such Excess Cash Flow shall be transferred to the ECF Prepayment Account and (y) if Credit Support Reimbursement Obligations are then outstanding and unpaid, such Excess Cash Flow shall be allocated pro rata (based on the aggregate amount of the outstanding principal of the Loans and the Credit Support Reimbursement Obligations then outstanding and unpaid on such Quarterly Date), with (1) the amount allocated to the Loans transferred to the ECF Prepayment Account and (2) the amount allocated to Credit Support Reimbursement Obligations transferred to an Affiliate of the Borrower as directed in the applicable Withdrawal Certificate to be applied to the payment or prepayment of such Credit Support Reimbursement Obligations; and
(B) in addition, on each Quarterly Date occurring in May (commencing with the Quarterly Date occurring in May 2022), if applicable, after giving effect to the payment(s) described in the immediately preceding clause (A) on such Quarterly Sweep Date, an amount necessary to pay as and when due all mandatory prepayments of funds remaining on deposit in the Revenue Account on such Quarterly Date equal Loans pursuant to the Target Balance Prepayment Amount for the applicable ECF Sweep Date shall be transferred to the ECF Prepayment Account; provided, that notwithstanding anything to the contrary in this clause (viiSection 2.09(c), to the extent any Credit Support Reimbursement Obligation remains outstanding for twelve (12) Quarterly Dates after the incurrence of such Credit Support Reimbursement Obligation, 100% of Excess Cash Flow remaining on deposit in the Revenue Account for the Excess Cash Flow Period ending on the last of such Quarterly Dates, and each Quarterly Date thereafter on which such Credit Support Reimbursement Obligation remains outstanding, shall be applied first to the payment of such Credit Support Reimbursement Obligation until such Credit Support Reimbursement Obligation is paid in full, and together with all interest then any remaining Excess Cash Flow after such application shall be applied as set forth above in this clause (vii); and
(viii) eighth, on each ECF Sweep Date (commencing with the ECF Sweep Date occurring in May 2022), so long as no Default or Event of Default has occurred and is continuing, any funds remaining on deposit in the Revenue Account after giving effect to the withdrawals pursuant to clauses (i) through (vii) above, shall be transferreddue thereon, as set forth in the applicable Withdrawal Certificate (including to Holding or its Affiliatesor, if applicable, direction from the Administrative Agent). If funds being disbursed at any time pursuant to clause (ii), (iii) or (iv) above are insufficient on any date to make the transfers and payments specified in the applicable Withdrawal Certificate, then the amounts in the Revenue Account at such level at such time shall be transferred to the Persons entitled thereto pro rata based on the respective amounts then due and payable to such Persons.
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