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
Sources: Credit Agreement (Gladstone Capital Corp), Credit Agreement (Gladstone Capital Corp), Fifth Amended and Restated Credit Agreement (Gladstone Capital 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:
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
Sources: 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. (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
Sources: Receivables Financing Agreement (BrightView Holdings, Inc.), Receivables Financing Agreement (BrightView Holdings, Inc.), Receivables Financing Agreement (BrightView Holdings, 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
Sources: Fifth Amended and Restated Credit Agreement (Gladstone Investment Corporation\de), Credit Agreement (Gladstone Investment Corporation\de), Credit Agreement (Gladstone Investment Corporation\de)
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 4 contracts
Sources: Receivables Financing Agreement (Concentrix Corp), Receivables Financing Agreement (Concentrix Corp), Receivables Financing Agreement (Concentrix 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
Sources: Receivables Financing Agreement (DCP Midstream, LP), Receivables Financing Agreement (DCP Midstream, LP), Receivables Financing Agreement (DCP Midstream, LP)
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
Sources: 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
Sources: 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, 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
Sources: 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, 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 3 contracts
Sources: Warehouse Agreement (Vroom, Inc.), Warehouse Agreement (Vroom, Inc.), Warehouse Agreement (Vroom, Inc.)
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 ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 ▇▇▇▇▇ 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
Sources: 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 ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 ▇▇▇▇▇ 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
Sources: Credit Agreement (Regional Management Corp.), Credit Agreement (Regional Management Corp.)
Settlement Procedures. On each Payment Distribution Date, the Servicer shall pay, or shall instruct a designee on its behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to pay, 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), (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”) Funds 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 Collectionsrelated Monthly Report:
(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) THIRDFirst, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for to the payment thereofextent not previously retained by the Servicer;
(ii) Second, pro rata (A) to the Servicer (including any Successor Servicer), the accrued and unpaid Servicing Fee and all Ancillary Fees to the extent not previously retained by the Servicer and (B) to any Successor Servicer, any out-of-pocket expenses and indemnities due to the Successor Servicer; provided, that aggregate amounts payable to any Successor Servicer pursuant to this clause may not exceed $100,000 in any calendar year;
(iii) Third, to the Backup Servicer, the Backup Servicing Fee, any out-of-pocket expenses that are reimbursable to the Backup Servicer pursuant to the Backup Servicing Agreement (including any Transition Expenses, but only if the Backup Servicer is not the Successor Servicer), and any indemnifiable amounts due to the Backup Servicer; provided, that Transition Expenses payable to the Backup Servicer pursuant to this clause may not exceed $100,000 in any calendar year;
(iv) FOURTHFourth, to the extent not paid by the ServicerAdministrative Agent, for further payment to the Backup Servicer and any Successor Servicereach Lender, as applicable, in an amount equal to the sum of (1) the portion of Monthly Interest and Fees due each Lender plus (2) 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 thereofBreakage Costs of any related Lender;
(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) SEVENTHFifth, to the Administrative Agent for further payment to each Managing Agentrelated Lender:
(I) during the Revolving Period, if the Maximum Advance Rate Test is not satisfied, to pay the Loans Outstanding for each Lender as of such date (pro rata, based on behalf each Lender’s Percentage) until the Maximum Advance Rate Test is satisfied (on a pro forma basis as at such Distribution Date);
(II) only with respect to available Principal Proceeds, during the Amortization Period, to pay all such available Principal Proceeds to pay the Loans Outstanding for each Lender (pro rata, based on each Lender’s Percentage) until paid in full; and
(III) if the Amortization Period has expired or an Early Amortization Event or Event of Default has occurred and is continuing, to pay the Loans Outstanding for each Lender (pro rata, based on each Lender’s Percentage) until paid in full;
(vi) Sixth, pro rata to any Hedge Counterparty (based on amounts due to any such Hedge Counterparty pursuant to this subclause), any net payments due and payable under the related Hedging Agreement (including any Hedge Breakage Costs);
(vii) Seventh, pro rata to the Administrative Agent (based on such amounts due) for further payment to each Lender or the related Indemnified Parties, all other Aggregate Unpaids (other than the principal amount of the related Lenders, in an amount equal Loans Outstanding) then due to any accrued the Lenders and unpaid Interest and Unused Fee for such Payment DateIndemnified Parties under this Agreement;
(viii) EIGHTHEighth, firstpro rata (based on such amounts due) to (A) the Successor Servicer, any fees, expenses (including Transition Expenses), and indemnities not paid pursuant to clause (ii), above, (B) the Backup Servicer, any fees, expenses (including Transition Expense), and indemnities not paid pursuant to clause (iii), above, and (C) the Account Bank, any reasonable fees and expenses owing to the Account Bank in connection with the maintenance of the Collection Account (to the extent of available Principal Collections, and second, such amounts have not previously been paid 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 Account Bank by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(sServicer)), 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;and
(ix) NINTH, to each Hedge CounterpartyNinth, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTHremaining amount shall be distributed to, to or as otherwise directed by, 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 2 contracts
Sources: Loan Agreement (Lendbuzz Inc.), Loan Agreement (Lendbuzz 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 ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 ▇▇▇▇▇ 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
Sources: Credit Agreement (Regional Management Corp.), Credit Agreement (Regional Management Corp.)
Settlement Procedures. On each Payment Distribution Date, the Servicer on behalf of shall instruct the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) Account Bank to pay, 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), (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”) Funds 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 Collectionsrelated Monthly Report:
(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) THIRDFirst, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for to the payment thereofextent not previously retained by the Servicer;
(ii) Second, pro rata (A) to the Servicer (including any Successor Servicer), the accrued and unpaid Servicing Fee and all Ancillary Fees to the extent not previously retained by the Servicer and (B) to any Successor Servicer, any out-of-pocket expenses and indemnities due to the Successor Servicer; provided, that aggregate amounts payable to any Successor Servicer pursuant to this clause may not exceed $100,000 in any calendar year;
(iii) Third, to the Backup Servicer, the Backup Servicing Fee, any out-of-pocket expenses that are reimbursable to the Backup Servicer pursuant to the Backup Servicing Agreement (including any Transition Expenses, but only if the Backup Servicer is not the Successor Servicer), and any indemnifiable amounts due to the Backup Servicer; provided, that Transition Expenses payable to the Backup Servicer pursuant to this clause may not exceed $100,000 in any calendar year;
(iv) FOURTHFourth, 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 pro rata (A) if to each Hedge Counterparty (based on amounts due to each Hedge Counterparty pursuant to this subclause), any net payments due and payable under the Servicer is Gladstone Management Corporation or any of its Affiliatesrelated Hedging Agreement (other than Hedge Breakage Costs), 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 Agent, for further 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 LendersLender, an amount equal to the excess, if any, of Advances Outstanding over the lesser sum of (i1) the Borrowing Base or portion of Monthly Interest and Fees due to each Lender plus (ii2) the Facility Amount, together with the amount of any Breakage Costs incurred by the applicable Lenders in connection with of any such payment related Lender;
(as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (iv) 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 onlyFifth, pro rata (A) to each Hedge Counterparty that has any due and payable Hedge Breakage Costs (other than Subordinated Hedge Breakage Costs), such Hedge Breakage Costs, and (B) to the Administrative Agent for further payment to each Lender,
(I) prior to the Commitment Termination Date, if a Borrowing Base Deficiency has occurred and is continuing, to pay the Loans Outstanding for each Lender as of such date (pro rata, based on each Lender’s Percentage) until such Borrowing Base Deficiency is cured (on a pro forma basis as at such Distribution Date); and
(II) on or after the Commitment Termination Date, to pay the Loans Outstanding for each Lender (pro rata, based on each Lender’s Percentage) until paid in accordance with their Advances Outstandingfull;
(ixvi) NINTHSixth, pro rata to each Hedge CounterpartyCounterparty that has any due and payable Subordinated Hedge Breakage Costs (based on such amounts due), any Swap such Subordinated Hedge Breakage and Indemnity Amounts owing that Hedge CounterpartyCosts;
(xvii) TENTHSeventh, to the Administrative Agent (based on such amounts due) for further payment to each Managing Agent, on behalf of Lender or the related LendersIndemnified Parties, 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 to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any)the Lenders and Indemnified Parties under this Agreement;
(xiviii) ELEVENTHEighth, pro rata (based on such amounts due) to (A) the Successor Servicer, any fees, expenses (including Transition Expenses), and indemnities not paid pursuant to clause (ii), above, (B) the Backup Servicer, any fees, expenses (including Transition Expense), and indemnities not paid pursuant to clause (iii), above, and (C) the Account Bank, any reasonable fees and expenses owing to the Swingline Lender, for Account Bank in connection with the portion maintenance of the Obligations constituting unpaid principal of Collection Account, the Swing Advances;Cash Reserve Account and the Hedge Reserve Account (to the extent such amounts have not previously been paid to the Account Bank by the Servicer); and
(ix) Ninth, any remaining amount shall be distributed to, or as otherwise directed by, the Borrower.
Appears in 2 contracts
Sources: Loan Agreement (Lendbuzz Inc.), Loan Agreement (Lendbuzz 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), 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 ▇▇▇▇▇▇, (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
Sources: 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) 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
Sources: 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 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
Sources: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Settlement Procedures. On each Payment Distribution Date, the Servicer on behalf of shall instruct the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) Account Bank to pay, 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), (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”) Funds 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 Collectionsrelated Monthly Report:
(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) THIRDFirst, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for to the payment thereofextent not previously retained by the Servicer;
(ii) Second, pro rata (A) to the Servicer (including any Successor Servicer), the accrued and unpaid Servicing Fee and all Ancillary Fees to the extent not previously retained by the Servicer and (B) to any Successor Servicer, any out-of-pocket expenses and indemnities due to the Successor Servicer; provided, that aggregate amounts payable to any Successor Servicer pursuant to this clause may not exceed $100,000 in any calendar year;
(iii) Third, to the Backup Servicer, the Backup Servicing Fee, any out-of-pocket expenses that are reimbursable to the Backup Servicer pursuant to the Backup Servicing Agreement (including any Transition Expenses, but only if the Backup Servicer is not the Successor Servicer), and any indemnifiable amounts due to the Backup Servicer; provided, that Transition Expenses payable to the Backup Servicer pursuant to this clause may not exceed $100,000 in any calendar year;
(iv) FOURTHFourth, 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 pro rata (A) if to each Hedge Counterparty (based on amounts due to each Hedge Counterparty pursuant to this subclause), any net payments due and payable under the Servicer is Gladstone Management Corporation or any of its Affiliatesrelated Hedging Agreement (other than Hedge Breakage Costs), 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 each Agent (based on amounts due to the end members of the preceding Settlement Period each Lender Group pursuant to this subclause), for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for further 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 LendersLender, an amount equal to the excesssum of (1) the portion of Senior Monthly Interest and Fees due to members of the related Lender Group plus (2) any Breakage Costs of any related Lender;
(v) Fifth, pro rata (A) to each Hedge Counterparty that has any due and payable Hedge Breakage Costs (other than Subordinated Hedge Breakage Costs), such Hedge Breakage Costs, and (B) to each Agent (based on Lender Percentage) for further payment to each related Lender, the Monthly Principal Payment Amount;
(vi) Sixth, 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 but a Partial Expiration Event has occurred, pro rata to each Agent for a Lender Group that includes a Non-Extending Lender (iibased on the Loans Outstanding to each such Non-Extending Lender) Advances for further payment to each related Non-Extending Lender, an amount equal to the product of (A) such Non-Extending Lender’s Invested Percentage as of its Commitment Termination Date times (B) all remaining Available Funds until the portion of the Loan Outstanding exceed owned by such Non-Extending Lender is reduced to zero;
(vii) Seventh, pro rata to each Agent (based on the Facility amount of the Subordinated Monthly Interest Payment Amount due to one or more Lenders becoming Non-Renewing Lendersmembers of the related Lender Group), for further payment to each Managing Agent on behalf of such Non-Renewing Lenders onlyrelated Lender, the Subordinated Monthly Interest Payment Amount;
(viii) Eighth, pro rata in accordance with their Advances Outstandingto each Hedge Counterparty that has any due and payable Subordinated Hedge Breakage Costs (based on such amounts due), such Subordinated Hedge Breakage Costs;
(ix) NINTHNinth, pro rata to each Hedge CounterpartyAgent (based on such amounts due) for further payment to the related Lender or the related Indemnified Parties, any Swap Breakage all other Aggregate Unpaids (other than the principal amount of the Loans Outstanding) then due to the Lenders and Indemnity Amounts owing that Hedge CounterpartyIndemnified Parties under this Agreement;
(x) TENTHTenth, pro rata (based on such amounts due) to (A) the Successor Servicer, any fees, expenses (including Transition Expenses), and indemnities not paid pursuant to clause (ii), above, (B) the Backup Servicer, any fees, expenses (including Transition Expense), and indemnities not paid pursuant to clause (iii), above, and (C) the Account Bank, any reasonable fees and expenses owing to the Administrative Agent for payment to each Managing Agent, on behalf Account Bank in connection with the maintenance of the related Lenders, in Collection Account (to the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect extent such amounts have not previously been paid to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if anythe Account Bank by the Servicer);; and
(xi) ELEVENTHEleventh, to any remaining amount shall be distributed to, or as otherwise directed by, the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;Borrower.
Appears in 2 contracts
Sources: Loan Agreement (Lendbuzz Inc.), Loan Agreement (Lendbuzz Inc.)
Settlement Procedures. On each Payment Date(a) So long as the Administrative Agent has not taken exclusive dominion and control of the Collection Accounts pursuant to Section 8.03, the Servicer on behalf shall set aside and hold in trust for the benefit of the Borrower shall pay for receipt Secured Parties (or, if so requested by the applicable Lender no later than 11:00 a.m. (New York City time) Administrative Agent during an Event of Default, 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 5.03 are satisfied on such date, the Servicer may release to the following Persons, Borrower from such Collections the amount (if any) necessary to pay (i) the Collection Account, to purchase price for Receivables purchased by the extent Borrower on such date in accordance with the terms of available funds, the Sale and Contribution Agreement or (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (owing by the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited Borrower to the Revolver Loan Funding Originators under the Subordinated Loans (each such release, a “Release”). On each Settlement Date, so long as the Administrative Agent has not taken exclusive dominion and control of the Collections Accounts in accordance with pursuant to Section 2.14 below being 8.03, the “Available Collections”Servicer (or, following its assumption of exclusive dominion and control of the Collection Accounts, the Administrative Agent) the following amounts shall, distribute such 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 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 4.03 and 11.01 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 2 contracts
Sources: Receivables Financing Agreement (Evoqua Water Technologies Corp.), Receivables Financing Agreement (Evoqua Water Technologies Corp.)
Settlement Procedures. (a) The Servicer shall set aside and hold in trust in the Collateral Accounts for the benefit of the Secured Parties (or, if so requested by the Administrative Agent during the existence of an Event of Default, 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 that are received by the Servicer or the Borrower or received in any Collateral Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on any date, 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 on such date in accordance with the terms of the Borrower Receivables Purchase Agreement (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 Collateral 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
Sources: Receivables Financing Agreement (Exact Sciences Corp)
Settlement Procedures. On each Payment Date, the Servicer on behalf of shall instruct the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) Account Bank to pay, 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), (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”) Funds 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 Collections:
related Monthly Report: (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) THIRDFirst, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid previously retained by the Servicer; (ii) Second, to the Backup Servicer, the Backup Servicing Fee, any out-of-pocket expenses that are reimbursable to the Backup Servicer pursuant to the Backup Servicing Agreement (including any Transition Expenses, but only if the Backup Servicer is not the Successor Servicer), and any indemnifiable amounts due to the Backup Servicer; provided, that Transition Expenses payable to the Backup Servicer pursuant to this clause may not exceed $100,000 in any calendar year; (iii) Third, pro rata (A) to the Servicer (including any Successor Servicer), the accrued and unpaid Servicing Fee and all Ancillary Fees to the extent not previously retained by the Servicer and (B) to any Successor Servicer, as applicableany out-of-pocket expenses and indemnities due to the Successor Servicer; provided, in an amount equal 56 that aggregate amounts payable to any accrued and unpaid Backup Servicing Fee andSuccessor Servicer pursuant to this clause may not exceed $100,000 in any calendar year; (iv) Fourth, 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 pro rata (A) if to each Hedge Counterparty (based on amounts due to each Hedge Counterparty pursuant to this subclause), any net payments due and payable under the Servicer is Gladstone Management Corporation or any of its Affiliatesrelated Hedging Agreement (other than Hedge Breakage Costs), 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 (based on amounts due to the members of each Lender Group pursuant to this subclause), for further 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 LendersLender, an amount equal to the excesssum of (1) the portion of Senior Monthly Interest and Fees due to members of the related Lender Group plus (2) any Breakage Costs of any Lender; (v) Fifth, pro rata (A) to each Hedge Counterparty that has any due and payable Hedge Breakage Costs (other than Subordinated Hedge Breakage Costs), such Hedge Breakage Costs, and (B) to the Administrative Agent (based on Lender Percentage) for further payment to each Lender, the Monthly Principal Payment Amount; (vi) Sixth, 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 but a Partial Expiration Event has occurred, pro rata to the Facility Amount due to one or more Lenders becoming Administrative Agent for a Lender Group that includes a Non-Renewing Lenders, Extending Lender (based on the Loans Outstanding to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ixExtending Lender) NINTH, for further payment to each Hedge CounterpartyNon-Extending Lender, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
an amount equal to the product of (xA) TENTHsuch Non-Extending Lender's Invested Percentage as of its Commitment Termination Date times (B) all remaining Available Funds until the portion of the Loan Outstanding owned by such Non-Extending Lender is reduced to zero; (vii) Seventh, to the Administrative Agent (based on the amount of the Subordinated Monthly Interest Payment Amount due to members of the related Lender Group), for further payment to each Managing AgentLender, on behalf of the related LendersSubordinated Monthly Interest Payment Amount; (viii) Eighth, in the amount of unpaid pro rata to each Hedge Counterparty that has any due and payable Subordinated Hedge Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made based on such Payment Date Increased amounts due), such Subordinated Hedge Breakage Costs, and/or Taxes ; (if any);
(xiix) ELEVENTHNinth, to the Swingline LenderAdministrative Agent (based on such amounts due) for further payment to each Lender or the related Indemnified Parties, for all other Aggregate Unpaids (other than the portion principal amount of the Obligations constituting unpaid principal of Loans Outstanding) then due to the Swing Advances;Lenders and Indemnified Parties under this Agreement; (x) Tenth, pro rata (based on such amounts due) to the Backup Servicer and the Successor Servicer, any fees, expenses (including Transition Expenses) and indemnities not paid pursuant to clauses (ii) or (iii), above, as applicable; and 57
Appears in 1 contract
Sources: Loan Agreement (Lithia Motors 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;
(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. (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:
(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 Servicer 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 of available Principal Collections, and such amount has not been distributed to the Servicer); (ii) second, to each Lender and other Credit Party (ratably, based on the extent 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 available Interest Collectionssuch payments), to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excessplus, 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 any such payment Interest, Fees and Breakage Fees (as including any additional amounts or indemnified amounts payable under Sections 4.03 and 12.01 in respect of such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that payments) payable for any 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 been distributed to one such Lender 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 OutstandingCredit Party;
(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
Sources: Receivables Financing Agreement (Applied Industrial Technologies 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. 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. (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, Minimum Utilization Payment 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) 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 (including up-front, continuing or success fees) received in respect of Servicing Fees payable for any prior Settlement Period to the Transferred Loansextent such amount has not been distributed to the Servicer);
(ii) SECONDsecond, to each Hedge CounterpartyCredit 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 any additional amounts owing that Hedge Counterparty or indemnified amounts payable under its respective Hedging Agreement Section 5.03 and Section 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 Section 5.03 and Section 13.01 in respect of such payments) payable for the payment thereof, but excluding, any prior Settlement 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 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 1 contract
Sources: 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, 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:
(ai) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, to each Purchaser and other Credit Party (ratably, based on the amount then Principal Collections:
(i) FIRSTdue and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Purchaser and other Credit Party for the Borrower, the aggregate amount of fees immediately preceding Interest Period (including up-front, continuing any additional amounts or success fees) received indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the Transferred Loansamount 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 amount has not been paid to such Purchaser or Credit Party;
(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 for the immediately preceding Interest Period (plus, but excludingif applicable, the amount of Servicing Fees payable 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 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 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
Sources: Credit Agreement (Gladstone Investment Corporation\de)
Settlement Procedures. On (a) So long as the Administrative Agent has not taken dominion and control of the Collection Accounts pursuant to this Agreement and/or the applicable Account Control Agreements, the Servicer shall hold in trust for the Administrative Agent, for the benefit of the Secured Parties (or, if so requested by the Administrative Agent after an Event of Default or Ratings Event I, segregate in a separate account designated by the Administrative Agent, which shall be an account maintained and/or 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 SPE 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 any given date, then on such date, the Servicer may: (A) release to the SPE from Collections received on SPE Collateral the amount (if any) necessary for the SPE to pay the cash purchase price for Receivables purchased by the SPE from the Pledgor on or after such date in accordance with the terms of the Second Tier Transfer Agreement (in addition to any proceeds of Investments or Loans or other cash assets of the SPE that may be used to fund any such purchases), subject to clause (1) below; (B) release to the SPE all or a portion of Collections received on Sold Assets in exchange for the SPE designating an equivalent amount (based on aggregate Outstanding Balances) of Unsold Receivables as new Sold Receivables on the SPE’s books and records and by identifying such Receivables in an Investment/Loan Request pursuant to Section 2.01(e), which new Sold Receivables will be automatically and immediately sold by the SPE to the Administrative Agent (for the ratable benefit of the Purchaser/Lenders) pursuant to Section 2.01(b) upon such release and designation, subject to clause (2) below; (C) release to the SPE from Collections received on SPE Collateral the amount determined by the SPE (or the Servicer on its behalf) to pay as a distribution, dividend or return of capital to its equity owners on or after such date pursuant to the organizational documents of the SPE, subject to clause (3) below (each such release of Collections described in clauses (A), (B) and (C) above, a “Release,” and the funds so released, “Released Funds”); provided, further, that each such Release shall be subject to the conditions in Section 5.03 and the following Release requirements: 323755005.17
(1) Any Release pursuant to the foregoing clause (A) shall be made to the account specified in the Payment DateDirection (as defined therein) under the Second Tier Transfer Agreement;
(2) Any Release pursuant to the foregoing clause (B) shall be made to an SPE-owned account specified by the SPE (or the Servicer on its behalf), and any such Released Funds may be used by the SPE for either of the following purposes:
(A) to purchase more Receivables pursuant to the Second Tier Transfer Agreement; or
(B) to pay a distribution, dividend or return of capital to its equity owners, free of any trust obligation, security interest or other Lien or restriction hereunder (including without limitation under Section 7.01(r) except for the minimum Net Worth provision of Section 7.01(r)(ii)) or under any other Transaction Documents, but subject in the case of this subclause (B) to: (x) the representation and warranty by the SPE that, to the knowledge of the SPE, all of the conditions of Section 5.03 are true and correct as to such Release as of the date thereof, and (y) the right of the Administrative Agent in its sole discretion to require Daily Pool Reports pursuant to Section 7.01(c)(ii); and
(3) Any Release pursuant to the foregoing clause (C) shall be made to an SPE-owned account or a Permitted Linked Account, in each case as designated by the SPE (or the Servicer on behalf of the Borrower SPE); provided, that:
(A) if such Release is made to a Permitted Linked Account, such Released Funds shall pay be held in trust in such account for receipt the Administrative Agent, for the benefit of the Secured Parties, and may be commingled in such account until the next succeeding Settlement Date, when they shall be remitted by the applicable Lender no later than 11:00 a.m. (New York City time) Servicer to the following Personsrelated Collection Account (i.e., from to which such Permitted Linked Account is linked as a Linked Account at the same Collection Account Bank) solely to the extent and up to the amount necessary to fund any amounts owed pursuant to clauses (i) through (iv) below of this Section 3.01(a) that were not paid from funds then available in the Collection Accounts as of such Settlement Date (a “Settlement Date Deficiency”), and any such Released Funds not so needed to fund a Settlement Date Deficiency may be released from the applicable Permitted Linked Account free of any trust obligation, security interest or other Lien or restriction hereunder (including without limitation under Section 7.01(r) except for the minimum Net Worth provision of Section 7.01(r)(ii)) or under any other Transaction Documents; and
(B) if such Release is not made to a Permitted Linked Account, such Release may be made free of any trust obligation, security interest or other Lien or 323755005.17 restriction hereunder (including without limitation under Section 7.01(r) except for the minimum Net Worth provision of Section 7.01(r)(ii)) or under any other Transaction Documents, but subject in the case of this subclause (B) to: (x) the representation and warranty by the SPE that, to the extent knowledge of available fundsthe SPE, (ii) Servicer Advancesall of the conditions of Section 5.03 are true and correct as to such Release as of the date thereof, 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”y) the right of the Administrative Agent in its sole discretion to require Daily Pool Reports pursuant to Section 7.01(c)(ii). On each Settlement Date, the Servicer (so long as the Administrative Agent has not taken exclusive control of the Collection Accounts pursuant to this Agreement and/or the applicable Account Control Agreements) shall distribute such Collections (or, following amounts its assumption of exclusive control of the Collection Accounts, the Administrative Agent shall distribute all Collections then on deposit in the Collection 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) FIRSTfirst, to the Borrower, Servicer for the aggregate amount payment of fees all unpaid Servicing Fees accrued up to (including up-front, continuing or success feesbut not including) received in respect of the Transferred Loanssuch Settlement Date;
(ii) SECONDsecond, to each Hedge CounterpartyPurchaser/Lender and other Purchaser/Lender Party (ratably, based on the amount then due and owing), (w) all unpaid Yield accrued on such Purchaser/Lender’s Capital with respect to the Yield Period most recently ended prior to such Settlement Date, (x) all unpaid Fees accrued up to (but not including) such Settlement Date, (y) any indemnity payments under Section 4.02 due to such Purchaser/Lender and other Purchaser/Lender Party, and (z) any additional amounts owing that Hedge Counterparty or indemnified amounts payable under its respective Hedging Agreement Sections 4.03 and 11.01 in respect of such payments;
(iii) third, as set forth in clause (A), (B) or (C) below, as applicable:
(A) prior to the occurrence of the Final Maturity Date, to the extent that a Capital Coverage Amount Deficit exists on such Settlement Date, to the Purchaser/Lenders (ratably, based on the aggregate outstanding Capital of each Purchaser/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 Capital Coverage Amount Deficit to zero ($0);
(B) on and after the occurrence of the Final Maturity Date, to each Purchaser/Lender (ratably, based on the aggregate outstanding Capital of each Purchaser/Lender at such time) for the payment in full of the aggregate outstanding Capital of such Purchaser/Lender at such time; or
(C) prior to the occurrence of the Final Maturity Date, at the election of the SPE and in accordance with Section 2.03(d), to the payment of all or any Hedge Transaction(sportion of the outstanding Capital of the Purchaser/Lenders at such time (ratably, based on the aggregate outstanding Capital of each Purchaser/Lender at such time);
(iv) fourth, to the Secured Parties (ratably, based on the amount due and owing at such time), for the payment thereof, but excluding, of all other SPE Obligations other than Capital that are then due and owing by the SPE to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;Secured Parties; 323755005.17
(iiiv) THIRDfifth, 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 andbalance, if any, accrued and unpaid Transition Coststo be paid to the SPE for its own account, Backup Servicer Expenses and Market Servicing Fee Differential, each including for the payment thereof;
(v) FIFTHpurpose of any Release permitted hereunder or any Restricted Payment permitted under Section 7.01(r). For the avoidance of doubt, the amounts payable at each level of priority above include all such amounts at such level of priority, whether attributable to Investments, Investment Capital, Loans or Loan Capital, on a pari passu basis. To the extent not paid by the Servicerpayable in respect of Investment Capital or Yield, Fees or other amounts attributable to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian ExpensesInvestment Capital, 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 amounts payable pursuant to each Managing Agent, of clauses first through fourth above shall be paid (at each level of priority) first from available Collections on behalf of the related Lenders, in an amount equal to any accrued Sold Receivables and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collectionsother Sold Assets, and second, to the extent necessary in order to make all such payments at such level of available Interest Collectionspriority in full, from Collections on Unsold Receivables and other SPE Collateral. The SPE’s right to receive payments (if any) from time to time pursuant to clause fifth above shall, to the extent arising from Collections on Sold Receivables, constitute compensation to the SPE for the SPE’s provision of the SPE Guaranty and the Purchaser/Lender Parties’ Sold Assets and the SPE Collateral. To the extent payable in respect of Loan Capital or Yield, Fees or other amounts attributable to Loan Capital, amounts payable pursuant to each of clauses first through fourth above shall be paid (at each level of priority) first from available Collections on Unsold Receivables and other SPE Collateral, and second, to the extent necessary in order to make all such payments at such level of priority in full, from Collections on Sold Receivables and other Sold Assets. Any such allocation of Collections at each level of priority pursuant to the foregoing two sentences of this paragraph shall be made by the SPE (or the Servicer on its behalf), and neither the Administrative Agent for payment nor any Purchaser/Lender shall have any responsibility to each Managing Agentmake, on behalf or maintain records of, any such allocation. For the avoidance of the related Lenders, an amount equal doubt and notwithstanding anything to the excesscontrary herein, if any, nothing in this paragraph shall be construed to override or otherwise modify the priority of Advances Outstanding over the lesser of payments set forth in clauses (i) through (v) above.
(a) All payments or distributions to be made by the Borrowing Base Servicer, the SPE and any other Person to any Purchaser/Lender Party (or its respective related Secured Parties), shall be paid or distributed to such Purchaser/Lender Party.
(b) If and to the extent the Administrative Agent or any other Secured Party shall be required for any reason to pay over to any Person (including any Obligor or any trustee, receiver, custodian or similar official in any Relief Proceeding) 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 SPE and, accordingly, the Administrative Agent or such other Secured Party, as the case may be, shall have a claim against the SPE for such amount.
(c) For the purposes of this Section 3.01:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of (A) any defective, rejected, returned, repossessed or foreclosed goods or services, (B) any revision, cancellation, allowance, rebate, credit memo, discount or other adjustment made by any SPE-Related Party (other than, with respect to Sold Receivables, as a result of a Credit Event (as defined in either Transfer Agreement)), or (C) any setoff, counterclaim or dispute between or among the Pledgor, the SPE or any Affiliate of the SPE, an Originator or any Affiliate of an Originator, or 323755005.17 Servicer or any Affiliate of the Servicer, and an Obligor, the SPE shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment (Collections deemed to have been received pursuant to this Section 3.01(d)(i) are hereinafter sometimes referred to as a “Dilution”);
(ii) if on any day any of the representations or warranties in Section 6.01 is not true with respect to any Pool Receivable (other than, with respect to Sold Receivables, as a result of a Credit Event (as defined in either Transfer Agreement)), the SPE shall be deemed to have received on such day a Collection of such Pool Receivable in full (Collections deemed to have been received pursuant to Sections 3.01(d)(i) and 3.01(d)(ii), including any Dilution, 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 Facility Amountrelevant Contract, together with all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor following the Servicer’s existing cash application processes in effect at such time;
(iv) if and to the extent the Administrative Agent or any other Secured Party shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Relief Proceeding) any amount of Breakage Costs incurred 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 applicable Lenders in connection with any SPE and, accordingly, such payment (as Person shall have a claim against the SPE for 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 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;respect thereof; and
(ixv) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment extent the SPE receives or is deemed to each Managing Agentreceive any Deemed Collection pursuant to Section 3.01(d)(i) and 3.01(d)(ii) above, on behalf of if a Capital Coverage Amount Deficit shall exist at the related Lenderstime the SPE is deemed to have received such Deemed Collection, or after giving effect to the event giving rise to such Deemed Collection, the SPE shall deposit an amount necessary to eliminate any Capital Coverage Amount Deficit that exists at such time in the Collection Account (and to the extent necessary to deposit any such amount request any corresponding amount owing from an Originator or Servicer to the SPE to the extent such Originator or the Servicer is responsible for the event giving rise to such Deemed Collection); provided, that for the avoidance of unpaid Breakage Costs doubt, this clause (v) is not intended to, and shall not, directly or indirectly, impose any obligation on any Originator, the Servicer or any of their respective Affiliates (other than Breakage Costs covered in clause (viithe SPE) above) with respect to the extent such obligation would constitute recourse to any prepayments made on such Payment Date Increased CostsOriginator, and/or Taxes the Servicer or any of their respective Affiliates (if anyother than the SPE) for non-payment or delay in payment of any Pool Receivables by reason of a Credit Event (as defined in either Transfer Agreement);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;.
Appears in 1 contract
Sources: Receivables Purchase and Financing Agreement (Ati Inc)
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
Sources: 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
Sources: 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. (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) 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 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, 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 InterestAccrual 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 InterestAccrual 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 Interest, Fees and Unused Fee Breakage Fees due to such Lender and other Credit Party for the immediately preceding InterestAccrual Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such Payment Datepayments), 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 InterestAccrual Period to the extent such amount 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
Sources: Receivables Financing Agreement (Owens & Minor Inc/Va/)
Settlement Procedures. On each Payment Date, the Servicer on behalf of shall instruct the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) Account Bank to pay, 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), (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”) Funds 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 Collections:
related Monthly Report: (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) THIRDFirst, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid previously retained by the Servicer; (ii) Second, to the Backup Servicer, the Backup Servicing Fee, any out-of-pocket expenses that are reimbursable to the Backup Servicer pursuant to the Backup Servicing Agreement (including any Transition Expenses, but only if the Backup Servicer is not the Successor Servicer), and any indemnifiable amounts due to the Backup Servicer; provided, that Transition Expenses payable to the Backup Servicer pursuant to this clause may not exceed $100,000 in any calendar year; (iii) Third, pro rata (A) to the Servicer (including any Successor Servicer), the accrued and unpaid Servicing Fee and all Ancillary Fees to the extent not previously retained by the Servicer and (B) to any Successor Servicer, as applicableany out-of-pocket expenses and indemnities due to the Successor Servicer; provided, in an amount equal that aggregate amounts payable to any accrued and unpaid Backup Servicing Fee andSuccessor Servicer pursuant to this clause may not exceed $100,000 in any calendar year; (iv) Fourth, 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 pro rata (A) if to each Hedge Counterparty (based on amounts due to each Hedge Counterparty pursuant to this subclause), any net payments due and payable under the Servicer is Gladstone Management Corporation or any of its Affiliatesrelated Hedging Agreement (other than Hedge Breakage Costs), 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 each Agent (based on amounts due to the end members of the preceding Settlement Period each Lender Group pursuant to this subclause), for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for further 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 LendersLender, an amount equal to the excesssum of (1) the portion of Senior Monthly Interest and Fees due to members of the related Lender Group plus (2) any Breakage Costs of any related Lender; (v) Fifth, pro rata (A) to each Hedge Counterparty that has any due and payable Hedge Breakage Costs (other than Subordinated Hedge Breakage Costs), such Hedge Breakage Costs, and (B) to each Agent (based on Lender Percentage) for further payment to each related Lender, the Monthly Principal Payment Amount; (vi) Sixth, 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 but a Partial Expiration Event has occurred, pro rata to one or more Lenders becoming each Agent for a Lender Group that includes a Non-Renewing Lenders, Extending Lender (based on the Loans Outstanding to each Managing Agent on behalf such Non- Extending Lender) for further payment to each related Non-Extending Lender, an amount equal to the product of (A) such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
Extending Lender's Invested Percentage as of its Commitment Termination Date times (ixB) 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;all remaining Available Funds until
Appears in 1 contract
Sources: Loan Agreement (Lithia Motors 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) 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
Sources: Receivables Financing Agreement (Ingersoll Rand Inc.)
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
Sources: Credit Agreement (Gladstone Investment Corporation\de)
Settlement Procedures. (a) On each Payment Distribution Date, the Servicer on behalf of shall instruct the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) Account Bank to pay, 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), (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 “Pool 1 Available Collections”) Funds 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 Collectionsrelated Monthly Report:
(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) THIRDFirst, to the Servicer, in an amount equal to any Unreimbursed Servicer AdvancesAdvances related to Pool 1 Receivables, for to the payment thereofextent not previously retained by the Servicer;
(ii) Second, pro rata (A) to the Servicer (including any Successor Servicer), the accrued and unpaid Pool 1 Servicing Fee Payment and all Ancillary Fees related to Pool 1 Receivables to the extent not previously retained by the Servicer and (B) to any Successor Servicer, any out-of-pocket expenses and indemnities due to the Successor Servicer; provided, that aggregate amounts payable to any Successor Servicer pursuant to this clause, together with amounts paid pursuant to Sections 2.07(b)(ii), 2.07(c)(ii), 2.07(d)(ii), and 2.07(e)(ii), may not exceed $100,000 in any calendar year;
(iii) Third, to the Backup Servicer, the Pool 1 Backup Servicing Fee Payment, any out-of-pocket expenses that are reimbursable to the Backup Servicer pursuant to the Backup Servicing Agreement (including any Transition Expenses, but only if the Backup Servicer is not the Successor Servicer) that are related to the Pool 1 Receivables, and an amount equal to the product of (A) the Pool 1 Allocation Percentage times (B) any indemnifiable amounts due to the Backup Servicer; provided, that Transition Expenses payable to the Backup Servicer pursuant to this clause, together with amounts paid pursuant to Sections 2.07(b)(iii), 2.07(c)(iii), 2.07(d)(iii), and 2.07(e)(iii), may not exceed $100,000 in any calendar year;
(iv) FOURTHFourth, 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 pro rata (A) if to each Hedge Counterparty (based on amounts due to each Hedge Counterparty pursuant to this subclause), any net payments due and payable under the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees related Hedging Agreement relating to the end of the preceding Settlement PeriodPool 1 Receivables (other than Hedge Breakage Costs), 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 each Agent (based on amounts due to the end members of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, each Lender Group with respect to the Administrative Agent Pool 1 Loan pursuant to this subclause), for further 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, Lender with respect 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 LendersPool 1 Loan, an amount equal to the excessportion of Pool 1 Senior Monthly Interest and Fees due to members of the related Lender Group;
(v) Fifth, if anypro rata (A) to each Hedge Counterparty that has any due and payable Hedge Breakage Costs under a Hedging Agreement relating to the Pool 1 Receivables (other than Subordinated Hedge Breakage Costs), of Advances Outstanding over such Hedge Breakage Costs, and (B) to each Agent (pro rata, based on each Lender’s Lender Advance with respect to the lesser of Pool 1 Loan) for further payment to each related Lender with respect to the Pool 1 Loan, the Pool 1 Monthly Principal Payment Amount;
(ivi) the Borrowing Base or Sixth, pro rata to each Agent (ii) the Facility Amount, together with based on 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 Pool 1 Subordinated Monthly Interest Payment Amount due to one or more Lenders becoming Non-Renewing Lendersmembers of the related Lender Group), for further payment to each related Lender with respect to the Pool 1 Loan, the Pool 1 Subordinated Monthly Interest Payment Amount;
(vii) Seventh, pro rata to each Hedge Counterparty that has any due and payable Subordinated Hedge Breakage Costs under a Hedging Agreement relating to the Pool 1 Receivables (based on such amounts due), such Subordinated Hedge Breakage Costs;
(viii) Eighth, to each Managing Agent (pro rata, based on behalf of such Noneach Lender’s Lender Advance) for further payment to each related Lender with respect to the Pool 2 Loan, the Pool 3 Loan, the Pool 4 Loan, and the Pool 5 Loan, as required, the Pool 1 Cross-Renewing Lenders only, pro rata in accordance with their Advances OutstandingCollateralization Amount;
(ix) NINTHNinth, pro rata to each Hedge CounterpartyAgent (based on such amounts due) for further payment to the related Lender or the related Indemnified Parties, any Swap Breakage all other Aggregate Unpaids related to the Pool 1 Loan and/or the Pool 1 Receivables (other than the principal amount of the Pool 1 Loan Outstanding) then due to the Lenders with respect to the Pool 1 Loan and Indemnity Amounts owing that Hedge CounterpartyIndemnified Parties under this Agreement;
(x) TENTHTenth, pro rata (based on such amounts due) to each of the following Persons an amount equal to the Administrative Agent for payment to each Managing Agent, on behalf product of the Pool 1 Allocation Percentage multiplied by the related Lenders, in the amount of unpaid Breakage Costs due: (other than Breakage Costs covered in clause (viiA) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline LenderSuccessor Servicer, for the portion of the Obligations constituting unpaid principal of the Swing Advances;any fees, expenses (including Transition Expenses), and indemnities not paid pursuant to clause
Appears in 1 contract
Sources: Loan Agreement (Lendbuzz Inc.)
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
Sources: 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, 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 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
Sources: Loan Purchase and Servicing Agreement (First International Bancorp Inc)
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, 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. (b) 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 Principal 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, pursuant 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 ServicerSection 2.7(a)(1), 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 Section 2.7(a)(1), this Section 2.7(b)(1) and Collateral Custodian Expenses, if any, for the payment thereof;
Section 2.8(1) shall not exceed $100,000 per annum; (vi2) SIXTH, to the Servicerextent not paid pursuant to Section 2.7(a)(2), pro rata to each 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 such Lender’s share of the Non-Usage Fee for the related Accrual Period and any USActive 37382726.2937382726.32 55 unpaid Servicing Non-Usage Fees for previous Accrual Periods and (C) any unpaid Breakage Costs with respect to such Lender; (3) to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTHextent 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 Interest and Unused Fee for such Payment Date;
Commitment Reduction Fee; (viii6) EIGHTHduring the Revolving Period, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment (x) to each Managing Agent, on behalf of the related Lenders, Non-Extending Lender to pay Advances Outstanding in an amount equal to the excessPro Rata Share of such Non-Extending Lender and (y) the remainder as directed by the Collateral Manager, if anyto (A) repay Advances Outstanding, (B) return cash to the Principal Collection Account for application in accordance with 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 over Outstanding; (9) to the lesser of 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 remain in the Principal 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).
(c) The Collateral Manager may, in its sole discretion, direct the Collateral Custodian to make a payment to the 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 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 Availability is greater than zero and (ii) Advances Outstanding exceed the Facility Amount due to one no Default, Event of Default 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;
Curable BDC Asset Coverage Event has occurred and is continuing. USActive 37382726.2937382726.32 56 (ixd) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, Subject to the Administrative Agent for payment to each Managing Agent, on behalf 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 1 contract
Sources: Loan and Security Agreement (New Mountain Finance Corp)
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
Sources: Credit Agreement (Capitalsource 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. 2:00 p.m. (New York City time) to ), the following PersonsAdministrative Agent, based solely on the Monthly Report delivered for the most recent Reporting Date (upon which the Administrative Agent may conclusively rely), shall, from (i) amounts on deposit in the Collection AccountAccount (including, to the extent of available fundswithout limitation, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Servicer Advances) 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 PeriodInitial Period and so long as no Rapid Amortization Event has occurred and is continuing, and in each case unless otherwise specified below, applying Available Collections (which, unless otherwise expressly provided below, shall be applied first from Available Collections constituting Interest Collections firstuntil such Interest Collections are reduced to zero, and then second from Available Collections constituting 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, 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, Servicer in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(ivii) 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) SIXTHSecond, 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;
(viiiii) SEVENTHThird, 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 Collateral Custodian in an amount equal to any accrued and unpaid (including with respect to prior Payment Dates) Collateral Custodian Fees and Expenses, if any, for the payment thereof in an aggregate amount under this clause (B), excluding Collateral Custodian Fees, not to exceed the Collateral Custodian Expense Cap, and (C) to the Administrative Agent for payment Agent, in an amount equal to any accrued and unpaid Administrative Expenses;
(iv) Fourth, ratably 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 DateDate owing to such Lender;
(viiiv) EIGHTHFifth, first, (A) if such Payment Date occurs on or prior to the extent one year anniversary of available Principal Collections, the Effective Date and second, if as of such Payment Date there are twenty (20) or more Obligors that are not Affiliates with respect to the extent of available Interest CollectionsEligible Loans included in the Collateral, to the Administrative Agent for payment ratably to each Managing Agent, on behalf of the related LendersLender to reduce Advances Outstanding, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) minimum amount necessary to cause the Borrowing Base Test and the Minimum Equity Amount Test to be satisfied or (iiB) if such Payment Date occurs after the one year anniversary of the Effective Date or if as of such Payment Date there are less than twenty (20) but more than fourteen (14) Obligors that are not Affiliates with respect to the Eligible Loans included in the Collateral, ratably to each Lender to reduce Advances Outstanding, an amount equal to the greater of (1) the Facility Amountminimum amount necessary to cause the Borrowing Base Test and the Minimum Equity Amount Test to be satisfied and (2) the sum of (x) 58% of any remaining Available Collections constituting Principal Collections, together with plus (y) 50% of any remaining Available Collections constituting Principal Collections after giving effect to the foregoing clause (x);
(vi) Sixth, ratably, to any Successor Servicer, as applicable, and the Collateral Custodian in an amount equal to all other amounts then due under this Agreement or any other Transaction Document to any Successor Servicer and the Collateral Custodian (including Collateral Custodian Fees and Expenses), in each case to the extent not paid pursuant to clause Third above;
(vii) Seventh, ratably to each Lender, in the amount of Increased Costs, Breakage Costs incurred by the applicable Lenders in connection with any and/or Taxes (if any) owing to such payment Lender;
(as such Breakage Costs are notified viii) Eighth, ratably to the Borrower by Administrative Agent, the applicable Lender(s))Lenders, pro rata; providedthe Affected Parties and Indemnified Parties, however, that all other amounts or Obligations then due under this Agreement or the other Transaction Documents to the extent that (i) Administrative Agent, 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 the Affected Parties or Indemnified Parties, each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstandingfor the payment thereof;
(ix) NINTHNinth, to each Hedge Counterpartythe Servicer, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;all other amounts then due under this Agreement or the other Transaction Documents to the Servicer, for the payment thereof; and
(x) TENTHTenth, all remaining amounts to the Borrower as directed in writing by the Borrower.
(b) During the Amortization Period or following the occurrence and during the continuance of a Rapid Amortization Event, 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 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 Collateral Custodian in an amount equal to any accrued and unpaid (including with respect to prior Payment Dates) Collateral Custodian Fees and Expenses, if any, for the payment thereof, and (C) to the Administrative Agent for payment Agent, in an amount equal to any accrued and unpaid Administrative Expenses;
(iv) Fourth, ratably to each Managing AgentLender, on behalf of in an amount equal to any accrued and unpaid Interest for such Payment Date owing to such Lender;
(v) Fifth, ratably to each Lender, in an amount to reduce Advances Outstanding to zero;
(vi) Sixth, 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 related Lendersextent not paid pursuant to clause Third above;
(vii) Seventh, ratably to each Lender, 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)) owing to such Lender;
(xiviii) ELEVENTHEighth, ratably 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;
(ix) Ninth, to the Swingline LenderServicer, all other amounts then due under this Agreement or the other Transaction Documents to the Servicer, for the portion of payment thereof; and
(x) Tenth, all remaining amounts to the Obligations constituting unpaid principal of Borrower as directed in writing by the Swing Advances;Borrower.
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) 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 ▇▇▇▇▇▇, (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 ▇▇▇▇▇▇▇▇ 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
Sources: Loan, Security and Investment Management Agreement (Investcorp Credit Management BDC, 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;
(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. 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 on behalf of shall instruct the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) Account Bank to pay, 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), (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”) Funds 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 Collections:
related Monthly Report: (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) THIRDFirst, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid previously retained by the Servicer; (ii) Second, to the Backup Servicer, the Backup Servicing Fee, any out-of-pocket expenses that are reimbursable to the Backup Servicer pursuant to the Backup Servicing Agreement (including any Transition Expenses, but only if the Backup Servicer is not the Successor Servicer), and any indemnifiable amounts due to the Backup Servicer; provided, that Transition Expenses payable to the Backup Servicer pursuant to this clause may not exceed $100,000 in any calendar year; (iii) Third, pro rata (A) to the Servicer (including any Successor Servicer), the accrued and unpaid Servicing Fee and all Ancillary Fees to the extent not previously retained by the Servicer and (B) to any Successor Servicer, as applicableany out-of-pocket expenses and indemnities due to the Successor Servicer; provided, in an amount equal that aggregate amounts payable to any accrued and unpaid Backup Servicing Fee andSuccessor Servicer pursuant to this clause may not exceed $100,000 in any calendar year; (iv) Fourth, 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 pro rata (A) if to each Hedge Counterparty (based on amounts due to each Hedge Counterparty pursuant to this subclause), any net payments due and payable under the Servicer is Gladstone Management Corporation or any of its Affiliatesrelated Hedging Agreement (other than Hedge Breakage Costs), 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 each Agent (based on amounts due to the end members of the preceding Settlement Period each Lender Group pursuant to this subclause), for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for further 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 LendersLender, an amount equal to the excesssum of (1) the portion of Senior Monthly Interest and Fees due to members of the related Lender Group plus (2) any Breakage Costs of any related Lender; (v) Fifth, pro rata (A) to each Hedge Counterparty that has any due and payable Hedge Breakage Costs (other than Subordinated Hedge Breakage Costs), such Hedge Breakage Costs, and (B) to each Agent (based on Lender Percentage) for further payment to each related Lender, the Monthly Principal Payment Amount; (vi) Sixth, 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 but a Partial Expiration Event has occurred, pro rata to one or more Lenders becoming each Agent for a Lender Group that includes a Non-Renewing Lenders, Extending Lender (based on the Loans Outstanding to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ixExtending Lender) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for further payment to each Managing Agentrelated Non-Extending Lender, on behalf of the related Lenders, in the an 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, equal to the Swingline product of (A) such Non-Extending Lender, for 's Invested Percentage DB1/ 139452285.4 53 154304283v7 as of its Commitment Termination Date times (B) all remaining Available Funds until the portion of the Obligations constituting unpaid principal Loan Outstanding owned by such Non-Extending Lender is reduced to zero; (vii) Seventh, pro rata to each Agent (based on the amount of the Swing Advances;Subordinated Monthly Interest Payment Amount due to members of the related Lender Group), for further payment to each related Lender, the Subordinated Monthly Interest Payment Amount; (viii) Eighth, pro rata to each Hedge Counterparty that has any due and payable Subordinated Hedge Breakage Costs (based on such amounts due), such Subordinated Hedge Breakage Costs; (ix) Ninth, pro rata to each Agent (based on such amounts due) for further payment to the related Lender or the related Indemnified Parties, all other Aggregate Unpaids (other than the principal amount of the Loans Outstanding) then due to the Lenders and Indemnified Parties under this Agreement; (x) Tenth, pro rata (based on such amounts due) to the Backup Servicer and the Successor Servicer, any fees, expenses (including Transition Expenses) and indemnities not paid pursuant to clauses (ii) or (iii), above, as applicable; and (xi) Eleventh, any remaining amount shall be distributed to, or as otherwise directed by, the Borrower.
Appears in 1 contract
Sources: Loan Agreement (Lithia Motors 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 Agent to pay pursuant to the latest Borrowing Base Certificate (and the Collateral Agent shall make payment from the USD Interest Collection Account, the Canadian Dollar Interest Collection Account, the Euro Interest Collection Account and the GBP Interest Collection Account, in each case, 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:: (1)
(aA) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRSTfirstly, to the applicable Governmental Authority for any Tax owing by the Borrower; provided that, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, payable pursuant to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(sthis Section 2.7(a)(1)(A), for the payment thereofSection 2.7(b)(1)(A) and Section 2.8(1)(A) shall not exceed $25,000 per annum; and (B) secondly, but excluding, pro rata to the extent the Hedge Counterparty is not the same Person as the Administrative Collateral Agent, any Swap Breakage the Securities Intermediary 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 ServicerDocument Custodian, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee andCollateral Agent Fees and the Document Custodian Fees; provided that, if anythe aggregate amount payable pursuant to this Section 2.7(a)(1)(B), accrued Section 2.7(b)(1)(B) and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
Section 2.8(1)(B) shall not exceed $200,000 per annum; (v2) 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 LendersManager, in an amount equal to any accrued and unpaid expenses; provided that, the aggregate amount payable pursuant to this Section 2.7(a)(2), Section 2.7(b)(2) and Section 2.8(2) shall not exceed $100,000 per annum; (3) pro rata to each Lender, in an amount equal to (A) such Lender’s share of the Interest for the related Accrual Period and Unused 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 Payment Date;
Lender; (viii4) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, pro rata to the Administrative Agent for payment and each Lender, all fees and other amounts (other than the principal of Advances Outstanding), including any Increased Costs and Upfront Fee, Make-Whole Fees and Administrative Expenses, then due to each Managing Agentsuch Person under this Agreement; (5) pro rata to each Lender, on behalf of (a) if the related LendersRequired Advance Reduction Amount is greater than zero, an amount necessary to reduce the Required Advance Reduction Amount to zero, and (b) if any Applicable Currency Required Advance Reduction Amount is greater than zero, an amount necessary to reduce such Applicable Currency Required Advance Reduction Amount to zero; (6) pro rata to each Lender, 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 rataaccrued and unpaid Make-Whole Fee; 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;BUSINESS.32224493.
Appears in 1 contract
Sources: Loan and Security Agreement (New Mountain Guardian IV BDC, L.L.C.)
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
Sources: Credit, Security and Management Agreement (GSC Investment Corp.)
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
Sources: Warehouse Agreement (Vroom, 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 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, 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
Sources: Receivables Financing Agreement (Owens & Minor Inc/Va/)
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, 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
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. 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. (a) The Servicer shall hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent during the continuance of an Event of Termination or a Non-Reinvestment Event, 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 Blocked Account, 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 Seller from such Collections received on Unsold Receivables the amount (if any) necessary to pay (x) the purchase price for Receivables purchased by the Seller on such date in accordance with the terms of the Purchase and Sale Agreement or (y) amounts owing by the Seller to the Originators under the Subordinated Notes (each such release, a “Release”). On each Payment Settlement Date, the Servicer on behalf 751200428 16518096 (or, following its assumption of control 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 Blocked Account, to the extent of available fundsAdministrative Agent) shall, (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 the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRSTprior to the occurrence of the Termination Date, 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 Group Agent ratably according to the aggregate outstanding Capital of each Purchaser in each such Group Agent, on behalf ’s Group (for the benefit of the related Lendersrelevant Purchasers in such Group Agent’s Group), in an amount equal to any all accrued and unpaid Interest Yield, Fees and Unused Fee Breakage Fees due to such Purchaser and other Purchaser Party for the immediately preceding Yield Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 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 5.03 and 13.01 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 1 contract
Settlement Procedures. On each Payment Distribution Date, the Servicer on behalf of shall instruct the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) Account Bank to pay, 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), (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”) Funds 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 Collectionsrelated Monthly Report:
(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) THIRDFirst, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for to the payment thereofextent not previously retained by the Servicer;
(ii) Second, pro rata (A) to the Servicer (including any Successor Servicer), the accrued and unpaid Servicing Fee and all Ancillary Fees to the extent not previously retained by the Servicer and (B) to any Successor Servicer, any out-of-pocket expenses and indemnities due to the Successor Servicer; provided, that aggregate amounts payable to any Successor Servicer pursuant to this clause may not exceed $100,000 in any calendar year;
(iii) Third, to the Backup Servicer, the Backup Servicing Fee, any out-of-pocket expenses that are reimbursable to the Backup Servicer pursuant to the Backup Servicing Agreement (including any Transition Expenses, but only if the Backup Servicer is not the Successor Servicer), and any indemnifiable amounts due to the Backup Servicer; provided, that Transition Expenses payable to the Backup Servicer pursuant to this clause may not exceed $100,000 in any calendar year;
(iv) FOURTHFourth, 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 pro rata (A) if to each Hedge Counterparty (based on amounts due to each Hedge Counterparty pursuant to this subclause), any net payments due and payable under the Servicer is Gladstone Management Corporation or any of its Affiliatesrelated Hedging Agreement (other than Hedge Breakage Costs), 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 Agent, for further 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 LendersLender, an amount equal to the excesssum of (1) the portion of Monthly Interest and Fees (other than Default Interest) due to each Lender plus (2) any Breakage Costs of any related Lender;
(v) Fifth, pro rata (A) to each Hedge Counterparty that has any due and payable Hedge Breakage Costs (other than Subordinated Hedge Breakage Costs), such Hedge Breakage Costs, and (B) to the Administrative Agent for further payment to each Lender,
(I) prior to the Commitment Termination Date, if any, of Advances Outstanding over the lesser of (i) the a Borrowing Base Deficiency has occurred and is continuing, to pay the Loans Outstanding for each Lender as of such date (pro rata, based on each Lender’s Percentage) until such Borrowing Base Deficiency is cured (on a pro forma basis as at such Distribution Date); and
(II) on or after the Commitment Termination Date, to pay the Loans Outstanding for each Lender (iipro rata, based on each Lender’s Percentage) until paid in full;
(vi) Sixth, to the Facility AmountAdministrative Agent, together with for further payment to each Lender, an amount equal to all accrued and unpaid Default Interest due to the Lenders for the immediately preceding Interest Period, plus, if applicable, 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 Default Interest payable for any prior Interest Period to the extent that (i) the Termination Date such amount has not occurred and been distributed to Lenders;
(iivii) 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 onlySeventh, pro rata in accordance with their Advances to each Hedge Counterparty that has any due and payable Subordinated Hedge Breakage Costs (based on such amounts due), such Subordinated Hedge Breakage Costs;
(viii) Eighth, to the Administrative Agent (based on such amounts due) for further payment to each Lender or the related Indemnified Parties, all other Aggregate Unpaids (other than the principal amount of the Loans Outstanding) then due to the Lenders and Indemnified Parties under this Agreement;
(ix) NINTHNinth, pro rata (based on such amounts due) to each Hedge Counterparty(A) the Successor Servicer, any Swap Breakage fees, expenses (including Transition Expenses), and Indemnity Amounts indemnities not paid pursuant to clause (ii), above, (B) the Backup Servicer, any fees, expenses (including Transition Expense), and indemnities not paid pursuant to clause (iii), above, and (C) the Account Bank, any reasonable fees and expenses owing that Hedge Counterparty;to the Account Bank in connection with the maintenance of the Collection Account (to the extent such amounts have not previously been paid to the Account Bank by the Servicer); and
(x) TENTHTenth, to any remaining amount shall be distributed to, or as otherwise directed by, 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
Sources: Loan Agreement (Lendbuzz Inc.)
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 W▇▇▇ 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 W▇▇▇ 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
Sources: 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. 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
Sources: Loan and Servicing Agreement (Prospect Capital Corp)
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
Sources: Warehouse Agreement (Vroom, 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 1 contract
Sources: Fifth Amended and Restated Credit Agreement (Gladstone Investment Corporation\de)
Settlement Procedures. On Pursuant to each Payment DateMonthly Report, the Servicer on behalf of shall instruct the Borrower shall Collateral Custodian or such other Eligible Institution then holding the Collection 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, to the extent of available funds, Available Funds and (ii) Servicer Advancesthe Reserve Account to the extent there is an Available Funds Shortfall, and (iii) 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 (vi) and, solely to the extent that the Note Balance exceeds the Net Principal Balance on such Payment Date, clause (vii), (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) FIRSTFirst, 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 owing that owed to such Hedge Counterparty under its respective Hedging Agreement in respect of any (excluding Hedge Transaction(s), for the payment thereof, but excluding, Breakage Costs) pursuant to the extent terms of the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amountsrelated Hedging Agreement;
(iiiii) 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 Fees and out-of-pocket expenses owed to the Collateral Custodian (such expenses not to exceed $50,000 per annum prior to a Termination Event or a Foreclosure Event);
(iii) Third, pro rata, (1) to the Servicer, in an amount equal to the sum of (1) accrued and unpaid Servicing Fee and Collateral Custodian (2) to the Successor Servicer or Backup Servicer, as applicable, any unpaid Transition Expenses;
(iv) Fourth, if anyto the Backup Servicer, in an amount equal to (1) any accrued and unpaid Backup Servicing Fee and (2) any amounts payable pursuant to Section 7.10(b), to the extent such amounts have not been paid by the Servicer;
(v) Fifth, to the Administrative Agent for payment to the Lender in an amount equal to any accrued and unpaid (1) Interest (plus Used Fee and the Unused Fee) with respect to the Note Balance, (2) Breakage Costs allocable to Loans and (3) all other Aggregate Unpaids (other than the Note Balance) then due under this Agreement to the Administrative Agent, the Lender, the Affected Parties or the Indemnified Parties, 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) SEVENTHSixth, to the Administrative Agent for payment to each Managing Agentthe Lender all accrued and unpaid fees;
(vii) Seventh, on behalf pro rata, (i) to the Administrative Agent for payment to the Lender, in an amount equal to the excess (if any) of the Note Balance as of the related LendersDetermination Date over the Borrowing Base as of such Determination Date and (ii) to each Hedge Counterparty, in an amount equal to any accrued and unpaid Interest and Unused Fee for Hedge Breakage Costs owed to such Payment DateHedge Counterparty pursuant to the terms of the related Hedging Agreement;
(viii) EIGHTHEighth, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collectionspro rata, to the Administrative Agent for payment and to each Managing the Lender, all other amounts owed to the Administrative Agent, on behalf of the related Lenders, an amount equal to Lender and the excessother Indemnified Parties;
(ix) Ninth, 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 (i1) the Termination Date has not occurred and occurred, the remaining funds to reduce the Note Balance to zero or (ii2) Advances Outstanding exceed prior to the Facility Amount due to one or more Lenders becoming Non-Renewing Lendersoccurrence of the Termination Date, to each Managing Agent the Reserve Account, the amount necessary to cause the amount on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, deposit therein to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterpartyequal the Reserve Account Required Amount;
(x) TENTHTenth, pro rata, (1) to the Administrative Agent for payment extent not paid pursuant to each Managing Agent, on behalf clause (ii) above (whether as a result of the related Lenderslimitations on amounts set forth therein or otherwise) to the Collateral Custodian any fees, in expenses or indemnities owed to the amount of unpaid Breakage Costs Collateral Custodian and (other than Breakage Costs covered in 2) to the extent not paid pursuant to clause (viiiv) aboveabove (whether as a result of the limitations on amounts set forth therein or otherwise) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline LenderBackup Servicer any fees, for expenses or indemnities owed to the portion of the Obligations constituting unpaid principal of the Swing Advances;Backup Servicer; and
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) 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 Committed Lenders, to each Managing Agent on behalf of such Non-Renewing Committed 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 end of the Revolving Period, 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, 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;
(viii) EIGHTH, 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) Following the end of the Revolving Period, to the extent of available Principal Collections:
(i) FIRST, to the parties listed above, any amount remaining unpaid pursuant to clauses FIRST through SEVENTH 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, 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 clause (b) above; and
(vii) SEVENTH, all remaining amounts to the Borrower.
Appears in 1 contract
Settlement Procedures. (a) So long as the Administrative Agent has not taken dominion and control of the Concentration Accounts, the Servicer shall set aside and hold in trust for the Administrative Agent, for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, while an Event of Default has occurred and is continuing, segregate in a separate account designated by the Administrative Agent, which shall be an account maintained and/or 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 Seller or received in any Concentration Account, 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 (A) release to the Seller from Collections received on Seller Collateral the amount (if any) necessary to pay the purchase price for Receivables purchased by the Seller on such date in accordance with the terms of the Transfer Agreement and (B) release to the Seller all or a portion of Collections received on Sold Assets in exchange for the Seller designating an equivalent amount (based on aggregate Outstanding Balances) of Unsold Receivables as new Sold Receivables on Seller’s books and records pursuant to Section 2.01(e), which new Sold Receivables will be automatically and immediately sold by the Seller to the Administrative Agent (for the ratable benefit of the Purchasers) pursuant to Section 2.01(b) upon such release (each such release of Collections described in clauses (A) and (B) above, 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 the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) the Collection Concentration Account, to the extent of available funds, (iiAdministrative Agent) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during shall 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 Borrower, Servicer for the aggregate amount payment of fees all unpaid Servicing Fees accrued up to (including up-front, continuing or success feesbut not including) received in respect of the Transferred Loanssuch Settlement 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 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 and other Purchaser Party (ratably, based on behalf the amount then due and owing), (w) all unpaid Yield accrued on such Purchaser’s Capital up to (but not including) such Settlement Date, (x) all unpaid Fees accrued up to (but not including) such Settlement Date, (y) any indemnity payments under Section 4.02 due to such Purchaser and other Purchaser Party, and (z) any additional amounts or indemnified amounts payable under Sections 4.03 and 11.01 in respect of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Datepayments;
(viiiiii) EIGHTHthird, firstas 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 Capital Coverage Amount Deficit exists on such date, to the Administrative Agent for distribution to the Purchasers (ratably, based on the aggregate outstanding Capital of each Purchaser 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 Capital Coverage Amount Deficit to zero ($0);
(A) prior to the occurrence of the Termination Date:
(1) first, if a Capital Coverage Amount Deficit exists on such date, to the Administrative Agent for distribution to the Purchasers for repayment of outstanding Capital pursuant to the proviso below, the amount necessary to reduce the Capital Coverage Amount Deficit to zero ($0); provided that (x) if Collections available Principal Collectionson such date at this level of priority are sufficient to reduce such Capital Coverage Amount Deficit to zero ($0), then such amount shall be distributed by the Administrative Agent first to any Terminating Purchasers (ratably, based on their respective aggregate outstanding Capital at such time) until all outstanding Capital of such Terminating Purchasers has been repaid in full, and second to any Purchasers that are not Terminating Purchasers (ratably, based on their respective aggregate outstanding Capital at such time), or (y) if Collections available on such date at this level of priority are not sufficient to reduce such Capital Coverage Amount Deficit to zero ($0), then such amount shall be distributed by the Administrative Agent to all Purchasers (ratably, based on their respective aggregate outstanding Capital at such time); and
(2) second, if one or more Purchasers are Terminating Purchasers, to the Administrative Agent for distribution to each Terminating Purchaser (ratably, based on the aggregate outstanding Capital of each Terminating Purchaser at such time) for the payment in full of the aggregate outstanding Capital of such Terminating Purchaser at such time;
(B) on and after the occurrence of the Termination Date, to the Administrative Agent for distribution to each Purchaser (ratably, based on the aggregate outstanding Capital of each Purchaser at such time) for the payment in full of the aggregate outstanding Capital of such Purchaser at such time; or
(C) prior to the occurrence of the Termination Date, at the election of the Seller and in accordance with Section 2.03(d), to the Administrative Agent for distribution to the Purchasers (ratably, based on the aggregate outstanding Capital of each Purchaser at such time) payment of all or any portion of the outstanding Capital of the Purchasers at such time (ratably, based on the aggregate outstanding Capital of each Purchaser at such time);
(iv) fourth, to the Administrative Agent for distribution to the Secured Parties and Seller Indemnified Parties (ratably, based on the amount due and owing at such time), for the payment of all other Seller Obligations then due and owing by the Seller to the Secured Parties and the Seller Indemnified Parties;
(v) fifth, to the Originators (ratably, based on the amount due and owing at such time), any payments of principal or interest then due under the Subordinated Loans; and
(vi) sixth, the balance, if any, to be paid to the Seller for its own account. For the avoidance of doubt, the amounts payable at each level of priority above include all such amounts at such level of priority, whether attributable to Investments, Investment Capital, Loans or Loan Capital, on a pari passu basis. To the extent payable in respect of Investment Capital or Yield, Fees or other amounts attributable to Investment Capital, amounts payable pursuant to each of clauses first through fifth above shall be paid (at each level of priority) first from available Collections on Sold Receivables and other Sold Assets, and second, to the extent necessary in order to make all such payments at such level of priority in full, from Collections on Unsold Receivables and other Seller Collateral. To the extent payable in respect of Loan Capital or Yield, Fees or other amounts attributable to Loan Capital, amounts payable pursuant to each of clauses first through fifth above shall be paid (at each level of priority) first from available Interest CollectionsCollections on Unsold Receivables and other Seller Collateral, and second, to the extent necessary in order to make all such payments at such level of priority in full, from Collections on Sold Receivables and other Sold Assets. Any such allocation of Collections at each level of priority pursuant to the foregoing two sentences of this paragraph shall be made by the Seller (or the Servicer on its behalf), and neither the Administrative Agent nor any Purchaser shall have any responsibility to make, or maintain records of, any such allocation. For the avoidance of doubt and notwithstanding anything to the contrary herein, nothing in this paragraph shall be construed to override or otherwise modify the priority of payments set forth in clauses (i) through (vi) above. The Seller’s right to receive payments (if any) from time to time pursuant to clause sixth above shall, to the extent arising from Collections on Sold Receivables, constitute compensation to the Seller for the Seller’s provision of the Seller Guaranty and the Purchaser Parties’ interests in the Sold Asset and the Seller Collateral.
(b) Notwithstanding anything to the contrary set forth in this Section 3.01, the Administrative Agent shall have no obligation to distribute or pay any amount under this Section 3.01 except to the extent actually received by the Administrative Agent. All payments or distributions to be made by the Servicer, the Seller and any other Person to any Purchaser Party (or its respective related Secured Parties or Seller Indemnified Parties), shall be paid or distributed to the Administrative Agent for payment distribution to the applicable Purchaser at such account as such Purchaser has designated in writing to the Administrative Agent from time to time. Each Purchaser, upon its receipt in the applicable Purchaser’s account of any such payments or distributions, shall distribute such amounts to the applicable related Seller Indemnified Parties; 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 each Purchaser, and each Purchaser shall pay such amounts to the applicable related Seller 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 Managing Agentsuch related Person) among all such related Persons entitled to payment thereof. Each payment by the Servicer or the Seller to the Administrative Agent for the account of any Purchaser hereunder shall be deemed to constitute payment by the Servicer or the Seller directly to such Purchaser, on behalf provided, however, that in the event any such payment by the Servicer or the Seller is required to be returned to the Servicer or the Seller for any reason whatsoever, then the Servicer’s or the Seller’s obligation to such Purchaser with respect to such payment shall be deemed to be automatically reinstated. Additionally, each Purchaser hereby covenants and agrees to provide timely and accurate responses to each of the related LendersAdministrative Agent’s requests for information necessary for the Administrative Agent to make the allocations to the Purchasers required to be made by the Administrative Agent hereunder, including the applicable account of each Purchaser for which amounts should be distributed.
(c) If and to the extent the Administrative Agent or any other Secured Party or Seller Indemnified Party shall be required for any reason to pay over to any Person (including any Obligor or any trustee, receiver, custodian or similar official in any Relief Proceeding) 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 Seller and, accordingly, the Administrative Agent or such Secured Party or such Seller Indemnified Party, as the case may be, shall have a claim against the Seller for such amount.
(d) For the purposes of this Section 3.01:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or cancelled as a result of (A) any defective, rejected, returned, repossessed or foreclosed goods or services, (B) any revision, cancellation, allowance, rebate, credit memo, discount or other adjustment made by any Seller-Related Party or any Affiliate thereof (other than rights to reduction of the Outstanding Balance to the extent reflected in the Initial Valuation Adjustment and/or Specifically Reserved Dilution Amount) or (C) any setoff, counterclaim or dispute between any Seller-Related Party or any Affiliate thereof, and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in an amount equal to the positive difference between (A) such Pool Receivable’s Outstanding Balance prior to such reduction and (B) its Outstanding Balance after such reduction, and the Seller shall within two (2) Business Days pay to a Concentration Account or as otherwise directed by the Administrative Agent at such time, for the benefit of the Purchaser Parties for application pursuant to Section 3.01(a), an amount equal to (x) if such reduction occurs prior to the excessTermination Date and no Event of Default has occurred and is continuing, if any, of Advances Outstanding over the lesser of (iI) the Borrowing Base sum of all deemed Collections with respect to such reduction and (II) an amount necessary to eliminate any Capital Coverage Amount Deficit that exists at such time and (y) if such reduction occurs on or after the Termination Date or at any time when an Event of Default has occurred and is continuing, the sum of all deemed Collections with respect to such reduction (iiCollections deemed to have been received pursuant to this Section 3.01(d)(i) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (are hereinafter sometimes referred to as such Breakage Costs are notified to the Borrower by the applicable Lender(s“Dilution”)), pro rata; provided, however, that to the extent that ;
(i) the Termination Date has if (A) any representation or warranty in Section 6.01 is 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) true with respect to any prepayments Pool Receivable at the time made or (B) any Receivable included in any Monthly Report as an Eligible Receivable or in any calculation of the Net Receivables Pool Balance as an Eligible Receivable fails to be an Eligible Receivable at the time of such inclusion, then, in either case, the Seller shall be deemed to have received on such Payment Date Increased Costsday a Collection of such Pool Receivable’s Outstanding Balance in full, and/or Taxes and the Seller shall within two (if any);
(xi2) ELEVENTH, Business Days pay to a Concentration Account or as otherwise directed by the Swingline LenderAdministrative Agent at such time, for the portion benefit of the Obligations constituting unpaid principal Purchaser Parties for application pursuant to Section 3.01(a), an amount equal to (x) if such breach occurs prior to the Termination Date and no Event of Default has occurred and is continuing, the Swing Advanceslesser of (I) the sum of all deemed Collections with respect to such breach and (II) an amount necessary to eliminate any Capital Coverage Amount Deficit that exists at such time and (y) if such breach occurs on or after the Termination Date or at any time when an Event of Default has occurred and is continuing, the sum of all deemed Collections with respect to such breach (Collections deemed to have been received pursuant to Sections 3.01(d)(i) and 3.01(d)(ii), including any Dilution, are hereinafter sometimes referred to as “Deemed Collections”);
Appears in 1 contract
Sources: Receivables Purchase Agreement (Labcorp Holdings 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
Sources: 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 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
Sources: 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 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 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 (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 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) 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 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 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, 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 (including up-front, continuing such reduction or success fees) received adjustment and shall immediately pay 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);
(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 each Hedge Counterpartyhave received on such day a Collection of such Pool Receivable in full and 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) 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, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect all Collections received from an Obligor of any Hedge Transaction(s)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 the payment thereof, but excluding, application to specific Receivables; and
(iv) if and to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
Credit Party, any Affected Person or any Borrower Indemnified Party shall be required for any reason to pay over to an Obligor (iiior any trustee, receiver, custodian or similar official in any Insolvency Proceeding) THIRDany amount received by it hereunder, such amount shall be deemed not to the Servicer, in an amount equal have been so received by such Person but rather to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid 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 1 contract
Sources: Receivables Financing Agreement (Applied Industrial Technologies 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 the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale 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, 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
Sources: Receivables Financing Agreement (Covia Holdings 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:
(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
Sources: Loan Purchase and Servicing Agreement (First International Bancorp 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 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
Sources: Credit Agreement (Gladstone Investment Corporation\de)
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, subject to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(sSection 2.12(d), 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, (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 on the 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 (ii) the Facility Amountabove, 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 rataapplicable; 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;and
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 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 L▇▇▇▇▇ 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
Sources: Loan, Security and Servicing Agreement (Monroe Capital Income Plus Corp)
Settlement Procedures. On each Payment Date(a) So long as the Administrative Agent has not taken exclusive dominion and control of the Collection Accounts pursuant to Section 8.03, the Servicer on behalf shall set aside and hold in trust for the benefit of the Borrower shall pay for receipt Secured Parties (or, if so requested by the applicable Lender no later than 11:00 a.m. (New York City time) Administrative Agent during an Event of Default, 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 5.03 are satisfied on such date, the Servicer may release to the following Persons, Borrower from such Collections the amount (if any) necessary to pay (i) the Collection Account, to purchase price for Receivables purchased by the extent Borrower on such date in accordance with the terms of available funds, the Sale and Contribution Agreement or (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (owing by the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited Borrower to the Revolver Loan Funding Originators under the Subordinated Loans (each such release, a “Release”). On each Settlement Date, so long as the Administrative Agent has not taken exclusive dominion and control of the Collections Accounts in accordance with pursuant to Section 2.14 below being 8.03, the “Available Collections”Servicer (or, following its assumption of exclusive dominion and control of the Collection Accounts, the Administrative Agent) the following amounts shall, distribute such 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 Feesindemnification payments under Section 4.02, 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 13.0111.01 in respect of any Hedge Transaction(ssuch payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Feesindemnification payments under Section 4.02, (including any additional amounts or indemnified amounts payable under Sections 4.03 and 11.01 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
Sources: Receivables Financing Agreement (Evoqua Water Technologies Corp.)
Settlement Procedures. (a) On each Payment Distribution Date, the Servicer on behalf of shall instruct the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) Account Bank to pay, 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), (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 “Pool 1 Available Collections”) Funds 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 Collectionsrelated Monthly Report:
(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) THIRDFirst, to the Servicer, in an amount equal to any Unreimbursed Servicer AdvancesAdvances related to Pool 1 Receivables, for to the payment thereofextent not previously retained by the Servicer;
(ii) Second, pro rata (A) to the Servicer (including any Successor Servicer), the accrued and unpaid Pool 1 Servicing Fee Payment and all Ancillary Fees related to Pool 1 Receivables to the extent not previously retained by the Servicer and (B) to any Successor Servicer, any out-of-pocket expenses and indemnities due to the Successor Servicer; provided, that aggregate amounts payable to any Successor Servicer pursuant to this clause, together with amounts paid pursuant to clause (ii) of Section 2.07(b), may not exceed $100,000 in any calendar year;
(iii) Third, to the Backup Servicer, the Pool 1 Backup Servicing Fee Payment, any out-of-pocket expenses that are reimbursable to the Backup Servicer pursuant to the Backup Servicing Agreement (including any Transition Expenses, but only if the Backup Servicer is not the Successor Servicer) that are related to the Pool 1 Receivables, and an amount equal to the product of (A) the Pool 1 Allocation Percentage times (B) any indemnifiable amounts due to the Backup Servicer; provided, that Transition Expenses payable to the Backup Servicer pursuant to this clause, together with amounts paid pursuant to clause (iii) of Section 2.07(b), may not exceed $100,000 in any calendar year;
(iv) FOURTHFourth, 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 pro rata (A) if to each Hedge Counterparty (based on amounts due to each Hedge Counterparty pursuant to this subclause), any net payments due and payable under the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees related Hedging Agreement relating to the end of the preceding Settlement PeriodPool 1 Receivables (other than Hedge Breakage Costs), 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 each Agent (based on amounts due to the end members of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, each Lender Group with respect to the Administrative Agent Pool 1 Loan pursuant to this subclause), for further 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, Lender with respect 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 LendersPool 1 Loan, an amount equal to the excessportion of Pool 1 Senior Monthly Interest and Fees due to members of the related Lender Group;
(v) Fifth, if anypro rata (A) to each Hedge Counterparty that has any due and payable Hedge Breakage Costs under a Hedging Agreement relating to the Pool 1 Receivables (other than Subordinated Hedge Breakage Costs), of Advances Outstanding over such Hedge Breakage Costs, and (B) to each Agent (pro rata, based on each Lender’s Lender Advance with respect to the lesser of Pool 1 Loan) for further payment to each related Lender with respect to the Pool 1 Loan, the Pool 1 Monthly Principal Payment Amount;
(ivi) the Borrowing Base or Sixth, pro rata to each Agent (ii) the Facility Amount, together with based on 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 Pool 1 Subordinated Monthly Interest Payment Amount due to one or more Lenders becoming Non-Renewing Lendersmembers of the related Lender Group), for further payment to each related Lender with respect to the Pool 1 Loan, the Pool 1 Subordinated Monthly Interest Payment Amount;
(vii) Seventh, pro rata to each Hedge Counterparty that has any due and payable Subordinated Hedge Breakage Costs under a Hedging Agreement relating to the Pool 1 Receivables (based on such amounts due), such Subordinated Hedge Breakage Costs;
(viii) Eighth, to each Managing Agent (pro rata, based on behalf of such Noneach Lender’s Lender Advance) for further payment to each related Lender with respect to the Pool 2 Loan, the Pool 1 Cross-Renewing Lenders only, pro rata in accordance with their Advances OutstandingCollateralization Amount;
(ix) NINTHNinth, pro rata to each Hedge CounterpartyAgent (based on such amounts due) for further payment to the related Lender or the related Indemnified Parties, any Swap Breakage all other Aggregate Unpaids related to the Pool 1 Loan and/or the Pool 1 Receivables (other than the principal amount of the Pool 1 Loan Outstanding) then due to the Lenders with respect to the Pool 1 Loan and Indemnity Amounts owing that Hedge CounterpartyIndemnified Parties under this Agreement;
(x) TENTHTenth, pro rata (based on such amounts due) to each of the following Persons an amount equal to the Administrative Agent for payment to each Managing Agent, on behalf product of the Pool 1 Allocation Percentage multiplied by the related Lendersamount due: (A) to the Successor Servicer, in the amount of unpaid Breakage Costs any fees, expenses (other than Breakage Costs covered in including Transition Expenses), and indemnities not paid pursuant to clause (viiii), above, or clause (ii) of Section 2.07(b), (B) to the Backup Servicer, any fees, expenses (including Transition Expense), and indemnities not paid pursuant to clause (iii), above, or clause (iii) of Section 2.07(b), and (C) to the Account Bank, any reasonable fees and expenses owing to the Account Bank in connection with respect the maintenance of the Collection Account (to any prepayments made on the extent such Payment Date Increased Costs, and/or Taxes (if anyamounts have not previously been paid to the Account Bank by the Servicer);; and
(xi) ELEVENTHEleventh, any remaining amount shall be distributed to, or as otherwise directed by, the Borrower.
(b) On each Distribution Date, the Servicer shall instruct the Account Bank to pay, to the Swingline Lenderfollowing Persons, from the Collection Account to the extent of Pool 2 Available Funds the following amounts in the following order of priority, as set forth in the related Monthly Report:
(i) First, to the Servicer, an amount equal to any Unreimbursed Servicer Advances related to Pool 2 Receivables, to the extent not previously retained by the Servicer;
(ii) Second, pro rata (A) to the Servicer (including any Successor Servicer), the accrued and unpaid Pool 2 Servicing Fee Payment and all Ancillary Fees related to Pool 2 Receivables to the extent not previously retained by the Servicer and (B) to any Successor Servicer, any out-of-pocket expenses and indemnities due to the Successor Servicer; provided, that aggregate amounts payable to any Successor Servicer pursuant to this clause, together with amounts paid pursuant to clause (ii) of Section 2.07(a), may not exceed $100,000 in any calendar year;
(iii) Third, to the Backup Servicer, the Pool 2 Backup Servicing Fee Payment, any out-of-pocket expenses that are reimbursable to the Backup Servicer pursuant to the Backup Servicing Agreement (including any Transition Expenses, but only if the Backup Servicer is not the Successor Servicer) that are related to the Pool 2 Receivables, and an amount equal to the product of (A) the Pool 2 Allocation Percentage times (B) any indemnifiable amounts due to the Backup Servicer; provided, that Transition Expenses payable to the Backup Servicer pursuant to this clause, together with amounts paid pursuant to clause (iii) of Section 2.07(a), may not exceed $100,000 in any calendar year;
(iv) Fourth, pro rata (A) to each Hedge Counterparty (based on amounts due to each Hedge Counterparty pursuant to this subclause), any net payments due and payable under the related Hedging Agreement relating to the Pool 2 Receivables (other than Hedge Breakage Costs), and (B) to each Agent (based on amounts due to the members of each Lender Group with respect to the Pool 2 Loan pursuant to this subclause), for further payment to each related Lender with respect to the Pool 2 Loan, an amount equal to the portion of the Obligations constituting unpaid principal Pool 2 Senior Monthly Interest and Fees due to members of the Swing Advancesrelated Lender Group;
(v) Fifth, pro rata (A) to each Hedge Counterparty that has any due and payable Hedge Breakage Costs under a Hedging Agreement relating to the Pool 2 Receivables (other than Subordinated Hedge Breakage Costs), such Hedge Breakage Costs, and (B) to each Agent (pro rata, based on each Lender’s Lender Advance with respect to the Pool 2 Loan) for further payment to each related Lender with respect to the Pool 2 Loan, the Pool 2 Monthly Principal Payment Amount;
(vi) Sixth, pro rata to each Agent (based on the amount of the Pool 2 Subordinated Monthly Interest Payment Amount due to members of the related Lender Group), for further payment to each related Lender with respect to the Pool 2 Loan, the Pool 2 Subordinated Monthly Interest Payment Amount;
(vii) Seventh, pro rata to each Hedge Counterparty that has any due and payable Subordinated Hedge Breakage Costs under a Hedging Agreement relating to the Pool 1 Receivables (based on such amounts due), such Subordinated Hedge Breakage Costs;
(viii) Eighth, to each Agent (pro rata, based on each Lender’s Lender Advance) for further payment to each related Lender with respect to the Pool 1 Loan, the Pool 2 Cross-Collateralization Amount;
(ix) Ninth, pro rata to each Agent (based on such amounts due) for further payment to the related Lender or the related Indemnified Parties, all other Aggregate Unpaids related to the Pool 2 Loan and/or the Pool 2 Receivables (other than the principal amount of the Pool 2 Loan Outstanding) then due to the Lenders with respect to the Pool 2 Loan and Indemnified Parties under this Agreement;
(x) Tenth, pro rata (based on such amounts due) to each of the following Persons an amount equal to the product of the Pool 2 Allocation Percentage multiplied by the related amount due: (A) to the Successor Servicer, any fees, expenses (including Transition Expenses), and indemnities not paid pursuant to clause (ii), above, or clause (ii) of Section 2.07(a), (B) to the Backup Servicer, any fees, expenses (including Transition Expense), and indemnities not paid pursuant to clause (iii), above, or clause (iii) of Section 2.07(a), and (C) to the Account Bank, any reasonable fees and expenses owing to the Account Bank in connection with the maintenance of the Collection Account (to the extent such amounts have not previously been paid to the Account Bank by the Servicer); and
(xi) Eleventh, any remaining amount shall be distributed to, or as otherwise directed by, the Borrower.
Appears in 1 contract
Sources: Loan Agreement (Lendbuzz Inc.)
Settlement Procedures. On each Payment Distribution Date, the Servicer on behalf of shall instruct the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) Account Bank to pay, 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), (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”) Funds 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 Collectionsrelated Monthly Report:
(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) THIRDFirst, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for to the payment thereofextent not previously retained by the Servicer;
(ii) Second, pro rata (A) to the Servicer (including any Successor Servicer), the accrued and unpaid Servicing Fee and all Ancillary Fees to the extent not previously retained by the Servicer and (B) to any Successor Servicer, any out-of-pocket expenses and indemnities due to the Successor Servicer; provided, that aggregate amounts payable to any Successor Servicer pursuant to this clause may not exceed $100,000 in any calendar year;
(iii) Third, to the Backup Servicer, the Backup Servicing Fee, any out-of-pocket expenses that are reimbursable to the Backup Servicer pursuant to the Backup Servicing Agreement (including any Transition Expenses, but only if the Backup Servicer is not the Successor Servicer), and any indemnifiable amounts due to the Backup Servicer; provided, that Transition Expenses payable to the Backup Servicer pursuant to this clause may not exceed $100,000 in any calendar year;
(iv) FOURTHFourth, 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 pro rata (A) if to each Hedge Counterparty (based on amounts due to each Hedge Counterparty pursuant to this subclause), any net payments due and payable under the Servicer is Gladstone Management Corporation or any of its Affiliatesrelated Hedging Agreement (other than Hedge Breakage Costs), 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 Agent, for further 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 LendersLender, an amount equal to the excess, if any, of Advances Outstanding over the lesser sum of (i1) the Borrowing Base or portion of Monthly Interest and Fees due to each Lender plus (ii2) the Facility Amount, together with the amount of any Breakage Costs incurred by the applicable Lenders in connection with of any such payment related Lender;
(as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (iv) 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 onlyFifth, pro rata (A) to each Hedge Counterparty that has any due and payable Hedge Breakage Costs (other than Subordinated Hedge Breakage Costs), such Hedge Breakage Costs, and (B) to the Administrative Agent for further payment to each Lender,
(I) prior to the Commitment Termination Date, if a Borrowing Base Deficiency has occurred and is continuing, to pay the Loans Outstanding for each Lender as of such date (pro rata, based on each Lender’s Percentage) until such Borrowing Base Deficiency is cured (on a pro forma basis as at such Distribution Date); and
(II) on or after the Commitment Termination Date, to pay the Loans Outstanding for each Lender (pro rata, based on each Lender’s Percentage) until paid in accordance with their Advances Outstandingfull;
(ixvi) NINTHSixth, pro rata to each Hedge CounterpartyCounterparty that has any due and payable Subordinated Hedge Breakage Costs (based on such amounts due), any Swap such Subordinated Hedge Breakage and Indemnity Amounts owing that Hedge CounterpartyCosts;
(xvii) TENTHSeventh, to the Administrative Agent (based on such amounts due) for further payment to each Managing Agent, on behalf of Lender or the related LendersIndemnified Parties, 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 to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any)the Lenders and Indemnified Parties under this Agreement;
(xiviii) ELEVENTHEighth, pro rata (based on such amounts due) to (A) the Successor Servicer, any fees, expenses (including Transition Expenses), and indemnities not paid pursuant to clause (ii), above, (B) the Backup Servicer, any fees, expenses (including Transition Expense), and indemnities not paid pursuant to clause (iii), above, and (C) the Account Bank, any reasonable fees and expenses owing to the Swingline Lender, for Account Bank in connection with the portion maintenance of the Obligations constituting unpaid principal of Collection Account (to the Swing Advances;extent such amounts have not previously been paid to the Account Bank by the Servicer); and
(ix) Ninth, any remaining amount shall be distributed to, or as otherwise directed by, the Borrower.
Appears in 1 contract
Sources: Loan Agreement (Lendbuzz 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. 2:00 p.m. (New York City time) to ), the following PersonsAdministrative Agent, based solely on the Monthly Report delivered for the most recent Reporting Date (upon which the Administrative 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 Collateral Custodian in an amount equal to any accrued and unpaid (including with respect to prior Payment Dates) Collateral Custodian Fees and Expenses, if any, for the payment thereof in an aggregate amount under this clause (B), excluding Collateral Custodian Fees, not to exceed the Collateral Custodian 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 Collateral Custodian in an amount equal to all other amounts then due under this Agreement or any other Transaction Document to any Successor Servicer and the Collateral Custodian (including Collateral Custodian 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 Operating 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 Collateral Custodian in an amount equal to any accrued and unpaid (including with respect to prior Payment Dates) Collateral Custodian 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 Operating Account.
Appears in 1 contract
Sources: Credit Agreement (Ept 16 LLC)
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 ▇▇▇▇▇▇ 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
Sources: Loan, Security and Servicing Agreement (Monroe Capital Income Plus Corp)
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
Sources: Receivables Financing Agreement (Agiliti, 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 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
Sources: 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. 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
Sources: Credit, Security and Management Agreement (Saratoga Investment 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; 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 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 1 contract
Sources: Receivables Purchase Agreement (Centric Brands 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 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 (including up-front, continuing or success fees) received in respect of Servicing Fees payable for any prior Settlement 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 further distribution to each Managing AgentCredit Party (ratably, based on behalf of the related Lendersamount then due and owing), in an amount equal to any all accrued and unpaid Interest Interest, Fees and Unused Fee Breakage Fees due to such Credit Party for the immediately preceding Settlement Period (including any additional amounts or indemnified amounts payable under Section 5.03 and Section 13.01 in respect of such Payment Datepayments), plus, if applicable, the amount of any such Interest, Fees and Breakage 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;
(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
Sources: Receivables Financing Agreement (Davey Tree Expert Co)
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