Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest. (b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer: (i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside; (ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;
Appears in 3 contracts
Sources: Receivables Purchase Agreement (Fleetcor Technologies Inc), Receivables Purchase Agreement (Fleetcor Technologies Inc), Receivables Purchase Agreement (Fleetcor Technologies Inc)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser GroupIssuer, out of the Issuer’s Share of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group the Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Issuer’s Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Issuer, the remainder of the Issuer’s Share of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestreinvest, but shall set aside and hold in trust for the benefit of the Purchasers Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,
(iii) if such day is a Termination Day, which amount set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer the entire remainder of the Issuer’s Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be deposited ratably to each Purchaser Agent’s account reinvested in accordance with clause (for the benefit of its related Purchasers and to be applied in reduction of their respective Capitalii) on the next Weekly Settlement Date day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4(c)1.4; provided, further, that if UGI or an Affiliate thereof is the Facility Servicer, such day is not a Termination Date Day and the Administrator has been extended not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to Section 1.11 clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any Purchaser (other Indemnified Party or its Purchaser Agent) has provided notice (an “Exiting Notice”) Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the AdministratorFee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Purchaser’s refusalPool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, pursuant or Section 2, 3 or 4 of Exhibit VI is not true with respect to Section 1.11any Pool Receivable, the Seller shall be deemed to extend have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or its related Committed Purchaser’sany trustee, receiver, custodian or similar official in any Insolvency Proceeding) Commitment hereunder any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(an “Exiting Purchaser”f) then If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the Seller shall give the Administrator and the Servicer written notice in the form of Annex C (A) at least one Business Day prior to the date of such reduction for any reduction of Capital less than or equal to $20,000,000; (B) at least two Business Days prior to the date of such reduction for any reduction of Capital greater than $20,000,000 and less than or equal to $50,000,000; and (C) at least three Business Days prior to the date of such reduction for any reduction of Capital greater than $50,000,000, in each case such notice shall have been received by 3:00 p.m. New York City time on such date and shall include the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections shall not be Reinvested and shall instead be held in trust for the benefit Issuer, for payment to the Administrator on (1) solely with respect to any reduction described in subsections (f)(i)(B) or (f)(i)(C) the next Weekly Settlement Date, or (2) with respect to any reduction described in subsection (f)(i)(A), such other date with at least one (1) Business Day prior written notice to the Administrator of such Purchaser payment, and applied the Capital shall be deemed reduced in accordance with clause (iii) below;the amount to be paid to the Administrator only when in fact finally so paid; provided, that the amount of any such reduction shall be not less than $1,000,000 and shall be an integral multiple of $100,000.
Appears in 3 contracts
Sources: Receivables Purchase Agreement (Ugi Corp /Pa/), Receivables Purchase Agreement (Ugi Corp /Pa/), Receivables Purchase Agreement (Ugi Corp /Pa/)
Settlement Procedures. (a) The collection of the Pool Receivables NMG shall be administered by the Servicer transmit NMG Charge Transaction Data to Bank in accordance with this Agreementthe Operating Procedures on each day on which such Retail Merchants are open for business, other than Sunday. The Seller If NMG Charge Transaction Data is received by Bank’s processing center on or before 6:00 am (Central time) on any Business Day on which Bank is open for business, Bank shall provide to process the Servicer NMG Charge Transaction Data and initiate a wire transfer of the payment in respect thereof before 1:00 pm (Central time) on the same Business Day. If the NMG Charge Transaction Data is received after 6:00 am (Central time) on any day a Retail Merchant is open, or at any time on a timely basis all information needed day other than a Business Day, Bank shall process the NMG Charge Transaction Data for such administration, including notice of payment by 1:00 pm (Central time) on the occurrence of any Termination Day and current computations of the Purchased Interestfollowing Business Day.
(b) The Servicer shallBank shall remit to NMG, on each day on which Collections of Pool Receivables are received (or deemed received) by for itself and the Seller or the Servicer:
Retail Merchants, an amount equal to (i) set aside and hold the total amount of charges identified in trust all NMG Charge Transaction Data not yet paid in accordance with Section 8.4(a) less (and shallii) the sum of (A) the total amount of any credits included in such NMG Charge Transaction Data, at plus (B) the request total amount of In-Store Payments (if any), plus (C) any amounts charged back to such Retail Merchants pursuant to Section 8.5. The total amount of charges reflected in the NMG Charge Transaction Data shall include the amount of all Special Discounts such that upon daily settlement of such NMG Charge Transaction Data in accordance with this Section 8.4(b), Bank shall pay NMG the price of the Administrator, segregate in a separate account approved by the Administrator) NMG Goods and Services without giving effect to such discount(s). NMG shall reimburse Bank for the benefit amount of such discounts on a monthly basis as set forth in Section 8.4(c).
(c) Not more than five (5) days after the end of each Purchaser GroupFiscal Month, out NMG Servicer shall deliver or cause to be delivered to Bank a report for such preceding Fiscal Month of all Special Discounts reflected in the NMG Charge Transaction Data and paid for by Bank in such Collectionspreceding Fiscal Month (and, in the case of NMG Charge Transaction Data for a credit to an Account, all reversals of Special Discounts reflected in the credits included in such NMG Charge Transaction Data). The sum of (xi) the net amount of Special Discounts paid by Bank with respect to such Special Discounts during such Fiscal Month, as reflected on such report (after deducting any Special Discounts reversed in respect of NMG Goods and Services for which a credit was issued), plus (ii) an amount equal to the Aggregate Discount accrued through product of such day for each Portion net amount of Capital Special Discounts and not previously set aside, the Program Fee Percentage shall be paid by NMG to Bank within three (y3) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through Business Days of such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;report.
(iid) subject to Section 1.4(f), if NMG shall be responsible for allocating such day is not a Termination Day, remit to remittances among the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, Retail Merchants as appropriate and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” Bank shall have the correlative meaningno responsibility or liability in connection therewith (it being agreed that Bank has no obligation to accept NMG Charge Transaction Data directly from, or make remittances to, any person other than NMG); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;.
Appears in 2 contracts
Sources: Credit Card Program Agreement (Neiman Marcus Group Inc), Credit Card Program Agreement (Neiman Marcus, Inc.)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Each Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request of the AdministratorAdministrative Agent, segregate in a separate account approved by the AdministratorAdministrative Agent), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by such Servicer or any SPV Entity or received in any Lock-Box or Lock-Box Account; provided, however, that (A) the Servicers may from time to time release to the applicable SPV Entity from such Collections received on Unsold Receivables the amount (if any) necessary to pay the purchase price for Receivables purchased by such SPV Entity on such date in accordance with the terms of the applicable Purchase and Sale Agreement and (B) the U.S. Servicer may, on any day and if so requested by the Seller, release to the Seller all or a portion of such Collections received on Sold Receivables in exchange for the Seller designating on such day 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 on such day (each such release of Collections described in clauses (A) and (B) above, a “Release”); provided that, together with for the other avoidance of doubt, any Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount that are not so Released shall be deposited ratably to each Purchaser Agent’s account (held in trust by the Servicers for the benefit of its related Purchasers the Secured Parties or segregated and to be applied held in reduction of their respective Capital) a separate account approved by the Administrative Agent unless and until such Collections are Released or distributed on the next Weekly a Settlement Date Date, in each case, in accordance with Section 1.4(c)the terms hereof. On each Settlement Date, the Servicers (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections in the following order of priority:
(i) first, to each Lock-Box Bank, the amount of any fees, costs or expenses payable to such Lock-Box Bank by any SPV Entity in connection with maintaining its related Lock-Box Account(s) to the extent that such Lock-Box Bank is permitted to debit or otherwise pay itself such fees, costs or expenses from funds on deposit in such Lock-Box Account(s) pursuant to the terms of the applicable Lock-Box Agreement; provided, furtherthat the payment of such fees, that costs and expenses from Collections on deposit in such Lock-Box Accounts on days other than Settlement Dates in accordance with the terms of the applicable Lock-Box Agreements shall not constitute a breach or default under this Agreement for any purpose;
(ii) second, to each Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Yield Period (plus, if applicable, the Facility Termination Date amount of Servicing Fees payable for any prior Yield Period to the extent such amount has not been extended pursuant distributed to Section 1.11 such Servicer) plus any applicable Canadian Sales Taxes thereon;
(iii) third, to each Purchaser and other Purchaser Party (ratably, based on the amount then due and owing), all accrued and unpaid Yield and Fees and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) Breakage Fees due to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust for the benefit of such Purchaser and applied other Purchaser Party for the immediately preceding Yield Period, plus, if applicable, the amount of any such Yield, Fees and any Breakage Fees payable for any prior Yield Period to the extent such amount has not been distributed to such Purchaser or Purchaser Party;
(iv) fourth, as set forth in accordance with clause (iiix) or (y) below;, as applicable:
Appears in 2 contracts
Sources: Receivables Purchase Agreement (NCR Atleos Corp), Receivables Purchase Agreement (NCR Corp)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:Servicer in accordance with this Agreement, including Section 1.4(g):
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Groupthe Secured Parties, out of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each the Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Purchasers, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, be automatically reinvested, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestremit such remainder to the Seller or reinvest, but shall set aside and hold in trust for the Administrator (for the benefit of the Purchasers Secured Parties) (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%% (determined as if such Collections set aside had been applied to reduce the Aggregate Capital or LC Participation Amount, as applicable, at such time), which amount shall either (x) be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to Purchasers) or (y) be applied deposited in reduction of their respective Capital) the LC Collateral Account, in each case, as applicable, on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that (x) in the case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (a “Declining Notice”) to its Purchaser Agent and the Facility Termination Date has been extended Administrator that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to Section 1.11 and this clause (ii) or (y) in the case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”) to its Purchaser Agent and the AdministratorAdministrator of its refusal, following any request by the Seller and to extend the Servicer of such Purchaser’s refusal, pursuant to Section 1.11then Facility Termination Date, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”), then in either case set forth in clause (x) then or (y) above, such Purchaser’s ratable share (determined according to outstanding Capital) of Collections shall not be Reinvested reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;
(iii) if such day is a Termination Day (or any day following the provision of a Declining Notice or an Exiting Notice), set aside, segregate and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator), the entire remainder of such Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Capital; provided, that solely for purposes of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice, as the case may be, until the date such Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Declining Conduit Purchaser’s or Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchasers in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated)); provided, further, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of a Declining Notice or an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and the Majority Purchaser Agents (or, in the case of a Declining Notice or an Exiting Notice, such Declining Notice or Exiting Notice, as the case may be, has been revoked by the related Declining Conduit Purchaser or Exiting Purchaser, respectively, and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on the Aggregate Capital (or the Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably in accordance with each Purchaser’s Capital, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of Declining Notice or Exiting Notice, as the case may be; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (w) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (x) the amounts that are required to be set aside pursuant to clause (i), the provisos to clause (ii) and clause (iii) plus (y) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the Purchaser Agents, the Administrator, and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit into each Purchaser Agent’s account, on each Settlement Date, Collections held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to clause (b)(i) or (f) plus the amount of Collections then held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if Arch Sales or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified Arch Sales (or such Affiliate) that such right is revoked, Arch Sales (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the aggregate of each Purchasers’ Share of the Servicing Fee. On or prior to the last day of each Settlement Period, each Purchaser Agent will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in clause (c) above as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to each Purchaser Agent ratably according to the Discount accrued during such Settlement Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Capital maintained by such Purchasers and all accrued Fees; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within such Purchaser Agent’s Purchaser Group ratably according to Discount and Fees, respectively, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if Arch Sales or an Affiliate thereof is not the Servicer, to the Servicer in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second, to each Purchaser Agent ratably (based on the aggregate accrued and unpaid Discount and Fees payable to all Purchasers at such time) (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group and all accrued Fees, third, to each Purchaser Agent ratably according to the aggregate of the Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%) (determined as if such Collections had been applied to reduce the Aggregate Capital); it being understood that each Purchaser Agent shall distribute the amounts described in the first, second and third clauses of this Section 1.4(d)(ii) to the Purchasers within such Purchaser Agent’s Purchaser Group ratably according to Discount, Fees and Capital, respectively, fourth, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants (x) the amount necessary to cash collateralize the LC Participation Amount until the amount of cash collateral held in such LC Collateral Account (other than amount representing LC Fee Expectation) equals 100% of the LC Participation Amount (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%) (determined as if such Collections had been applied to reduce the aggregate outstanding amount of the LC Participation Amount) and (y) if such day is a Termination Day of the type described in clause (b) of the definition thereof or a Termination Event is continuing, an amount equal to the LC Fee Expectation at such time (or such portion thereof not currently on deposit in the LC Collateral Account), fifth, if the Aggregate Capital and accrued Aggregate Discount with respect to each Portion of Capital for all Purchaser Groups have been reduced to zero, and the aggregate of the Purchasers’ Share of all accrued Servicing Fees payable to the Servicer (if other than Arch Sales or an Affiliate thereof) have been paid in full, to each Purchaser Agent ratably, based on the amounts payable to each Purchaser in such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group), the Administrator and any other Secured Party in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder, and sixth, to the Servicer (if the Servicer is Arch Sales or an Affiliate thereof) in payment in full of the aggregate of the Purchasers’ Share of all accrued Servicing Fees. After the Aggregate Capital, Aggregate Discount, fees payable pursuant to the Fee Letters and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, and (on and after a Termination Day) after an amount equal to 100% of the LC Participation Amount and the LC Fee Expectation has been deposited in the LC Collateral Account, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller, any Affiliate of the Seller, any Originator, the Transferor, the Servicer or any Affiliate of the Servicer, or any setoff, netting of obligations or dispute between the Seller, any Affiliate of the Seller, any Originator, the Transferor, the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and shall immediately pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of the Secured Parties pursuant to Section 1.4;
(ii) if on any day any of the representations or warranties in Sections l(j) or 3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full and shall immediately pay any and all such amounts in respect thereof to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Secured Parties and for application pursuant to Section 1.4;
(iii) except as provided in clause (i) or (ii), or as otherwise required by Applicable Law or the relevant Contract, all Collections of any Receivable shall be applied to the Receivables of the applicable Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in substantially the form of Annex C (each, a “Paydown Notice”) (A) at least two Business Days prior to the date of such reduction for any reduction of the Aggregate Capital less than or equal to $20,000,000 and (B) at least five Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $20,000,000, in each case such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) (A) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction or (B) the Seller shall remit to each Purchaser Agent’s account (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group), in immediately available funds, an amount equal to the desired amount of such reduction together with accrued and unpaid Aggregate Discount, and Aggregate Discount to accrue through the next
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Core Natural Resources, Inc.), Receivables Purchase Agreement (Arch Resources, Inc.)
Settlement Procedures. (a) The collection Collection of the Pool Receivables --------------------- shall be administered by the Servicer Collection Agent, in accordance with the terms of this Agreement. The Seller Transferor shall provide to the Servicer Collection Agent on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer Collection Agent shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shallit, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of Transferees such Collections and shall deposit into the Purchasers Administrative Agent's Account,
(i) on each Settlement Date, from such Collections, an amount equal to accrued and shallunpaid Yield and any fees owed to the Administrative Agent pursuant to Section 1.04(a);
(ii) on each Settlement Date, at an amount equal to the request of Collection Agent Fee accrued but unpaid during the Administratorpreceding Settlement Period; and
(iii) on each Settlement Date, segregate in a separate account approved by from such Collections, an amount equal to the Administrator) a portion of such Collections thatreceived during the preceding Settlement Period remaining after application pursuant to the preceding clauses (i) and (ii); provided that prior to the Facility Termination Date, together with the other Collections set aside amount -------- to be deposited pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;will not exceed the product of (A) a fraction, the numerator of which is the Required Balance and the denominator of which is the aggregate Outstanding Balance of the Related Contracts and (B) the amount of such Collections; provided, however, that the aggregate amount deposited pursuant to this -------- ------- subsection (b) shall not exceed the sum of the Aggregate Capital of, and accrued Yield and Collection Agent Fee on, the Receivables plus the aggregate of any other amounts then owed by the Transferor to any Transferee, the Administrative Agent or Affected Person hereunder. Notwithstanding the foregoing, unless a Trigger Event or Potential Trigger Event has occurred, for so long as the Originator is the Collection Agent, the Collection Agent shall not be required to set aside Collections, but may commingle the Collections with its own funds and make the deposits required to the Administrative Agent's Account pursuant to this paragraph (b) on the dates required. For so long as the Originator is the Collection Agent, the Collection Agent shall not be required to deposit the Collection Agent Fee to the Administrative Agent's Account as required by clause (ii) of this paragraph (b) but may retain such fee from the Collections remaining after the deposits required pursuant to clause (i) of this paragraph (b).
(i) Upon receipt of funds deposited into the Administrative Agent's Account pursuant to subsection (b)(i) or (b)(ii) above, the Administrative Agent shall distribute such funds, together with any funds received in respect of the PARCO Cap, as follows: Pro Rata to each Transferee in payment of accrued but unpaid Yield on the Capital of such Transferee and to the Administrative Agent in respect of any fees owed pursuant to
Appears in 2 contracts
Sources: Receivables Transfer Agreement (Ikon Office Solutions Inc), Receivables Transfer Agreement (Ios Capital Inc)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the U.S. Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers Secured Parties (and shallor, at the request of if so requested by the Administrator, segregate in a separate account approved designated by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s an account (maintained and controlled by the Administrator unless the Administrator otherwise instructs in its sole discretion), for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date application in accordance with Section 1.4(cthe priority of payments set forth below, all Collections on Pool Receivables that are received by the U.S. Servicer or the U.S. Borrower or received in any Lock-Box Account the customer of record of which at the applicable Lock-Box Bank is the U.S. Borrower (each such Lock-Box Account, a “U.S. Lock-Box Account”); provided, furtherhowever, that if so long as each of the Facility Termination Date has been extended pursuant to conditions precedent set forth in Section 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) 3 of Exhibit II are satisfied on such date, the U.S. Servicer may release to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then U.S. Borrower from such Collections shall not be Reinvested and shall instead be held in trust the amount (if any) necessary to pay (i) the purchase price for Receivables purchased by the benefit of U.S. Borrower on such Purchaser and applied date in accordance with clause the terms of the U.S. Sale Agreement or (ii) amounts owing by the U.S. Borrower to the U.S. Originators under the Company Notes issued to the U.S. Originators (each such release, a “U.S. Collections Release”). On each Settlement Date, the U.S. Servicer (or, following its assumption of control of the U.S. Lock-Box Accounts, the Administrator) shall, distribute such Collections in the following order of priority:
(i) first, to the U.S. Servicer for the payment of the accrued Servicing Fees payable to it for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable to it for any prior Interest Period to the extent such amount has not been distributed to the U.S. Servicer);
(ii) second, to each Lender and other Credit Party (ratably, based on the amount then due and owing), the U.S. Borrower’s Share of all accrued and unpaid Interest and Fees due to such Lender and other Credit Party accrued during the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 1.10 and 3.1 in respect of such payments), plus, if applicable, the U.S. Borrower’s Share of the amount of any such Interest and Fees (including any additional amounts or indemnified amounts payable under Sections 1.10 and 3.1 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (x), (y) or (z) below;, as applicable:
Appears in 2 contracts
Sources: Receivables Financing Agreement (Cincinnati Bell Inc), Receivables Financing Agreement (Cincinnati Bell Inc)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser GroupIssuer, out of the Issuer's Share of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group the Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Issuer's Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Issuer, the remainder of the Issuer's Share of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestreinvest, but shall set aside and hold in trust for the benefit of the Purchasers Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,
(iii) if such day is a Termination Day, which amount shall be deposited ratably to each Purchaser Agent’s set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account (approved by the Administrator) for the benefit Issuer the entire remainder of its related Purchasers and to be applied in reduction the Issuer's Share of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c)Collections; provided, further, that if amounts are set aside and held in trust on any Termination Day of the Facility type described in clause (a) of the definition of "Termination Date has been extended pursuant to Day" and, thereafter, the conditions set forth in Section 1.11 and any Purchaser (2 of Exhibit II are satisfied or its Purchaser Agent) has provided notice (an “Exiting Notice”) to waived by the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections previously set-aside amounts shall not be Reinvested and shall instead be held in trust for the benefit of such Purchaser and applied reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) below;plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller's Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Kulicke & Soffa Industries Inc), Receivables Purchase Agreement (Royal Appliance Manufacturing Co)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestreinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective CapitalPurchasers) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if (x) in the Facility Termination Date has been extended pursuant to Section 1.11 and case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (or a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s either its refusal, pursuant to Section 1.111.12, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then in either case (x) or (y), above, such Collections shall not be Reinvested reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii), below.
(iii) if such day is a Termination Day (or any day following the provision of a Declining Notice or an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser an amount equal to such Purchaser’s ratable share of such Collections based on its Capital; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice, as the case may be, until the date such Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Declining Conduit Purchaser’s or Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of a Declining Notice or an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and the Majority Purchaser Agents (or in the case of a Declining Notice or an Exiting Notice, such Declining Notice or Exiting Notice, as the case may be, has been revoked by the related Declining Conduit Purchaser or Exiting Purchaser, respectively and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Capital (or the Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably in accordance with each Purchaser’s Capital, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of Declining Notice or Exiting Notice, as the case may be, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into each applicable Purchaser’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), (x) on each Monthly Settlement Date in the case of Collections held for each Purchaser with respect to such Purchaser’s Portion(s) of Capital pursuant to clause (b)(i) and (y) on each Weekly Settlement Date, in the case of Collections then held for such Purchaser pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if FleetCor or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified FleetCor (or such Affiliate) that such right is revoked, FleetCor (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the aggregate of each Purchasers’ Share of the Servicing Fee.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Capital maintained by such Purchasers and accrued Fees (other than Servicing Fees); it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Monthly Settlement Date) in payment in full of the aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first if FleetCor or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second to each Purchaser Agent ratably (based on the aggregate accrued and unpaid Discount payable to all Purchasers at such time) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third to each Purchaser Agent ratably according to the aggregate of the Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the first and second clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Discount and Capital, respectively, fourth, if the Aggregate Capital and accrued Aggregate Discount with respect to each Portion of Capital for all Purchaser Groups have been reduced to zero, and the Purchasers’ Share of all accrued Servicing Fees payable to the Servicer (if other than FleetCor or an Affiliate thereof) have been paid in full, to each Purchaser Group ratably, based on the amounts payable to each (for the benefit of the Purchasers within such Purchaser Group), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder and, fifth, to the Servicer’s own account (if the Servicer is FleetCor or an Affiliate thereof) in payment in full of the aggregate of the Purchasers’ Share of all accrued Servicing Fees. After the Aggregate Capital, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer or any other Person (including, if applicable, the originator of such Receivable), or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and shall immediately pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4;
(ii) if on any day any of the representations or warranties in Sections 1(j) or 3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full and shall immediately pay any and all such amounts to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to this Section 1.4 (Collections deemed to have been received pursuant to clause (i) or (ii) of this paragraph (e) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) except as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex F (each, a “Paydown Notice”) (A) at least one Business Day prior to the date of such reduction for any reduction of the Aggregate Capital less than or equal to $15,000,000 (or such greater amount as agreed to by the Administrator and the Majority Purchaser Agents) and (B) at least 3 Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $15,000,000, and each such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Capital, for payment to each such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) on the next Weekly Settlement Date with respect to any Portions of Capital maintained by such Purchaser immediately following the related current Yield Period, and the Aggregate Capital (together with the Capital of any related Purchaser) shall be deemed reduced in the amount to be paid to such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) only when in fact finally so paid; provided, that:
(A) the amount of any such reduction shall be not less than $100,000 for each Purchaser Group and shall be an integral multiple of $100,000, and the entire Aggregate Capital after giving effect to such reduction shall be not less than $20,000,000; and
(B) with respect to any Portion of Capital, the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Yield Period.
Appears in 2 contracts
Sources: Receivables Purchase Agreement, Receivables Purchase Agreement (Fleetcor Technologies Inc)
Settlement Procedures. (a) The collection Collection of the Pool Receivables shall be administered by the Servicer Servicers in accordance with the terms of this Agreement. The Each Seller shall provide to the Servicer Servicers on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased InterestAssets Coverage Percentage.
(b) The Each Applicable Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the a Seller or Servicer, transfer (or cause to be transferred) such Collections from the ServicerLock-Box Accounts and deposit (or cause to be deposited) such Collections into a Collection Account, except as otherwise permitted pursuant to Section 4.3(a). With respect to all Collections on deposit in the Collection Accounts on such day, the Servicers shall:
(i) set aside and hold maintain in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) Collection Accounts for the benefit of each the Purchaser Group(and, in the case of clause fourth below, the other applicable Purchaser Parties, subject to their right to receive such amounts solely in accordance with the priorities for payment set forth in Section 1.6(d) below), out of such Collections, (x) first an amount equal to the Aggregate all Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter sum of the Used Fees, Unused Fees and Breakage Costs accrued and unpaid through such dayday and not previously set aside, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside and fourth, to the extent funds are available therefor, any other amounts (other than return of Capital) owed to any Purchaser Party pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4 and not previously set aside;
(ii) subject to Section 1.4(f1.6(f), if such day is not a Termination Day, remit to the Seller, ratablySellers, on behalf of each Purchaser Groupthe Purchaser, the remainder of such Collections. Such remainder shall, (x) to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s of Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections Purchased Assets and other proceeds with respect thereto and (each such reinvestmenty) to the extent not representing a return of Capital, a “Reinvestment,” and “Reinvest” shall have be paid (on behalf of the correlative meaning)Purchaser) to the Sellers in respect of the Deferred Purchase Price for the Purchased Assets; provided, however, that if if, after giving effect to such Reinvestment, the Purchased Interest Assets Coverage Percentage would exceed 100%, then the Servicer shall not Reinvest, but Servicers shall set aside and hold maintain in trust the Collection Accounts for the benefit of the Purchasers Purchaser in accordance with clause (and shall, at iii) below the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such remaining Collections that, together with the any other Collections set aside pursuant to this paragraphclause (ii), shall equal equals the amount necessary to reduce the Purchased Interest Assets Coverage Percentage to 100% (or, if all such remaining Collections are not sufficient to reduce the Purchased Assets Coverage Percentage to 100%, which amount then all such remaining Collections shall be deposited ratably to each Purchaser Agent’s account (so set aside for the benefit of its related Purchasers and to be applied in reduction the Purchaser), rather than remitting all of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) such remaining Collections to the AdministratorSellers for Reinvestment or for payment of the Deferred Purchase Price;
(iii) if such day is a Termination Day, set aside and maintain in the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust Collection Account for the benefit of the Purchaser Parties the entire remainder of such Purchaser Collections; and
(iv) subject to Section 1.6(f), pay to the Sellers (on behalf of the Purchaser) for the Sellers’ own accounts and applied in payment of the Deferred Purchase Price for the Purchased Assets, any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) above, plus (y) the amounts that are required to be set aside pursuant to clause (i) above, pursuant to the proviso to clause (ii) above and pursuant to clause (iii) belowabove, plus (z) all reasonable and appropriate out-of-pocket costs and expenses of the Servicers for servicing, collecting and administering the Pool Receivables.
(c) On each Settlement Date, each Applicable Servicer shall (i) deposit into the applicable Purchaser’s Account (or such other account designated by the Agent) all Collections held on deposit in each Collection Account for the benefit of the Purchaser Parties pursuant to Section 1.6(b) and Section 1.6(f) and (ii) deposit to each Servicer’s own account, from Collections held on deposit in the Collection Account pursuant to clause third of Section 1.6(b)(i) in respect of the accrued Servicing Fee, an amount equal to such Servicer’s portion of such accrued Servicing Fee; provided, however, that no amounts shall be payable to Garland under clause (ii) above.
(d) Upon receipt of funds deposited into any of the Purchaser’s Accounts pursuant to Section 1.6(c), the Agent shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day, such funds shall be distributed in the following order of priority: first to the Purchaser in payment in full of all unpaid Discount accrued during the most recently ended Discount Accrual Period, second to the Purchaser in payment in full of all unpaid Used Fees, Unused Fees and Breakage Costs accrued during the most recently ended Discount Accrual Period, third to the Purchaser in payment of outstanding Capital (and accrued Discount thereon) to the extent that funds have been set aside for such purpose pursuant to Section 1.6(f), fourth to the Purchaser, the Agent and any other Purchaser Party in payment in full of any other amounts owed thereto pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4 and fifth, any remaining amounts shall be paid to the Purchaser in payment of outstanding Capital; and
(ii) if such distribution occurs on a Termination Day, such funds shall be distributed in the following order of priority: first to the Purchaser in payment in full of all accrued and unpaid Discount, second to the Purchaser in payment in full of all accrued and unpaid Used Fees, Unused Fees and Breakage Costs, third to the Purchaser in payment in full of all outstanding Capital, and fourth to the Purchaser, the Agent and any other Purchaser Party in payment in full of any other amounts owed thereto by any Seller or any Servicer hereunder (including, without limitation, pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4) or under any other Transaction Document. After the occurrence of the Final Payout Date, all additional Collections with respect to the Purchased Assets shall be paid to the Sellers for their own accounts in payment of the Deferred Purchase Price for the Purchased Assets.
(e) For the purposes of this Section 1.6:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, damaged, rejected, returned, repossessed or foreclosed goods or services, or any discount, rebate, credit, counterclaim, billing error or other adjustment made by any Seller, Originator or Servicer, or any setoff or dispute between any Seller, Originator or Servicer and any Obligor, the Seller of such Pool Receivable shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in paragraphs (e), (f) or (k) of Section 1 of Exhibit III is not true with respect to any Pool Receivable, the Seller of such Pool Receivable shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) If an Obligor makes a payment but does not designate the Receivable to which such payment applies, then the Applicable Servicer shall contact such Obligor promptly in order to determine to which Receivable such payment relates; provided, that if the Obligor does not direct the Applicable Servicer to apply such payment to a particular Receivable or Receivables within thirty (30) days after such payment has been received in a Lock-Box Account or by the Applicable Servicer, then, except as otherwise required by applicable law or the relevant Contract, such payment shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable; and
(iv) if and to the extent the Agent, the Purchaser or any other Indemnified Party shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller of the relevant Pool Receivable and, accordingly, the Agent or the Purchaser, as the case may be, shall have a claim against such Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time a Seller shall wish to cause the reduction of the Aggregate Capital (in whole or in part), such Seller may do so as follows:
(i) such Seller shall give the Agent at least (x) one (1) Business Day’s prior written notice thereof in the case of any reduction of the aggregate U.S. Capital or (y) one (1) Business Day’s prior written notice in the case of any reduction of the aggregate CAD Capital, EUR Capital or GBP Capital, in either case, in the form of Annex C (each, a “Paydown Notice”) setting forth the proposed amount of such reduction, the proposed date on which such reduction will commence (the “Paydown Date”) and the Approved Currency of the Capital to be reduced;
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections in the applicable Approved Currency with respect to the Capital or portion thereof to be reduced (including to any related Discount) not to be reinvested or used to pay the Deferred Purchase Price until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Applicable Servicer shall hold such Collections in a Collection Account for the benefit of the Purchaser, for payment to the Purchaser’s Account on the next Settlement Date (and in the case of a reduction of the entire Investment, the Servicers shall hold in the Collection Accounts for payment on such date an amount equal to all other obligations of the Sellers or Servicers to the Purchaser, the Agent and each other Purchaser Party hereunder) in accordance with Section 1.6(c), and the Aggregate Capital shall be deemed reduced in the amount to be paid to the Purchaser’s Account only when in fact finally so paid; provided that, the amount of any such reduction shall be not less than (A) one million U.S. Dollars ($1,000,000) or an integral multiple of one hundred thousand Dollars ($100,000) in excess thereof for reductions of U.S. Capital, (B) one million Euros (€1,000,000) or an integral multiple of one hundred thousand Euros (€100,000) in excess thereof for reductions of Euro Capital, (C) one million Canadian Dollars (CAD 1,000,000) or an integral multiple of one hundred thousand Canadian Dollars (CAD 100,000) in excess thereof for reductions of CAD Capital, and (D) one million GBP (£1,000,000) or an integral multiple of one hundred thousand GBP (£100,000) in excess thereof for reductions of GBP Capital, in each case, unless the aggregate U.S. Capital, Euro Capital, CAD Capital or GBP Capital, as applicable, shall have been reduced to zero.
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Manitowoc Co Inc), Receivables Purchase Agreement (Manitowoc Co Inc)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:Servicer in accordance with this Agreement, including Section 1.4(g):
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Groupthe Secured Parties, out of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each the Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Purchasers, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, be automatically reinvested, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestremit such remainder to the Seller or reinvest, but shall set aside and hold in trust for the Administrator (for the benefit of the Purchasers Secured Parties) (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%% (determined as if such Collections set aside had been applied to reduce the Aggregate Capital or LC Participation Amount, as applicable, at such time), which amount shall either (x) be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to Purchasers) or (y) be applied deposited in reduction of their respective Capital) the LC Collateral Account, in each case, as applicable, on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that (x) in the case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (a “Declining Notice”) to its Purchaser Agent and the Facility Termination Date has been extended Administrator that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to Section 1.11 and this clause (ii) or (y) in the case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”) to its Purchaser Agent and the AdministratorAdministrator of its refusal, following any request by the Seller and to extend the Servicer of such Purchaser’s refusal, pursuant to Section 1.11then Facility Termination Date, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”), then in either case set forth in clause (x) then or (y) above, such Purchaser’s ratable share (determined according to outstanding Capital) of Collections shall not be Reinvested reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;
(iii) if such day is a Termination Day (or any day following the provision of a Declining Notice or an Exiting Notice), set aside, segregate and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator), the entire remainder of such Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Capital; provided, that solely for purposes of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice, as the case may be, until the date such Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Declining Conduit Purchaser’s or Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchasers in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated)); provided, further, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of a Declining Notice or an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and the Majority Purchaser Agents (or, in the case of a Declining Notice or an Exiting Notice, such Declining Notice or Exiting Notice, as the case may be, has been revoked by the related Declining Conduit Purchaser or Exiting Purchaser, respectively, and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on the Aggregate Capital (or the Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably in accordance with each Purchaser’s Capital, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of Declining Notice or Exiting Notice, as the case may be; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (w) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (x) the amounts that are required to be set aside pursuant to clause (i), the provisos to clause (ii) and clause (iii) plus (y) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the Purchaser Agents, the Administrator, and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit into each Purchaser Agent’s account, on each Settlement Date, Collections held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to clause (b)(i) or (f) plus the amount of Collections then held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if Arch Sales or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified Arch Sales (or such Affiliate) that such right is revoked, Arch Sales (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the aggregate of each Purchasers’ Share of the Servicing Fee. On or prior to the last day of each Settlement Period, each Purchaser Agent will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in clause (c) above as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Capital maintained by such Purchasers and all accrued Fees; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within such Purchaser Agent’s Purchaser Group ratably according to Discount and Fees, respectively, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if Arch Sales or an Affiliate thereof is not the Servicer, to the Servicer in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second, to each Purchaser Agent ratably (based on the aggregate accrued and unpaid Discount and Fees payable to all Purchasers at such time) (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group and all accrued Fees, third, to each Purchaser Agent ratably according to the aggregate of the Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%) (determined as if such Collections had been applied to reduce the Aggregate Capital); it being understood that each Purchaser Agent shall distribute the amounts described in the first, second and third clauses of this Section 1.4(d)(ii) to the Purchasers within such Purchaser Agent’s Purchaser Group ratably according to Discount, Fees and Capital, respectively, fourth, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants (x) the amount necessary to cash collateralize the LC Participation Amount until the amount of cash collateral held in such LC Collateral Account (other than amount representing LC Fee Expectation) equals 100% of the LC Participation Amount (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%) (determined as if such Collections had been applied to reduce the aggregate outstanding amount of the LC Participation Amount) and (y) if such day is a Termination Day of the type described in clause (b) of the definition thereof or a Termination Event is continuing, an amount equal to the LC Fee Expectation at such time (or such portion thereof not currently on deposit in the LC Collateral Account), fifth, if the Aggregate Capital and accrued Aggregate Discount with respect to each Portion of Capital for all Purchaser Groups have been reduced to zero, and the aggregate of the Purchasers’ Share of all accrued Servicing Fees payable to the Servicer (if other than Arch Sales or an Affiliate thereof) have been paid in full, to each Purchaser Agent ratably, based on the amounts payable to each Purchaser in such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group), the Administrator and any other Secured Party in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder, and sixth, to the Servicer (if the Servicer is Arch Sales or an Affiliate thereof) in payment in full of the aggregate of the Purchasers’ Share of all accrued Servicing Fees. After the Aggregate Capital, Aggregate Discount, fees payable pursuant to the Fee Letters and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, and (on and after a Termination Day) after an amount equal to 100% of the LC Participation Amount and the LC Fee Expectation has been deposited in the LC Collateral Account, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller, any Affiliate of the Seller, any Originator, the Transferor, the Servicer or any Affiliate of the Servicer, or any setoff, netting of obligations or dispute between the Seller, any Affiliate of the Seller, any Originator, the Transferor, the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and shall immediately pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of the Secured Parties pursuant to Section 1.4;
(ii) if on any day any of the representations or warranties in Sections l(j) or 3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full and shall immediately pay any and all such amounts in respect thereof to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Secured Parties and for application pursuant to Section 1.4;
(iii) except as provided in clause (i) or (ii), or as otherwise required by Applicable Law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in substantially the form of Annex C (each, a “Paydown Notice”) (A) at least two Business Days prior to the date of such reduction for any reduction of the Aggregate Capital less than or equal to $20,000,000 and (B) at least five Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $20,000,000, in each case such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) (A) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction or (B) the Seller shall remit to each Purchaser Agent’s account (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group), in immediately available funds, an amount equal to the desired amount of such reduction together with accrued and unpaid Aggregate Discount, and Aggregate Discount to accrue throug
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Arch Coal Inc), Receivables Purchase Agreement (Arch Coal Inc)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request of the AdministratorAdministrative Agent, segregate in a separate account approved designated by the Administrator) a portion Administrative Agent, which shall be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Seller or received in any Lock-Box or Collection Account or in any HSBC Exception Account; provided, however, that so long as each of the conditions precedent set forth in Section 5.03 are satisfied on such date, the Servicer may release to the Seller from such Collections that, together the amount (if any) necessary to pay (i) the purchase price for Receivables purchased by the Seller on such date in accordance with the other Collections set aside terms of the applicable Purchase and Sale Agreement or (ii) amounts owing by the Seller to any Originator under any Intercompany Loan Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Collection Accounts pursuant to this paragraphSection 8.03, shall equal the Administrative Agent) shall, distribute such Collections in the following order of priority:
(i) first, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Yield Period (plus, if applicable, the amount necessary of Servicing Fees payable for any prior Yield Period to reduce the Purchased Interest extent such amount has not been distributed to 100%the Servicer);
(ii) second, which amount shall be deposited ratably to the Administrative Agent for distribution to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) ratably, based on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.11 amount then due and owing each Purchaser and any related Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) Party), all accrued and unpaid Yield, Fees and Breakage Fees due to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust for the benefit of such Purchaser and applied 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 accordance with clause respect of such payments), 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;
(iii) third, as set forth in clause (x), (y) or (z) below;, as applicable:
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Centric Brands Inc.), Receivables Purchase Agreement (Centric Brands Inc.)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the AdministratorAdministrator (with the consent or at the direction of the Majority Purchasers), segregate in a separate account approved by the AdministratorAdministrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of the Purchasers’ Share of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital Investment and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Share of the Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of the Purchasers’ Share of such Collections. Such remainder shall, to the extent representing a return on the Aggregate CapitalInvestment, ratably, according to each Purchaser’s CapitalInvestment, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestreinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the AdministratorAdministrator (with the consent or at the direction of the Majority Purchasers), segregate in a separate account approved by the AdministratorAdministrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,
(iii) if such day is a Termination Day, which set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Purchasers’ Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers, such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into each applicable Purchaser’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date, Collections held for each Purchaser with respect to such Purchaser’s Portion(s) of Investment pursuant to clause (b)(i) or (f) plus the amount of Collections then held for such Purchaser pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if Worthington or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified Worthington (or such Affiliate) that such right is revoked, (or such Affiliate) Worthington may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Purchasers’ Share of the Servicing Fee. On or before the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer by facsimile of the amount of the Discount accrued with respect to each such Portion of Investment during the related Yield Period then ending.
(d) The Servicer shall be deposited ratably distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to each Purchaser Agent’s account Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its related Purchaser Group ratably according to Discount, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first if Worthington or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second to each Purchaser Agent ratably according to Discount (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the first and second clauses of this Section 1.4(d)(ii) to be applied the Purchasers within its Purchaser Group ratably according to Discount and Investment, respectively, fourth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than Worthington or an Affiliate thereof) have been paid in reduction full, to each Purchaser Group ratably (for the benefit of their respective Capitalthe Purchasers within such Purchaser Group) on the next Weekly Settlement Date in accordance with Section 1.4(c); providedits Ratable Share, furtherthe Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder and, that fifth, to the Servicer’s own account (if the Facility Termination Date has been extended Servicer is Worthington or an Affiliate thereof) in payment in full of the Aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to Section 1.11 each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Purchaser’s refusalPool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III is not true with respect to any Pool Receivable, pursuant the Seller shall be deemed to Section 1.11have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to extend the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or its related Committed Purchaser’sany trustee, receiver, custodian or similar official in any Insolvency Proceeding) Commitment hereunder any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(an “Exiting Purchaser”f) then If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer (A) at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment less than or equal to $10,000,000 and (B) at least ten Business Days’ prior written notice thereof for any reduction of Aggregate Investment greater than $10,000,000 (in each case such notice shall include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections shall not be Reinvested and shall instead be held in trust for the benefit of each Purchaser ratably according to its Investment, for payment to each such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) on the (i) next Settlement Date with respect to any Portions of Investment maintained by such Purchaser immediately following the related current Yield Period or (ii) such other date approved by the Administrator with at least five Business Days prior written notice to the Administrator of such payment, and applied the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in accordance the amount to be paid to such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) only when in fact finally so paid; provided, that:
(A) the amount of any such reduction shall be not less than $1,000,000 for each Purchaser Group and shall be an integral multiple of $500,000, and the entire Aggregate Investment after giving effect to such reduction shall be not less than $50,000,000 and shall be in an integral multiple of $1,000,000 (unless the Aggregate Investment shall have been reduced to zero); and
(B) with clause (iii) below;respect to any Portion of Investment, the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Yield Period.
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Worthington Industries Inc), Receivables Purchase Agreement (Worthington Industries Inc)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Each Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request of the AdministratorAdministrative Agent, segregate in a separate account approved by the AdministratorAdministrative Agent), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by such Servicer or any SPV Entity or received in any Lock-Box or Lock-Box Account; provided, however, that (A) the Servicers may from time to time release to the applicable SPV Entity from such Collections received on Unsold Receivables the amount (if any) necessary to pay the purchase price for Receivables purchased by such SPV Entity on such date in accordance with the terms of the applicable Purchase and Sale Agreement and (B) the U.S. Servicer may, on any day and if so requested by the Seller, release to the Seller all or a portion of such Collections received on Sold Receivables in exchange for the Seller designating on such day 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 on such day (each such release of Collections described in clauses (A) and (B) above, a “Release”); provided that, together with for the other avoidance of doubt, any Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount that are not so Released shall be deposited ratably to each Purchaser Agent’s account (held in trust by the Servicers for the benefit of its related Purchasers the Secured Parties or segregated and to be applied held in reduction of their respective Capital) a separate account approved by the Administrative Agent unless and until such Collections are Released or distributed on the next Weekly a Settlement Date Date, in each case, in accordance with Section 1.4(c)the terms hereof. On each Settlement Date, the Servicers (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections in the following order of priority:
(i) first, to each Lock-Box Bank, the amount of any fees, costs or expenses payable to such Lock-Box Bank by any SPV Entity in connection with maintaining its related Lock-Box Account(s) to the extent that such Lock-Box Bank is permitted to debit or otherwise pay itself such fees, costs or expenses from funds on deposit in such Lock-Box Account(s) pursuant to the terms of the applicable Lock-Box Agreement; provided, furtherthat the payment of such fees, costs and expenses from Collections on deposit in such Lock-Box Accounts on days other than Settlement Dates in accordance with the terms of the applicable Lock-Box Agreements shall not constitute a breach or default under this Agreement for any purpose;
(ii) second, to each Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Yield Period (plus, if applicable, the amount of Servicing Fees payable for any prior Yield Period to the extent such amount has not been distributed to such Servicer) plus any applicable Canadian Sales Taxes thereon;
(iii) third, to each Purchaser and other Purchaser Party (ratably, based on the amount then due and owing), all accrued and unpaid Yield and Fees and Breakage Fees due to such Purchaser and other Purchaser Party for the immediately preceding Yield Period, plus, if applicable, the amount of any such Yield, Fees and Breakage Fees payable for any prior Yield Period to the extent such amount has not been distributed to such Purchaser or Purchaser Party;
(iv) fourth, as set forth in clause (x) or (y) below, as applicable:
(x) prior to the occurrence of the Maturity Date, 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, an aggregate amount (if any) necessary to cause no Capital Coverage Deficit (determined using the Capital Coverage Amount calculated as of the last day of the preceding Fiscal Month assuming that if the Facility Termination Date has been extended pursuant amount described in clause (a)(ii) of the definition of “Capital Coverage Amount” is zero) to Section 1.11 exist; or
(y) on and any after the occurrence of the Maturity Date, to each Purchaser (or its ratably, based on the aggregate outstanding Capital of each Purchaser Agentat such time) has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust for the benefit payment in full of the aggregate outstanding Capital of such Purchaser and applied in accordance with clause (iii) belowat such time;
Appears in 2 contracts
Sources: Receivables Purchase Agreement (NCR Corp), Receivables Purchase Agreement (NCR Corp)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Master Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request of the AdministratorAdministrative Agent, segregate in a separate account approved designated by the AdministratorAdministrative 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 Master Servicer or the Seller or received in any Lock-Box or Collection Account (including any amounts remitted to the Master Servicer pursuant to Section 9.04(d)); provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, (A) the Master 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 Sale Agreement or (y) amounts owing by the Seller to any Originator under any Subordinated Notes and (B) the Master Servicer may release to the Seller all or a portion of such Collections that, together with received on Sold Receivables in exchange for the other Collections set aside 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 this paragraphSection 2.01(e), shall equal 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 Settlement Date, the Master Servicer (or, following its assumption of control of the Collection Accounts, the Administrative Agent) shall, distribute such Collections in the following order of priority:
(i) first, to the Master Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Yield Period (plus, if applicable, the amount necessary of Servicing Fees payable for any prior Yield Period to reduce the Purchased Interest extent such amount has not been distributed to 100%the Master Servicer);
(ii) second, which amount shall be deposited ratably to the Administrative Agent for distribution to each Purchaser Agent’s account and other Purchaser Party (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) ratably, based on the next Weekly Settlement Date in accordance with Section 1.4(camount then due and owing); provided, further, that if the Facility Termination Date has been extended pursuant all accrued and unpaid Yield and Fees due to Section 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust for the benefit of such Purchaser and applied 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 accordance with clause respect of such payments), plus, if applicable, the amount of any such Yield and 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;
(iii) third, as set forth in clause (x), (y) or (z) below;, as applicable:
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Nabors Industries LTD), Receivables Purchase Agreement (Nabors Industries LTD)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any the Facility Termination Day Date and current computations of the Purchased InterestInterest (and the components thereof).
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the AdministratorAdministrator after the occurrence of an Unmatured Termination Event or Termination Event, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the sum of (w) the Aggregate Discount accrued through such day for each Portion portion of Capital and not previously set aside, (yx) an amount equal to the fees set forth in each Purchaser Group Fee Letter owing to the Purchasers and the Administrator accrued and unpaid through such day, and (zy) all other amounts then due and payable by the Seller under this Agreement to the extent funds are available thereforPurchasers, an amount equal to the aggregate of each Purchasers’ Share of Purchaser Agents, the Servicing Fee accrued through such day Administrator, and not previously set asideany other Indemnified Party or Affected Person;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder the Collections not set aside pursuant to clause (b)(i) of this Section 1.4 shall, to the extent representing a return on the Aggregate of Capital, ratably, be automatically Reinvested according to each Purchaser’s Capital, be automatically reinvested Capital in Pool Receivables, and in the associated Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that that, if after giving effect to any such Reinvestment, (x) the Purchased Interest would exceed 100%% or (y) the Aggregate Capital would exceed the Purchase Limit then in effect, then the Servicer shall not so Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to (x) reduce the Purchased Interest to 100%% and (y) cause the Aggregate Capital to not exceed the Purchase Limit, as applicable, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c);
(iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator), for the benefit of each Purchaser Group, the entire remainder of the Collections not set aside pursuant to clause (b)(i) of this Section 1.4; provided, furtherthat if amounts are so set aside and held in trust on any Termination Day, then such previously set-aside amounts shall, to the extent representing a return on Capital, be Reinvested in accordance with clause (ii) above on the next day to occur that is not a Termination Day (if any); and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (w) amounts required to be Reinvested in accordance with clause (ii) above plus (x) the amounts that are required to be set aside pursuant to clause (i) above, pursuant to the proviso to clause (ii) above and pursuant to clause (iii) above, plus (y) the Seller’s Servicing Fees accrued and unpaid through such day.
(c) On the fifth (5th) Business Day of each calendar month, each Purchaser Agent will notify the Servicer by electronic mail of the amount of Discount accrued with respect to each portion of Capital during the previous Settlement Period. On each Settlement Date, the Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit into the account specified by each Purchaser Agent Collections held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to Section 1.4(b)(i) or 1.4(f) plus the amount of Collections then held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to Sections 1.4(b)(ii) and 1.4(b)(iii); provided, however, that if the Facility Termination Date has been extended Information Package delivered by the Servicer indicates a Purchased Interest in excess of 100%, then the amount of Collections not Reinvested pursuant to Section 1.11 and any clause (b)(ii) shall be deposited into the account for each Purchaser (or its maintained by the applicable Purchaser Agent) has provided notice (an “Exiting Notice”) Agent as may be designated from time to the Administrator, time by such Purchaser Agent to the Seller and the Servicer on the date such Information Package is received and on each day thereafter to the extent the Purchased Interest exceeds 100%.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c) on each Settlement Date as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%: first, to the Servicer, the Servicing Fee, to the extent accrued and unpaid through the last day of the immediately preceding Settlement Period until such accrued fees are paid in full, to the extent not otherwise netted out from Collections by the Servicer; second, to the extent such amounts are then payable hereunder, to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Agent’s Purchaser Group), in payment in full of, all accrued Discount with respect to each portion of Capital maintained by such Purchasers (it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each Purchaser’s Capital); third, ratably to the Purchaser Agents and the Administrator, all accrued fees (including program fees) owing to the Purchasers (it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each such Purchaser’s refusalCapital) and to the Administrator; fourth, if the Servicer has set aside amounts in respect of a reduction of the Aggregate Capital pursuant to Section 1.11clause (f) below, to extend each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Agent’s Purchaser Group), in payment in full of the related reduction in Aggregate Capital; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each such Purchaser’s Capital; and fifth, to the Seller for its own account.
(ii) if such distribution occurs on a Termination Day or on any day on which the Purchased Interest exceeds 100%: first, to the Servicer, the Servicing Fee, to the extent accrued and unpaid through the last day of the immediately preceding Settlement Period until such accrued fees are paid in full, to the extent not otherwise netted out from Collections by the Servicer; second, to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Agent’s Purchaser Group), in payment in full of, all accrued Discount with respect to each portion of Capital maintained by such Purchasers (it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each Purchaser’s Capital); third, ratably to the Purchaser Agents and the Administrator, such accrued fees owing to the Purchasers (it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each Purchaser’s Capital) and to the Administrator; fourth, to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Agent’s Purchaser Group), in payment in full of each Purchaser’s Capital (or if such day is not a Termination Day but is a day on which the Purchased Interest exceeds 100%, the amount necessary to reduce the Purchased Interest to 100%) it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its related Committed Purchaser Group ratably in accordance with each Purchaser’s) Commitment ’s Capital; fifth, if the Aggregate Capital and accrued Aggregate Discount and fees with respect thereto have been reduced to zero (or the Aggregate Capital has been reduced to the extent necessary to cause the Purchased Interest not to exceed 100%), and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Purchasers, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other Aggregate Unpaids owed thereto by the Seller hereunder (other than contingent indemnification obligations); and sixth, to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or canceled as a result of (x) without duplication, any revision, cancellation, allowance, rebate, dilution, discount, or other adjustment (including, without limitation, an extension or adjustment made pursuant to the applicable Credit and Collection Guidelines) made by the Seller, the Servicer or any Originator, including in connection with the cancellation and reissuance of any Pool Receivable, or (y) any set-off or dispute between the Seller or any Originator and an Obligor (any such reduction or cancellation, a “Exiting PurchaserDilution”), in any such case, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction, adjustment, cancellation or dispute (which, in the case of a cancellation and reissuance of any Pool Receivable, shall be an amount equal to the full Outstanding Balance of the cancelled Pool Receivable) then and shall, subject to Section 1.4(e)(v), (x) if such Collections shall day is not be Reinvested a Termination Day, hold any and shall instead be held all such amounts in trust for the benefit of each Purchaser Group and, on the following Settlement Date, apply such Purchaser and applied amounts in accordance with clause this Section 1.4 or (y) if such day is a Termination Day, within two (2) Business Days of such reduction or adjustment, pay from its own funds any and all such amounts in respect thereof to a Collection Account or the Concentration Account for the benefit of each Purchaser Group and for application pursuant to this Section 1.4;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III is not true with respect to any Pool Receivable a Collection of the full Outstanding Balance of such Pool Receivable, the Seller shall, subject to Section 1.4(e)(v), (1) if such day is not a Termination Day, hold any and all such amounts in trust for the benefit of each Purchaser Group and, on the following Settlement Date, apply such amounts in accordance with this Section 1.4 or (2) if such day is a Termination Day, within two (2) Business Days, pay any and all such amounts from its own funds in respect thereof to a Collection Account or the Concentration Account for the benefit of each Purchaser Group and for application pursuant to this Section 1.4 (Collections deemed to have been received pursuant to Sections 1.4(e)(i) or (ii) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) belowexcept as provided in clause (i) or (ii), or as otherwise required by applicable Law, all Collections received from an Obligor of any Pool Receivable shall be applied to the Pool Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables;
(iv) if and to the extent the Administrator or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or such Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator or such Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof;
(v) if at any time before the Facility Termination Date the Seller is deemed to have received any Deemed Collection under Sections 1.4(e)(i) or (ii), so long as no Termination Day then exists, the Seller may satisfy its obligation to deliver the amount of such Deemed Collections to a Collection Account or the Concentration Account by instead recalculating (or being deemed to have recalculated) the Purchased Interest by decreasing the Net Receivables Pool Balance by the amount of such Deemed Collections, so long as such adjustment does not cause the Purchased Interest to exceed 100%; and
(vi) if at any time the Seller satisfies in full its obligations hereunder with respect to Deemed Collections (whether by payment to a Collection Account or the Concentration Account and/or by reducing the Net Receivables Pool Balance), the Administrator, on behalf of the Purchasers, shall re-convey to the Seller the Pool Receivable(s) to which such Deemed Collection relates, without recourse and without any representation or warranty except that such Pool Receivable is free and clear of liens, security interests, charges and encumbrances created by the Administrator or any such Purchaser, and thereafter the Seller shall not sell any interest in such Receivable to the Administrator on behalf of the Purchasers.
(f) At any time, the Seller may elect to cause a reduction of Capital in accordance with this clause (f). The Seller may do so as follows:
(i) the Seller shall deliver to the Administrator, each Purchaser Agent and the Servicer written notice in substantially the form of Annex C (the “Paydown Notice”) at least two Business Days’ prior to the date of such reduction for any reduction of Aggregate Capital, which notice shall include the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be Reinvested until the amount thereof not so Reinvested shall equal the desired amount of the reduction of Aggregate Capital; and
(iii) the Servicer shall hold (or cause the Seller to set aside and hold) such Collections in trust for each Purchaser, for payment to each Purchaser Agent for the benefit of such Purchaser on the next Settlement Date, and the Aggregate Capital shall be deemed reduced in the amount to be paid to a Purchaser Agent only when in fact finally so paid; provided, that (x) the amount of any such reduction (if not a reduction to zero) shall be not less than $1,000,000 and shall be an integral multiple of $100,000, and the entire Aggregate Capital after giving effect to such reduction shall be not less than $10,000,000 (unless the entire Aggregate Capital shall have been reduced to zero); and (y) the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Settlement Period.
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Vistra Corp.), Receivables Purchase Agreement (Vistra Energy Corp.)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Administrator (for the benefit of each Purchaser Groupthe Purchasers), out of the Purchasers’ Share of such Collections, (x) first, an amount equal to the Aggregate Purchasers’ aggregate amount of Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group the Fee Letter Letters accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group’s Ratable Share of the Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of the Purchasers’ Share of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s aggregate Capital, be automatically deemed to be reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (ratably, according to each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)Purchaser’s Capital; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestreinvest, but shall set aside and hold in trust for Administrator (for the benefit of the Purchasers Purchasers) (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if in the Facility Termination Date has been extended pursuant to Section 1.11 and case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) ), then such Exiting Purchaser’s ratable share of such Collections based on its Capital shall not be Reinvested reinvested (after the termination of its Commitment) and shall instead be held in trust for Administrator (for the benefit of such Purchaser Exiting Purchaser) and applied in accordance with clause (iii) below,
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust for the Administrator (for the benefit of the Purchasers) (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Purchasers’ Share of the Collections (or in the case of an Exiting Purchaser an amount equal to such Purchaser’s ratable share of such Collections based on its Capital; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Capital shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the appropriate Person or Persons, such previously set-aside amounts shall, to the extent representing a return on aggregate Capital (other than the Capital of any Exiting Purchaser) and ratably in accordance with each Purchaser’s (other than an Exiting Purchaser) Capital, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day plus (aa) all other amounts then due and payable by the Seller under this Agreement to any Purchasers, the Administrator, and any other Indemnified Party or Affected Person.
(c) The Servicer shall deposit into each Purchaser Agent’s account (as designated by such Purchaser Agent to Servicer on or prior to the date hereof, or such other account designated by such Purchaser to Servicer from time to time), on each Settlement Date, Collections held for the applicable Purchaser, pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Administrator (for the benefit of such Purchaser) pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if CONSOL Energy or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified CONSOL Energy (or such Affiliate) that such right is revoked, CONSOL Energy (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Purchasers’ Share of the Servicing Fee. On the last day of each Settlement Period, each Purchaser or (its Purchaser Agent) will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited pursuant to clause (c), each Purchaser Agent shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to such Purchaser Agent ratably according to the Discount accrued during the applicable Settlement Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to the Discount with respect to each Portion of Capital maintained by such Purchaser, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of the Purchaser’s Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to such Purchaser Agent ratably according to Discount (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, second to such Purchaser Agent ratably according to the aggregate of the Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Capital (or, if such day is not a Termination Day, such Purchaser’s ratable share of the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of the aggregate of such Purchaser Group’s Ratable Share of all accrued Servicing Fees, fourth, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants, the amount necessary to cash collateralized the LC Participation Amount until the amount of cash collateral held in such LC Collateral Account equals the aggregate outstanding amount of the LC Participation Amount and if the Capital and accrued Discount with respect to the Purchasers in its Purchaser Group’s percentage interest of Capital have been reduced to zero or if such day is not a Termination Day, the Purchased Interest is reduced to 100%, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Administrator for distribution to each Purchaser, each Purchaser Agent, the Administrator and any other Indemnified Party or Affected Person any other amounts then owed thereto by the Seller hereunder, ratably in accordance with the amounts due thereto. After the Capital, Discount, fees payable pursuant to the Fee Letters and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, and (on and after a Termination Day) after an amount equal to 100% of the LC Participation Amount has been deposited in the LC Collateral Account, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or such Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator or such Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof
(f) If at any time the Seller shall wish to cause the reduction of Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the Seller shall give the Administrator, the Purchaser Agents and the Servicer written notice in the form of Annex C (the “Paydown Notice”) at least two Business Days prior to the date of such reduction;
(ii) On the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the Purchasers ratably (based on their respective Portions of Capital funded thereby), for payment to the Purchaser Agents on the next Settlement Date immediately following the current Settlement Period or such other date approved by the Purchaser Agents, and Capital shall be deemed reduced in the amount to be paid to the Purchaser Agents only when in fact finally so paid.
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Consol Energy Inc), Receivables Purchase Agreement (Consol Energy Inc)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers Secured Parties ((or, upon the occurrence and shallduring the continuance of an ▇▇▇▇ Ratings Event, at if so requested by the request Administrative Agent, promptly upon (but in no event later than one (1) Business Day after) receipt of the Administratorsuch request, segregate in a separate account approved designated by the AdministratorAdministrative 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 Lock-Box or Collection Account; provided, however, that so long as the Administrative Agent has not taken exclusive dominion and control of the Collection Accounts and 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 such Collections received on Seller Collateral the amount (if any) necessary to (x) pay the purchase price for Receivables purchased by the Seller on such date in accordance with the terms of the applicable Purchase and Sale Agreement or (y) make any Restricted Payment permitted by Section 7.01(r) 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 Settlement Date, the Servicer (or, following its assumption of control of the Collection Accounts, the Administrative Agent) shall distribute such Collections thatremaining after the Releases, together with the other Collections set aside if any, pursuant to this paragraphclauses (x) and (y) above, shall in the following order of priority:
(i) first, to the Servicer for the payment of all accrued Servicing Fees payable for the immediately preceding Yield Period (plus, if applicable, the amount of Servicing Fees payable for any prior Yield Period to the extent such amount has not been distributed to the Servicer);
(ii) second, to each Purchaser and other Purchaser Party (ratably, based on 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 13.09 in respect of such payments, plus, if applicable, such amounts payable for any prior Yield Period to the extent such amount has not been distributed to such Purchaser or Purchaser 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 Capital Coverage Amount Deficit exists on such date, 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 Purchased Interest Capital Coverage Amount Deficit to 100%zero ($0);
(B) on and after the occurrence of the Termination Date, 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 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 Purchasers at such time (ratably, based on the aggregate outstanding Capital of each Purchaser at such time);
(iv) fourth, to the Secured Parties, the Affected Persons 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, the Affected Persons 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 Notes; and
(vi) sixth, the balance, if any, to be paid to the Seller for its own account. Amounts payable pursuant to each of clauses (i) through (iv) 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. The Seller’s right to receive payments (if any) from time to time pursuant to clause (vi) 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) All payments or distributions to be made by the Servicer, the Seller and any other Person to the Purchasers (or their respective related Affected Persons and the Seller 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 Purchasers, Affected Persons and the Seller 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 Purchasers, Affected Persons and the Seller 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 any Secured Party, any Affected Person or any 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 Insolvency Proceeding) any amount received on its behalf hereunder, such amount shall be deposited ratably deemed not to each Purchaser Agenthave been so received but rather to have been retained by the Seller and, accordingly, such Secured Party, such Affected Person 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 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 account 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 Collection Account or as otherwise directed by the Administrative Agent at such time, for the benefit of its related Purchasers the Purchaser Parties for application pursuant to Section 3.01(a), an amount equal to (x) if such reduction occurs prior to the Termination Date and no Event of Default or Unmatured Event of Default has occurred and is continuing, the lesser of (I) the sum of all deemed Collections with respect to be applied in 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 their respective CapitalDefault or Unmatured Event of Default has occurred and is continuing, the sum of all deemed Collections with respect to such reduction (Collections deemed to have been received pursuant to this Section 3.01(d)(i) on the next Weekly Settlement Date in accordance with Section 1.4(c); are hereinafter sometimes referred to as “Dilution”) provided, furtherhowever, that if the Facility Termination Date a Receivable’s Purchase Price has been extended reduced by the full Outstanding Balance thereof pursuant to Section 1.11 3.3(a) of the Purchase and any Purchaser (or its Purchaser Agent) Sale Agreement and such reduction has provided notice (an “Exiting Notice”) been accounted to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause Section 3.3(c) of the Purchase and Sale Agreement, then the Seller shall thereafter deliver to the applicable Originator any payments thereafter received by the Seller on account of such Receivable’s Outstanding Balance in accordance with the Seller’s obligations under the proviso to Section 3.3(a) of the Purchase and Sale Agreement;
(ii) if (A) any representation or warranty in Section 6.01 is not true with respect to any Pool Receivable at the time made or (B) any Receivable included in any Pool 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 day a Collection of such Pool Receivable’s Outstanding Balance in full, and the Seller, to the extent that the applicable Originator has made a related payment in cash to the Seller pursuant to Section 3.3(c) of the applicable Purchase and Sale Agreement, shall within two (2) Business Days pay to a Collection 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 breach occurs prior to the Termination Date and no Event of Default or Unmatured Event of Default has occurred and is continuing, the lesser 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 or Unmatured 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”);
(iii) below;except as provided in clauses (i) or (ii) above or otherwise required by Applicable Law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied in accordance with the Credit and Collection Policy, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent any Secured Party, any Affected Person or any Seller Indemnified Party shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
Appears in 1 contract
Settlement Procedures. (a) The collection So long as the Administrative Agent has not taken dominion and control of the Pool Receivables shall be administered by Collection Accounts, the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request which amounts held in trust may be commingled with other funds of the AdministratorServicer and its Affiliates (a) in such Collection Accounts as permitted herein or (b) in a Permitted Linked Account) for the benefit of the Secured Parties (or, if so requested by the Administrative Agent after the occurrence and during the continuation of an Event of Default, segregate in a separate account reasonably approved by the Administrator) 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 benefit priority of each Purchaser Group, out of such Collections, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees payments set forth below, all Collections on Pool Receivables that are actually received by the Servicer or the SPE or received in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)any Lock-Box or Collection Account; provided, however, that if so long as each of the Purchased Interest would exceed 100%conditions precedent set forth in Section 5.03 are satisfied on such date, then the Servicer shall not Reinvest, but shall set aside may (A) release to the SPE from Collections received on SPE Collateral the amount (if any) necessary to pay the purchase price for Receivables purchased by the SPE on such date in accordance with the terms of the Transfer Agreement and hold (B) release to the SPE all or a portion of Collections received on Sold Assets in trust exchange for the SPE designating an equivalent amount (based on aggregate Outstanding Balances) of Unsold Receivables as new Sold Receivables on SPE’s books and records 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 Purchasers Purchaser/Lenders) pursuant to Section 2.01(b) upon such release (each such release of Collections described in clauses (A) and shall(B) above, at a “Release”). On each Settlement Date, the request Servicer (so long as the Administrative Agent has not taken exclusive control of the AdministratorCollection Accounts) shall distribute such Collections (or, segregate following its assumption of exclusive control of the Collection Accounts following the occurrence and during the continuation of an Event of Default, the Administrative Agent shall distribute all Collections then on deposit in the Collection Accounts or the Cash Dominion Administration Accounts, as applicable) in the following order of priority:
(i) first, to the Servicer for the payment of all unpaid Servicing Fees accrued up to (but not including) such Settlement Date;
(ii) second, to the Administrative Agent for further distribution to each Purchaser/Lender and other Purchaser/Lender Party (ratably, based on the amount then due and owing), (w) all unpaid Yield accrued on such Purchaser/▇▇▇▇▇▇’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 or indemnified amounts payable under 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 Termination Date, to the extent that a separate account approved by Capital Coverage Amount Deficit exists on such date, to the AdministratorAdministrative Agent for further distribution 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 Collections thattime, together with the other Collections set aside pursuant in an aggregate amount equal to this paragraph, shall equal the amount necessary to reduce the Purchased Interest Capital Coverage Amount Deficit to 100%zero ($0);
(B) on and after the occurrence of the Termination Date, which amount shall be deposited ratably to eachthe Administrative Agent for further distribution to the Purchaser/LenderLenders (ratably, based on the aggregate outstanding Capital of each Purchaser Agent’s account (Purchaser/Lender at such time) for the benefit payment in full of its related Purchasers the aggregate outstanding Capital of such Purchaser/Lender at such time; or
(C) prior to the occurrence of the Termination Date, at the election of the SPE and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c2.03(d), to the payment of all or any portion of the outstanding Capital ofAdministrative Agent for further distribution the Purchaser/Lenders at such time (ratably, based on the aggregate outstanding Capital of each Purchaser/Lender at such time) for the payment of all or any portion of the outstanding Capital of the Purchaser/Lenders at such time;
(iv) fourth, to the Administrative Agent for further distribution to the Secured Parties (ratably, based on the amount due and owing at such time), for the payment of all other SPE Obligations then due and owing by the SPE to the Secured Parties; providedand
(v) fifth, furtherthe balance, if any, to be paid to the SPE 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 fourth 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 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’ interests in the 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 nor any Purchaser/Lender 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.
(b) All payments or distributions to be made by the Servicer, the SPE and any other Person to any Purchaser/Lender Party (or its respective related Secured Parties), shall be paid or distributed to the Administrative Agent for further distribution to each applicable Purchaser/Lender at such account as such Purchaser/Lender Party.has designated in writing to the Administrative Agent from time to time. Each Purchaser/Lender, upon its receipt of any such payments or distributions, shall distribute such amounts to such Purchaser’s applicable related Secured Parties; provided that if the Facility Termination Date has 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/Lender, and each Purchaser/Lender shall pay such amounts to such Purchaser/Lender’s applicable related Secured Parties in accordance with the priority of payments set forth above, and with respect to any such category above for which there are insufficient funds to pay all amounts owing on such date, ratably (based on the amounts in such categories owing to each such related Person) among all such related Persons entitled to payment thereof. 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. Each payment by the Servicer or the SPE to the Administrative Agent for the account of any Purchaser/Lender or other Secured Party hereunder shall be deemed to constitute payment by the Servicer or the SPE directly to such Purchaser/Lender or other Secured Party. Each Purchaser/Lender shall provide timely and accurate responses to each of the Administrative Agent’s requests for information necessary for the Administrative Agent to make the allocations, payments and distributions to the Purchaser/Lenders and other Secured Parties hereunder.
(c) 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 extended 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.
(d) 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 or (C) any setoff, counterclaim or dispute between or among the SPE or any Affiliate of the SPE, an Originator or any Affiliate of an Originator, or 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 “Dilution”);
(ii) if on any day any of the representations or warranties in Section 6.01 is not true in all material respects with respect to any Pool Receivable, 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 relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables;
(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 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 SPE and, accordingly, such Person shall have a claim against the SPE for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof; and
(v) to the extent the SPE receives or is deemed to receive any Deemed Collection pursuant to Section 1.11 3.01(d)(i) and any Purchaser (3.01(d)(ii) above, if a Capital Coverage Amount Deficit shall exist at the time the SPE is deemed to have received such Deemed Collection, or its Purchaser Agent) has provided notice (an “Exiting Notice”) after giving effect to the Administratorevent giving rise to such Deemed Collection, the Seller 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 of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust is responsible for the benefit of event giving rise to such Purchaser and applied in accordance with clause (iii) below;Deemed Collection).
Appears in 1 contract
Sources: Receivables Purchase and Financing Agreement (Phillips 66)
Settlement Procedures. On each Remittance Date and each --------------------- day thereafter until the Aggregate Unpaids have been paid in full, the Agent shall apply (ai) The collection amounts on deposit in the Collection Account pursuant to Section 2.6 or 7.3(h) and (ii) the Percentage Factor of all remaining amounts on deposit in the Collection Account in the following order of priority: first, in ----- payment of the Pool Receivables shall be administered accrued Discount for each Tranche Period, second, in payment of ------ the Commitment Fee, third, in payment of any additional Discount due pursuant to ----- Section 7.4, fourth, in payment of the aggregate of all other amounts then owed ------ (whether due or accrued) hereby by the Servicer Transferor to the Banks or the Agent (other than the Total Outstanding Investment), and fifth, in reduction of the ----- Total Outstanding Investment. In the event that on any Remittance Date and any day thereafter, the Aggregate Unpaids have not been paid in full after giving effect to the preceding sentence, the Agent shall apply any other amounts on deposit in the Collection Account to the payment in full of the Aggregate Unpaids in accordance with this Agreementthe foregoing priority. The Seller shall provide to Following the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day date on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
Total Outstanding Investment has been reduced to zero, all accrued Discount and applicable fees have been paid in full, all other Aggregate Unpaids have been paid in full and this Agreement shall have terminated pursuant to Section 11.1, (i) set aside and hold in trust (and shallthe Agent shall recompute the Percentage Factor, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratablyAgent, on behalf of each Purchaser Groupthe Banks, the remainder of such Collections. Such remainder shall, shall be considered to have reconveyed to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and applicable Transferor any interest in the Related SecurityReceivables (including the Transferred Interest), (iii) the Agent shall release to the Transferor any remaining Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have held in the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside Collection Account pursuant to this paragraphSection 2.4 and (iv) the Agent, on behalf of the Banks, shall equal execute and deliver to the amount Transferor, such documents or instruments as are necessary to reduce terminate the Purchased Interest to 100%, which amount Agent's interest in the Receivables. Any such documents shall be deposited ratably to each Purchaser Agent’s account (for prepared by or on behalf of the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;Transferor.
Appears in 1 contract
Sources: Transfer and Administration Agreement (Mattel Inc /De/)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased InterestAssets Coverage Percentage.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:, including pursuant to Section 1.6(g):
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Groupthe Purchasers, out of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter Fees accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f1.6(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, Seller the remainder of such Collections. Such remainder shall, (x) to the extent representing a return on of the Aggregate Capital, ratably, be automatically reinvested (ratably among the Purchasers according to each Purchaser’s Capital, be automatically reinvested ) in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto and (each such reinvestmenty) to the extent not representing a return of the Aggregate Capital, a “Reinvestment,” and “Reinvest” shall have be paid to the correlative meaning)Seller in respect of the Deferred Purchase Price for the Purchased Assets; provided, however, that if the Purchased Interest Assets Coverage Percentage would exceed 100%, then the Servicer shall not Reinvestreinvest or remit to the Seller, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest Assets Coverage Percentage to 100%% (determined as if such Collections set aside had been applied to reduce the Aggregate Capital or Aggregate Adjusted LC Participation Amount, as applicable, at such time), which amount shall either (A) be deposited ratably to each Purchaser Agent’s account the Administration Account (for the benefit of its related Purchasers and to the Purchasers) or (B) be applied deposited in reduction of their respective Capital) an LC Collateral Account, in each case, as applicable, on the next Weekly Settlement Date in accordance with Section 1.4(c1.6(c); provided, further, that if (x) in the Facility Termination Date has been extended pursuant to Section 1.11 and case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (or a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.111.12, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then in either case (x) or (y), above, such Purchaser’s ratable share (determined according to outstanding Capital) of such remaining Collections shall not be Reinvested reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) belowbelow (it being understood and agreed that the foregoing clause (x) shall not limit any obligation of a Committed Purchase in a Declining Conduit Purchaser’s Purchaser Group to make purchases and reinvestments hereunder),
(iii) if such day is a Termination Day (or any day following the provision of a Declining Notice or an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of the Purchasers the entire remainder of such Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser an amount equal to such Purchaser’s ratable share (determined according to outstanding Capital) of such Collections; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice, as the case may be, until the date such Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Declining Conduit Purchaser’s or Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated)); provided, further, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of a Declining Notice or an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and the Majority Purchaser Agents (or in the case of a Declining Notice or an Exiting Notice, such Declining Notice or Exiting Notice, as the case may be, has been revoked by the related Declining Conduit Purchaser or Exiting Purchaser, respectively and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return of Aggregate Capital (or the Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably (determined according to outstanding Capital), be reinvested and/or paid to the Seller in respect of the Deferred Purchase Price for the Purchased Assets in accordance with clause (ii) above on the day of such subsequent satisfaction or waiver of conditions or revocation of Declining Notice or Exiting Notice, as the case may be, and
(iv) subject to Section 1.6(f), pay to the Seller (on behalf of the Administrator and the Purchasers) for the Seller’s own account and in payment of the Deferred Purchase Price for the Purchased Assets any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) above or the last proviso to clause (iii) above, plus (y) the amounts that are required to be set aside pursuant to clause (i) above, the provisos to clause (ii) and clause (iii) above, plus (z) all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.6(d), deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or, solely with respect to Collections held for the Purchasers pursuant to Section 1.6(f)(iii), such other date approved by the Administrator with at least five (5) Business Days prior written notice to the Administrator of such payment), Collections held for the Purchasers pursuant to Section 1.6(b)(i), (ii) or (iii) or 1.6(f); provided, that if Peabody or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified Peabody (or such Affiliate) that the right to retain the portion of Collections set aside pursuant to Section 1.6(b)(i) that represents the Servicing Fee is revoked, Peabody (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.6(b)(i) that represents the Servicing Fee in payment in full of the accrued Servicing Fees so set aside. On the last day of each Settlement Period, each Purchaser (or its Purchaser Agent on its behalf) will notify the Servicer by electronic mail of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c) above, the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day, on a day that the Purchased Assets Coverage Percentage does not exceed 100% and on a day that the sum of the Aggregate Capital plus the Aggregate LC Participation Amount does not exceed the Purchase Limit, first to the Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) in payment in full of all accrued Discount and Fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) above and has not retained such amounts pursuant to clause (c) above, to the Servicer (payable in arrears on each Settlement Date) in payment in full of the accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day, on a day when the Purchased Assets Coverage Percentage exceeds 100% or on a day when the sum of the Aggregate Capital plus the Aggregate LC Participation Amount exceeds the Purchase Limit, first to the Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) in payment in full of all accrued Discount and Fees, second to the Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Assets Coverage Percentage to 100% or the sum of the Aggregate Capital plus the Aggregate LC Participation Amount to the Purchase Limit, as applicable) (determined as if such Collections had been applied to reduce the aggregate outstanding Capital), third, to the LC Collateral Accounts for the benefit of the LC Bank and the LC Participants, (x) the amount (if any) necessary to cause the amount of cash collateral held in the LC Collateral Accounts (other than amounts representing LC Fee Expectation) to equal the aggregate outstanding amount of the Aggregate LC Participation Amount (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Assets Coverage Percentage to 100% or the sum of the Aggregate Capital plus the Aggregate LC Participation Amount to the Purchase Limit, as applicable) (determined as if such Collections had been applied to reduce the aggregate outstanding amount of the Aggregate LC Participation Amount) and (y) if such day is a Termination Day or a Termination Event is continuing, an amount equal to the LC Fee Expectation at such time (or such portion thereof not currently on deposit in the LC Collateral Accounts), fourth, to the Servicer in payment in full of all accrued Servicing Fees, fifth, if all amounts owing under clauses first through fourth above have been paid in full, to the Purchaser Agents (for the benefit of such Purchaser Agent and the Purchasers in their respective Purchaser Groups), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder, and sixth, after the occurrence of the Final Payout Date, all additional Collections with respect to the Purchased Assets shall be paid to the Seller for its own account in payment of the Deferred Purchase Price for such Purchased Assets.
(e) For the purposes of this Section 1.6:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and, if such reduction or adjustment (x) causes the Purchased Assets Coverage Percentage to exceed 100% or (y) occurs after the occurrence of the Facility Termination Date, the Seller shall pay an amount equal to such reduction or adjustment to a Lock-Box Account for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.6 within one Business Day of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section l(g) or (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full and, if such breach (x) causes the Purchased Assets Coverage Percentage to exceed 100% (determined on a pro forma basis after giving effect to such breach and subtraction of the Outstanding Balance of such Pool Receivables related to such breach from the Net Receivables Pool Balance) or (y) occurs after the occurrence of the Facility Termination Date, the Seller shall pay any and all such amounts in respect thereof to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.6 within one Business Day and, upon receipt of cash payments in full of the amounts specified in this clause (ii) in a Lock-Box Account, all right, title and interest of the Administrator, any Purchaser Agent or any Purchaser to the relevant Pool Receivable and Related Security shall pass to the Seller (or, to the extent such interest of the Administrator, any Purchaser Agent or any Purchaser is a beneficial interest in the relevant Pool Receivable and Related Security, shall be extinguished); provided, that any such reconveyance or release shall be without representation or warranty, but free and clear of all liens, security interests, charges, and encumbrances created by the Administrator, any Purchaser Agent or any Purchaser;
(iii) except as provided in clause (i) or (ii) above, or as otherwise required by Applicable Law or the relevant Contract, all Collections received from an Obligor (or Eligible Supporting Letter of Credit Provider or Credit Insurer, as applicable) of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator, such Purchaser Agent or such Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator, such Purchaser Agent or such Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex C (the “Paydown Notice”) at least two Business Days prior to the date of such reduction for any reduction of Aggregate Capital and such notice shall include the amount of such reduction and the proposed date on which such reduction shall commence;
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of the Administrator (for the benefit of each Purchaser), for payment to the Administrator by depo
Appears in 1 contract
Sources: Receivables Purchase Agreement (Peabody Energy Corp)
Settlement Procedures. (a) The collection So long as the Administrative Agent has not taken dominion and control of the Pool Receivables shall be administered by the Collection Accounts, each Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request of the AdministratorAdministrative Agent, segregate in a separate account approved designated by the AdministratorAdministrative 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 each 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, each Servicer may release to the Borrower from such Collections the amount (if any) necessary to (x) pay the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the applicable Transfer Agreement or (y) amounts owing by the Borrower to any Originator under any Subordinated Loan (each such release, a “Release”). On each Settlement Date, each Servicer (or, following its assumption of control of the Collection Accounts, the Administrative Agent) shall, or shall cause the Borrower to, distribute such Collections in the following order of priority:
(i) first, (A) first, to the Administrative Agent, the amount of any Administrative Agent Transition Fees then due and owing and any accrued and unpaid expenses and indemnity payments due and payable and validly incurred in accordance with Section 11.01, Section 11.02 and Section 11.03 (B) second, to each 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 such amount has not been distributed to each Servicer);
(ii) second, (A) first, on and after the Termination Date, to the Administrative Agent for distribution to each Class A Lender and the Administrative Agent (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and indemnity payments under Section 4.02 due to such Class A Lender and the Administrative Agent for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 4.03 and 11.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and indemnity payments (including any additional amounts or indemnified amounts payable under Sections 4.03 and 11.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Class A Lender or the Administrative Agent and (B) second, at any time, to the Administrative Agent for distribution to each Lender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and indemnity payments under Section 4.02 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 11.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and indemnity payments (including any additional amounts or indemnified amounts payable under Sections 4.03 and 11.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (A), (B) or, (C) or (D) below, as applicable:
(A) prior to the occurrence of the Termination Dateat any time that any Borrower Obligations with respect to the Class A Loans remain outstanding, to the extent that a Class A Borrowing Base Deficit exists on such date, to the Administrative Agent for distribution to the Class A Lenders (ratably, based on the aggregate outstanding Principal of each Lender at such time by Percentages) for the payment of a portion of the outstanding Aggregate PrincipalClass A Loan Amount at such Collections thattime, together with the other Collections set aside pursuant in an aggregate amount equal to this paragraph, shall equal the amount necessary to reduce the Purchased Interest Class A Borrowing Base Deficit to 100%zero ($0);
(B) on and after the occurrence of the Termination Date, which amount shall be deposited ratably to each Purchaser Agent’s account Lender (ratably, based on the aggregate outstanding Principal of each Lender at such time) for the benefit payment in full of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer aggregate outstanding Principal of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then Lender at such Collections shall not be Reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;time; or
Appears in 1 contract
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter Fees accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)Rights; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestremit such remainder to the Seller or reinvest it, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraphclause (ii), shall equal the amount necessary to reduce the Purchased Interest to 100%% (determined as if such Collections set aside had been applied to reduce the Aggregate Capital at such time), which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective CapitalPurchasers) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if in the Facility Termination Date has been extended pursuant to Section 1.11 and case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.111.22, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then ), then, such Collections shall not be Reinvested reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below,
(iii) if such day is a Termination Day (or a day on which the Commitment of an Exiting Purchaser terminates), set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of such Collections (or, in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Capital; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Capital shall be deemed to remain constant from the day on which the Commitment of such Exiting Purchaser terminates, until the date such Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated); provided, further, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day on which the Commitment of such Exiting Purchaser terminates) and, thereafter, the conditions set forth in Section 3 of Exhibit II are satisfied or waived by the Administrator and the Majority Purchaser Agents (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Capital (or the Capital of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Capital, be reinvested in accordance with clause (ii) above on the day of such subsequent satisfaction or waiver of conditions or revocation of Exiting Notice, as the case may be, and
(iv) subject to Section 1.4(f), release to the Seller for its own account any Collections in excess of: (x) the amounts that are required to be set aside or reinvested pursuant to clauses (i), (ii) and (iii) above plus (y) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the LC Bank, the Administrator and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d) below, deposit into each applicable Purchaser Agent’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date (for any Portion of Capital), Collections held for each Purchaser pursuant to Sections 1.4(b)(i), (ii) and (iii) and Section 1.4(f); provided, that if ▇▇▇▇▇ or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified ▇▇▇▇▇ (or such Affiliate) that such right is revoked, ▇▇▇▇▇ (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchasers’ Share of the Servicing Fee. On or prior to the last day of each Yield Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Yield Period or portion thereof.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day, that is not a day on which the Commitment of an Exiting Purchaser terminates and on which the Purchased Interest does not exceed 100%, first to each Purchaser Agent ratably (based on the Discount and Fees accrued during such Yield Period) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and Fees with respect to each Portion of Capital maintained by the Purchasers within such Purchaser Agent’s Purchaser Group; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and Fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to Section 1.4(b)(i) and has not retained such amounts pursuant to Section 1.4(c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day, on a day on which the Commitment of an Exiting Purchaser terminates or on a day when the Purchased Interest exceeds 100%, first if ▇▇▇▇▇ or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second to each Purchaser Agent ratably (based on the Discount and Fees accrued during such Yield Period) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and Fees with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third to each Purchaser Agent ratably (based on the aggregate of the Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of (x) if such day is a Termination Day, each Purchaser’s Capital, (y) if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100% or (z) if such day is a day on which the Commitment of an Exiting Purchaser terminates, an amount equal to the Exiting Purchaser’s ratable share of the Collections set aside pursuant to Section 1.4(b)(iii) based on its Capital (determined as if such Collections had been applied to reduce the Aggregate Capital); it being understood that each Purchaser Agent shall distribute the amounts described in the second and third clauses of this clause (ii) to the Purchasers within its Purchaser Group ratably (based on Discount and Fees and Capital, respectively), fourth, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants, (x) the amount necessary to cash collateralize the LC Participation Amount until the amount of cash collateral held in such LC Collateral Account equals 100% of the LC Participation Amount and (y) if such day is a Termination Day of the type described in clause (b) of the definition thereof or if a Termination Event is continuing, an amount equal to the LC Fee Expectation at such time (or such portion thereof not currently on deposit in the LC Collateral Account), fifth, if the Aggregate Capital and accrued Aggregate Discount with respect to each Portion of Capital for all Purchaser Groups have been reduced to zero, the Fees have been paid in full and the Purchasers’ Share of all accrued Servicing Fees payable to the Servicer (if other than ▇▇▇▇▇ or an Affiliate thereof) have been paid in full, to each Purchaser Group ratably (based on the amounts payable to each) (for the benefit of the Purchasers within such Purchaser Group), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder and sixth, to the Servicer’s own account (if the Servicer is ▇▇▇▇▇ or an Affiliate thereof) in payment in full of the aggregate of the Purchaser’s Share of all accrued Servicing Fees. After the Capital (on and after a day when the Purchased Interest exceeds 100% or any day on which the Commitment of an Exiting Purchaser terminates), Aggregate Discount, Fees and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder have been paid in full, and (on and after a Termination Day) after Aggregate Capital and an amount equal to 100% of the LC Participation Amount and the LC Fee Expectation has been deposited in the LC Collateral Account, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and shall, subject to Section 1.4(e)(v), immediately pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4(b);
(ii) if on any day any of the representations or warranties in Sections 1(j) or 3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of the full Outstanding Balance of such Pool Receivable and shall, subject to Section 1.4(e)(v), immediately pay any and all such amounts in respect thereof to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4(b) (Collections deemed to have been received pursuant to Sections 1.4(e)(i) or (ii) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) except as provided in Sections 1.4(e)(i) or (ii) or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables;
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof; and
(v) if at any time before the Facility Termination Date the Seller is deemed to have received any Deemed Collection under Sections 1.4(e)(i) and (ii), so long as no Termination Day then exists, the Seller may satisfy its obligation to deliver the amount of such Deemed Collections to a Lock-Box Account by instead recalculating (or being deemed to have recalculated) the Purchased Interest by decreasing the Net Receivables Pool Balance by the amount of such Deemed Collections, so long as such adjustment does not cause the Purchased Interest to exceed 100%.
(f) If at any time the Seller wishes to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex E (each, a “Paydown Notice”) (A) by no later than 12:00 p.m. on the date of such reduction for any reduction of the Aggregate Capital less than or equal to $25,000,000 (or such greater amount as agreed to by the Administrator and the Majority Purchaser Agents) and (B) at least five (5) Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $25,000,000, and each such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser, for payment to each such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) on the next Settlement Date (or such other date as agreed to by the Administrator) with respect to any Portions of Capital maintained by such Purchaser immediately following the related current Yield Period, and the Aggregate Capital (together with the Capital of any related Purchaser) shall be deemed reduced in the amount to be paid to such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) only when in fact finally so paid; provided, that:
(A) the amount of any such reduction shall not be less than $100,000 fo
Appears in 1 contract
Sources: Receivables Purchase Agreement (Kelly Services Inc)
Settlement Procedures. (a) The collection Collection of the Pool Receivables shall be administered by the Servicer Collection Agent in accordance with the terms of this Agreement. The Seller shall provide to the Servicer Collection Agent on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Liquidation Day or Provisional Liquidation Day and current computations of the Purchased each Receivable Interest.
(b) The Servicer Collection Agent shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicerit with respect to any Receivable Interest owned by a Purchaser:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Groupsuch Purchaser, out of the percentage of such CollectionsCollections represented by such Receivable Interest, (x) an amount equal to such Purchaser's Yield and Pro Rata Share of the Aggregate Discount Collection Agent Fee and fees payable pursuant to the Fee Letter, if any, accrued through such day for each Portion of Capital such Receivable Interest and not previously set aside; provided, (y) an amount equal that notwithstanding the preceding clause, unless the -------- Administrative Agent shall have given notice at the direction of the Required Purchasers to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through contrary, such day, and (z) amounts may be commingled with the Collection Agent's other funds prior to their payment to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not neither a Termination Liquidation Day nor a Provisional Liquidation Day nor an Optional Reduction Day nor a Mandatory Reduction Day, remit to the Seller, ratably, reinvest on behalf of each such Purchaser Group, (such reinvestment to be deemed a Purchase of a Receivable Interest by such Purchaser) the remainder of such percentage of Collections. Such , to the extent representing a return of Capital, by recomputation of such Receivable Interest pursuant to Section 2.03;
(iii) if such day is a Liquidation Day or a Provisional Liquidation Day, refrain from making reinvestments and set aside and hold in trust for such Purchaser the entire remainder of such percentage of Collections; provided, that amounts set aside and held in trust on any Provisional -------- Liquidation Day that is subsequently determined not to be a Liquidation Day thereupon shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s of Capital, be automatically reinvested in Pool Receivablesaccordance with the preceding subsection (ii);
(iv) if such day is an Optional Reduction Day, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit Purchaser the entire remainder of such percentage of Collections or, if the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion remainder of such Collections exceeds the remaining amount of the Optional Reduction Amount, the portion of the remainder of such Collections equal to such remaining amount of the Optional Reduction Amount; provided, that, together notwithstanding the preceding clause, unless the -------- Administrative Agent shall have given notice at the direction of the Required Purchasers to the contrary, such amounts may be commingled with the Collection Agent's other Collections funds prior to their payment to the Purchasers;
(v) if such day is a Mandatory Reduction Day, set aside and hold in trust for the Purchaser the entire remainder of such percentage of Collections, or if the remainder of such Collections exceeds the remaining amount of the Mandatory Reduction Amount for such day, the portion of the remainder of such Collections equal to such remaining amount of the Mandatory Reduction Amount; provided, that, notwithstanding the preceding -------- clause, unless the Administrative Agent shall have given notice at the direction of the Required Purchasers to the contrary, such amounts may be commingled with the Collection Agent's other funds prior to their payment to the Purchasers; and
(vi) release to the Seller for its own account any Collections in excess of such amounts allocated pursuant to this paragraphsubsections (i) through (v) above.
(c) The Collection Agent shall deposit into an account designated by each Purchaser, shall equal on each Settlement Date, unless the amount necessary to reduce Required Purchasers, in their sole discretion, require more frequent deposits, all amounts held by the Purchased Interest to 100%, which amount shall be deposited ratably to Collection Agent for each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c2.04(b), unless deposited earlier as provided in the next succeeding sentence; provided, further-------- however, that if Collections have been commingled with the Facility Termination Date has been extended Collection Agent's other ------- funds prior to their payment to the Purchasers as permitted by the terms of this Agreement, any deposits made pursuant to the preceding clause shall be made by the Collection Agent from and to the extent of the Collections with respect to a Receivable Interest owned by such Purchaser. If a Liquidation Day or a Provisional Liquidation Day has occurred and is continuing, all amounts held by the Collection Agent for each Purchaser in accordance with Section 1.11 2.04(b) shall be deposited on the first Business Day following receipt by the Collection Agent into an account designated by such Purchaser. The aggregate amount so deposited with respect to a Receivable Interest owned by a Purchaser shall not exceed the sum of such Purchaser's Capital of, and accrued Yield and Pro Rata Share of the Collection Agent Fee, if any, on such Receivable Interest plus the aggregate of any other amounts then owed by the Seller to such Purchaser hereunder. If the amounts so deposited are insufficient to pay in full all amounts due to such Purchaser hereunder, such amounts shall be applied in the following order of priority (whether or not such funds are sufficient to pay in full all such amounts): first to the Collection Agent (if other than Georgia-Pacific or its designee) in payment of all accrued and unpaid Collection Agent Fee, if any, second to such Purchaser in payment in full of all accrued and unpaid Yield, third to such Purchaser in reduction to zero of the Aggregate Capital of such Purchaser, fourth to such Purchaser in payment of any other amounts owed by the Seller to such Purchaser under this Agreement, fifth to the Administrative Agent in payment of amounts owed by the Seller to the Administrative Agent under this Agreement and sixth to the Collection Agent (if Georgia-Pacific or its designee). After the Capital and Yield with respect to a Receivable Interest, and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) other amounts payable by the Seller to the AdministratorPurchasers or the Administrative Agent hereunder, have been paid in full, all additional Collections with respect to such Receivable Interest shall be paid to the Seller for its own account.
(d) For the purposes of this Section 2.04:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed merchandise or services, or any cash discount or other adjustment made by the Seller or an Originator, or any right of setoff is exercised by the Obligor thereunder, the Seller and the Servicer shall be deemed to have received on such day a Collection of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held Pool Receivable in trust for the benefit amount of such Purchaser reduction or adjustment;
(ii) if on any day either (w) any of the representations or warranties contained in Sections 4.01(h) or 4.01(n) are no longer true with respect to any Pool Receivable, (x) the Seller shall fail to perform or observe any term, covenant or agreement contained in Section 5.01(d), or (y) the Seller or any Originator or the Collection Agent (if Georgia-Pacific or an Affiliate thereof) shall extend, amend or otherwise modify the terms of any Pool Receivable, or amend, modify or waive the terms or conditions of the Contract under which such Pool Receivable arises in a manner which materially and applied adversely affects the collectibility of such Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in accordance with clause full;
(iii) below;except as provided in subsection (i) or (ii) of this Section 2.04(d), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent any Purchaser shall be required for any reason to pay over to an Obligor 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, such Purchaser shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Georgia Pacific Corp)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the AdministratorAdministrator (with the consent or at the direction of the Majority Purchasers), segregate in a separate account approved by the AdministratorAdministrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event (or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect)) for the benefit of each Purchaser Group, out of the Purchasers' Share of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital Investment and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group's Ratable Share of the Purchasers’ ' Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section SECTION 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of the Purchasers' Share of such Collections. Such remainder shall, to the extent representing a return on the Aggregate CapitalInvestment, ratably, according to each Purchaser’s Capital's Investment, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestmentthereto; PROVIDED, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, howeverHOWEVER, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestreinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the AdministratorAdministrator (with the consent or at the direction of the Majority Purchasers), segregate in a separate account approved by the AdministratorAdministrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event (or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect)) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%; PROVIDED, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, furtherFURTHER, that if in the Facility Termination Date has been extended pursuant to Section 1.11 and case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”"EXITING NOTICE") to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.11SECTION 1.10, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) "EXITING PURCHASER "), then such Purchaser's ratable share of such Collections based on its Investment shall not be Reinvested reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause CLAUSE (iii) below,
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Purchasers' Share of the Collections (or in the case of an Exiting Purchaser an amount equal to such Purchaser's ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser's ratable share of such Collections, such Purchaser's Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser's Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser's Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of "Termination Day" (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in SECTION 2 of EXHIBIT II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser, and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser's Investment, be reinvested in accordance with CLAUSE (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of Exiting Notice, and
(iv) release to the Seller (subject to SECTION 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with CLAUSE (ii) or the proviso to CLAUSE (iii) plus (y) the amounts that are required to be set aside pursuant to CLAUSE (i), the proviso to CLAUSE (ii) and CLAUSE (iii) plus (z) the Seller's Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in SECTION 1.4(d), below, deposit into each applicable Purchaser's account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date, Collections held for each Purchaser with respect to such Purchaser's Portion(s) of Investment pursuant to CLAUSE (b)(i) or (f) of Section 1.4 plus the amount of Collections then held for such Purchaser pursuant to CLAUSES (b)(ii) and (iii) of SECTION 1.4; PROVIDED, that if Greetings, any Originator, AGSC or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified Greetings, AGSC or such Originator (or such Affiliate) that such right is revoked, Greetings, AGSC or such Originator (or such Affiliate) may retain the portion of the Collections set aside pursuant to CLAUSE (b)(i) that represents the aggregate of each Purchaser Group's Ratable Share of the Purchasers' Share of the Servicing Fee. On or before the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer by facsimile of the amount of the Discount accrued with respect to each such Portion of Investment during the related Yield Period then ending.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in SECTION 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent's Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to CLAUSE (b)(i) and has not retained such amounts pursuant to CLAUSE (c), to the Servicer's own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group's Ratable Share of the Purchasers' Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, FIRST if Greetings, AGSC or any Originator or an Affiliate thereof is not the Servicer, to the Servicer's own account in payment in full of all accrued Servicing Fees, SECOND to each Purchaser Agent ratably according to Discount (for the benefit of the relevant Purchasers within such Purchaser Agent's Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent's Purchaser Group, THIRD to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent's Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent's Purchaser Group) in payment in full of each Purchaser's Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the first and second clauses of this SECTION 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Discount and Investment, respectively, FOURTH, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero or if such day is not a Termination Day, the Purchased Interest is reduced to 100%, and all accrued Servicing Fees payable to the Servicer (if other than Greetings, AGSC or any Originator or an Affiliate thereof) have been paid in full, to each Purchaser Group ratably (for the benefit of the Purchasers within such Purchaser Group) in accordance with its Ratable Share, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder and, FIFTH, to the Servicer's own account (if the Servicer is Greetings, AGSC or any Originator or an Affiliate thereof) in payment in full of the Aggregate of each Purchaser Group's Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this SECTION 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment; PROVIDED THAT Seller shall be deemed to have received a Collection due to a reduction or adjustment made to the Outstanding Balance of a Seasonal Receivable in connection with the return of unsold goods only to the extent Seller shall have a claim under SECTION 3.3(c) of the Sale and Contribution Agreement in connection with such Seasonal Receivable.
(ii) if on any day any of the representations or warranties in SECTION 1(g) or (n) of EXHIBIT III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in CLAUSE (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer (A) at least two Business Days' prior written notice thereof for any reduction of Aggregate Investment less than or equal to $10,000,000 and (B) at least ten Business Days' prior written notice thereof for any reduction of Aggregate Investment greater than $10,000,000 (in each case such notice shall include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to each such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) on the (i) next Settlement Date with respect to any Portions of Investment maintained by such Purchaser immediately following the related current Yield Period or (ii) such other date approved by the Administrator, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) only when in fact finally so paid; PROVIDED, that:
(A) the amount of any such reduction shall be not less than $1,000,000 for each Purchaser Group and shall be an integral multiple of $100,000, and the entire Aggregate Investment after giving effect to such reduction shall be not less than $50,000,000 and shall be in an integral multiple of $1,000,000 (unless the Aggregate Investment shall have been reduced to zero); and
(B) with respect to any Portion of Investment, the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Yield Period.
Appears in 1 contract
Sources: Receivables Purchase Agreement (American Greetings Corp)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the AdministratorAdministrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the AdministratorAdministrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital Investment and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Purchaser Group’s Ratable Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate CapitalInvestment, ratably, according to each Purchaser’s CapitalInvestment, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestreinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the AdministratorAdministrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the AdministratorAdministrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if in the Facility Termination Date has been extended pursuant to Section 1.11 and case of any Purchaser (or its that is a Conduit Purchaser, if such Purchaser Agent) has provided notice (an a “Exiting Declining Notice”) to its Purchaser Agent, the Administrator, the Seller and the Servicer of that such Purchaser’s refusal, pursuant to Section 1.11, to extend its Purchaser (or its related Committed Purchaser’s) Commitment hereunder (an a “Exiting Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Investment funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), then such Collections shall not be Reinvested reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii), below.
(iii) if such day is a Termination Day (or any day following the provision of a Declining Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of any Declining Conduit Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of a Declining Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Declining Conduit Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of a Declining Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of a Declining Notice, such Declining Notice has been revoked by the related Declining Conduct Purchaser and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the related Declining Conduit Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Declining Notice, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into each applicable Purchaser’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date, Collections held for each Purchaser with respect to such Purchaser’s Portion(s) of Investment pursuant to clause (b)(i) or (f) plus the amount of Collections then held for such Purchaser pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer by facsimile of the amount of the Discount accrued with respect to each such Portion of Investment during the related Yield Period then ending.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to each Purchaser Group ratably (for the benefit of the Purchasers within such Purchaser Group) in accordance with its Ratable Share, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts) owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the Aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to each such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) on the next Settlement Date with respect to any Portions of Investment maintained by such Purchaser immediately following the related current Yield Period, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $2,000,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $2,000,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respect to any Portion of Investment, the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Yield Period.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Wesco International Inc)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers Secured Parties (and shallor, if so requested by the Administrative Agent at the request any time that an Event of the AdministratorTermination shall have occurred that has not been waived in accordance with this Agreement, segregate in a separate account approved designated by the Administrator) a portion 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 Lock-Box Account; provided, however, that so long as each of the conditions precedent 42 set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Seller from such Collections that, together the amount (if any) to be applied to pay the purchase price for Receivables purchased by the Seller on such date in accordance with the other terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections set aside pursuant in the following order of priority:
(i) first, to this paragraphthe Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Yield Period (plus, shall equal if applicable, the amount necessary of Servicing Fees payable for any prior Yield Period to reduce the Purchased Interest extent such amount has not been distributed to 100%the Servicer);
(ii) second, which amount shall be deposited ratably to each Purchaser Agent’s account and other Purchaser Party (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) ratably, based on the next Weekly Settlement Date in accordance with Section 1.4(camount then due and owing); provided, furtherall accrued and unpaid Yield, that if the Facility Termination Date has been extended pursuant Fees and Breakage Fees due to Section 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust for the benefit of such Purchaser and applied 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 accordance with clause respect of such payments), 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;
(iii) third, as set forth in clause (x), (y) or (z) below;, as applicable:
Appears in 1 contract
Sources: Receivables Purchase Agreement (OUTFRONT Media Inc.)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
: (i) set aside and hold (or cause the Seller to set aside and hold) in trust (and shall, at the request of the Administrator, segregate in a separate account approved by in the name of the Seller held at the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) first, to the extent of such Collections, an amount equal to the Servicing Fee accrued through such day and not previously paid or set aside, second, to the extent of such Collections as reduced by any allocations pursuant to clause first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously paid or set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such daythird, and (z) to the extent funds are available thereforof such Collections as reduced by any allocations pursuant to clauses first and second, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee Fees accrued and unpaid through such day and not previously set aside;
, (ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)Rights; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestremit such remainder to the Seller or reinvest it, but shall set aside and hold (or cause the Seller to set aside and hold) in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraphclause (ii), shall equal the amount necessary to reduce the Purchased Interest to 100%% (determined as if such Collections set aside had been applied to reduce the Aggregate Capital and to cash collateralize the LC Participation Amount at such time), which amount shall be deposited first, ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective CapitalPurchasers) on the next Weekly Settlement Date in accordance with Section 1.4(c); and second, to the LC Collateral Account; provided, further, that if if, as of any date following the Facility Termination Date has date on which any amounts have been extended set aside due to a shortfall pursuant to Section 1.11 the immediately preceding proviso (such amount, a “Purchased Interest Shortfall”) but prior to the Settlement Date on which such amounts are to be remitted to each Purchaser Agent’s Account or the LC Collateral Account, the Purchased Interest Shortfall is reduced (without giving effect to any funds set aside pursuant to such proviso), the Servicer shall remit to the Seller from amounts set aside pursuant to such proviso, an amount equal to the lesser of (1) the amount so set aside during the current Calculation Period, and (2) an amount necessary to reduce the Purchased Interest to 100%, promptly following notice to the Administrator including reasonable supporting information; provided, further, that in the case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.111.22, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then ), then, such Collections shall not be Reinvested reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;, (iii) if such day is a Termination Day (or a day on which the Commitment of an Exiting Purchaser terminates), set aside and hold (or cause the Seller to set aside and hold) in trust (and shall, at the request of the Administrator, segregate in a separate
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d) below, deposit into each applicable Purchaser Agent’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date (for any Portion of Capital), Collections held for each Purchaser pursuant to Sections 1.4(b)(i), (ii) and (iii) and Section 1.4(f); provided, that if VWR or an Affiliate thereof is the Servicer, VWR (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the Servicing Fee. On or prior to the last day of each Calculation Period, each Purchaser Agent will notify the Servicer by email communications or other electronic delivery of the amount of Discount accrued with respect to its Portion of Capital during such Calculation Period or portion thereof.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), in each case, to the extent of funds available therefor, as follows: (i) if such distribution occurs on a day that is not a Termination Day, that is not a day on which the Commitment of an Exiting Purchaser terminates and on which the
(e) For the purposes of this Section 1.4: (i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and shall, subject to Section 1.4(e)(v), immediately pay any and all such amounts in respect thereof to a Collection Account for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4(b); (ii) if on any day any of the representations or warranties in Sections 1(j) or 3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of the full Outstanding Balance of such Pool Receivable and shall, subject to Section 1.4(e)(v), immediately pay any and all such amounts in respect thereof to a Collection Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4(b) (Collections deemed to have been received pursuant to Sections 1.4(e)(i) or (ii) are hereinafter sometimes referred to as “Deemed Collections”); (iii) except as provided in Sections 1.4(e)(i) or (ii) or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor specified an applicable Receivable; (iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof; and (v) if at any time before the Facility Termination Date the Seller is deemed to have received any Deemed Collection under Sections 1.4(e)(i) and (ii), so long as no Termination Day then exists, the Seller may satisfy its obligation to deliver the amount of
(f) If at any time the Seller wishes to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital) the Seller may do so as follows: (i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex E (each, a “Paydown Notice”) at least two (2) Business Days prior to the date of such reduction, and each such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence; (ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
Appears in 1 contract
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request of the AdministratorAdministrative Agent, segregate in a separate account approved designated by 738967635 16499153 the Administrative Agent, which shall be an account maintained and controlled by the Administrator) a portion of such Collections thatAdministrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date application in accordance with Section 1.4(c)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, furtherhowever, that if so long as each of the Facility Termination Date has been extended pursuant to conditions precedent set forth in Section 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) 5.03 are satisfied on such date, the Servicer may release to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then Borrower from such Collections shall not be Reinvested and shall instead be held in trust the amount (if any) necessary to pay (i) the purchase price for Receivables purchased by the benefit of Borrower on such Purchaser and applied date in accordance with clause 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 Settlement Date, the Servicer (or, following its assumption of control of the Collection Accounts, the Administrative Agent) shall, distribute such Collections in the following order of priority:
(i) 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 such amount has not been distributed to the Servicer);
(ii) second, to the Administrative Agent for distribution to each Lender (ratably, based on the amount then due and owing to such Lender and any related Credit Parties), all accrued and unpaid Interest, Fees and Breakage Fees due to any Lender and other related Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 4.03 and 11.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 4.03 and 11.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to any Lender or Credit Party;
(iii) third, as set forth in clause (x), (y) or (z) below;, as applicable:
Appears in 1 contract
Sources: Receivables Financing Agreement (PRA Health Sciences, Inc.)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Groupthe Purchasers, out of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each the Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the SellerSeller (or the Originators on behalf of the Seller to satisfy obligations of the Seller under the Purchase and Sale Agreement), ratably, on behalf of each Purchaser Groupthe Purchasers, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, be automatically reinvested, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, howeverthat if, that if after giving effect to any proposed reinvestment, the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestremit such remainder to the Seller or reinvest, but shall set aside and hold in trust for the Administrator (for the benefit of the Purchasers Purchasers) (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%% (determined as if such Collections set aside had been applied to reduce the Aggregate Capital at such time), which amount shall be deposited ratably to the Administration Account (for the benefit of the Purchasers) (to be ratably, according to the aggregate of the Capital of all Purchasers in each Purchaser Group, distributed to each Purchaser Agent’s account Agent (for the benefit of its related Purchasers and to be applied in reduction of their respective CapitalPurchasers)) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if in the Facility Termination Date has been extended pursuant to Section 1.11 and case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”, which, for the avoidance of doubt shall not have any effect until the then Scheduled Commitment Termination Date) to its Purchaser Agent and the AdministratorAdministrator of its refusal, following any request by the Seller and to extend the Servicer of such Purchaser’s refusal, pursuant to Section 1.11then Scheduled Commitment Termination Date, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) ), then such Purchaser’s ratable share (determined according to outstanding Capital) of Collections shall not be Reinvested reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below,
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust for the benefit of the Purchasers or Exiting Purchasers, as applicable, (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator), the entire remainder of such Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Capital; provided, that solely for purposes of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Capital shall be deemed to remain constant from the date of the provision of an Exiting Notice, as the case may be, until the date such Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchasers in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated)), and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (w) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii), plus (x) the amounts that are required to be set aside pursuant to clause (i), the provisos to clause (ii) and clause (iii), plus (y) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables, plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the Purchaser Agents, the Administrator, and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit into the Administration Account, no later than noon (New York time) on each Settlement Date, Collections held for the Purchasers pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Purchasers pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if ▇▇▇▇▇ Corning Sales or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified ▇▇▇▇▇ Corning Sales (or such Affiliate) that such right is revoked, ▇▇▇▇▇ Corning Sales (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Servicing Fee. On or prior to the Business Day immediately preceding each Settlement Date, each Purchaser Agent will notify the Administrator no later than noon (New York time) telephonically, by electronic mail or by facsimile of the amount of Discount accrued with respect to each Portion of Capital during the related Settlement Period or portion thereof and thereafter no later than 5:00 p.m. (New York time) on such day the Administrator will notify the Servicer telephonically, by electronic mail or by facsimile of such amounts.
(d) The Administrator shall distribute the amounts described in clause (c) above promptly following receipt of such funds deposited into the Administration Account (but no later than 5:00 p.m. (New York time)) as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to each Purchaser Agent ratably according to the Discount and Fees accrued during such Settlement Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Capital maintained by such Purchasers and all such accrued Fees; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within such Purchaser Agent’s Purchaser Group ratably according to Discount and Fees, respectively, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, to the Servicer in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second, to each Purchaser Agent ratably (based on the aggregate accrued and unpaid Discount and Fees payable to all Purchasers at such time) (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group and all accrued Fees, third, to each Purchaser Agent ratably according to the Actual Share of the Exposure of such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) in an amount, for each Purchaser Group, equal to such Purchaser Group’s Actual Share of the Exposure (or, if such day is not a Termination Day, such Purchaser Group’s Actual Share of the amount necessary to reduce the Purchased Interest to 100%) (determined as if such Collections had been applied to reduce the Aggregate Capital); provided, that each Purchaser Agent shall apply any amount distributed to it pursuant to this third clause in the following order of priority: (x) first, in payment of the aggregate Capital of each Purchaser in such Purchaser Agent’s Purchaser Group and (y) second, to the LC Collateral Account for the benefit of any LC Bank in such Purchaser Agent’s Purchaser Group, to cash collateralize such LC Bank’s LC Participation Amount until the amount of cash collateral held in such LC Collateral Account equals 100% of the Aggregate LC Participation Amount; it being understood that each Purchaser Agent shall distribute the amounts described in the first, second and third clauses of this Section 1.4(d)(ii) to the Purchasers within such Purchaser Agent’s Purchaser Group ratably according to Discount, Fees and Capital, respectively, and fourth, if the Aggregate Capital and accrued Aggregate Discount with respect to each Portion of Capital for all Purchaser Groups have been reduced to zero, the amount on deposit in the LC Collateral Account equals 100% of the Aggregate LC Participation Amount and the aggregate of the Purchasers’ Share of all accrued Servicing Fees payable to the Servicer have been paid in full, to each Purchaser Agent ratably, based on the amounts payable to each Purchaser in such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Aggregate Discount, fees payable pursuant to the Fee Letters and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder and under the other Transaction Documents have been paid in full, and the Exposure has been reduced to zero, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and, if such reduction or adjustment (x) causes the Purchased Interest to exceed 100% or (y) occurs after the occurrence of the Facility Termination Date, the Seller shall pay an amount equal to such reduction or adjustment to a Lock-Box Account for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4 within two (2) Business Days of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Sections l(j) or 3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full and, if such breach (x) causes the Purchased Interest to exceed 100% (determined on a pro forma basis after giving effect to such breach and subtraction of the Outstanding Balance of such Pool Receivables related to such breach from the Net Receivables Pool Balance) or (y) occurs after the occurrence of the Facility Termination Date, the Seller shall pay any and all such amounts in respect thereof to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4 within two (2) Business Days of knowledge of such breach;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in substantially the form of Annex C (each, a “Paydown Notice”) no later than noon (New York time) on the Business Day prior to the date of such reduction, such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) (A) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction or (B) the Seller shall remit to the Administrator in the Administration Account (for the benefit of the Purchasers), no later than noon (New York time), in immediately available funds, an amount equal to the desired amount of such reduction, and thereafter the Administrator shall remit to each Purchaser Agent’s account (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) such Purchaser Agent’s ratable amount, based on such Purchaser Agent’s Purchasers’ portion of the Aggregate Capital reduced thereby;
(iii) in the case of clause (ii)(A) above, the Servicer shall hold such Collections in trust for the benefit of the Administrator (for the benefit of each Purchaser based on their respective Portions of Capital funded thereby) for payment to the Administrator (for the benefit of each Purchaser) by deposit in the Administration Account on any Business Day designated by the Servicer in consultation with the Seller upon two Business Days’ notice thereof by the Servicer to the Administrator and each Purchaser Agent, and the Aggregate Capital (together with the Capital of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (on behalf of the Purchasers) only when in fact finally so paid; and
(iv) any such amounts owing by the Seller pursuant to Section 1.8 related to such reduction shall be deposited into the Administration Account pursuant to Section 1.4(c) on the Settlement Date immediately following the date of such reduction; provided, that the amount of any such reduction sha
Appears in 1 contract
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administrationthe administration of the Pool Receivables, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer, after payment in full of the Servicing Fee accrued and payable through such day:
(i) set aside and hold (or cause the Seller to set aside and hold) in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set asideaside and second, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter Fees accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on of the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)Rights; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestremit such remainder to the Seller or reinvest it, but shall set aside and hold (or cause the Seller to set aside and hold) in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraphclause (ii), shall equal the amount necessary to reduce the Purchased Interest to 100%% (determined as if such Collections set aside had been applied to reduce the Aggregate Capital and then, if applicable, to cash collateralize the LC Participation Amount, at such time), which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and Purchasers) or to be applied in reduction of their respective Capital) the LC Collateral Account on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if in the Facility Termination Date has been extended pursuant to Section 1.11 and case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.111.22, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then ), then, such Collections shall not be Reinvested reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below,
(iii) if such day is a Termination Day or a day on which the Commitment of an Exiting Purchaser terminates, set aside and hold (or cause the Seller to set aside and hold) in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the ratable benefit of each Purchaser Group the entire remainder of such Collections (or, in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Capital; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Capital shall be deemed to remain constant from the day on which the Commitment of such Exiting Purchaser terminates, until the date such Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated); provided, further, that if amounts are so set aside and held in trust on any Termination Day, such amounts shall, to the extent representing a return of Aggregate Capital, ratably in accordance with each Purchaser’s Capital, be reinvested in accordance with clause (ii) above on the next day to occur that is not a Termination Day (if any), and
(iv) subject to Section 1.4(f), release to the Seller for its own account any Collections in excess of: (x) the amounts that are required to be set aside or reinvested pursuant to clauses (i), (ii) and (iii) above plus (y) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the LC Bank, the Administrator and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d) below, deposit into an account designated for each Purchaser by its Purchaser Agent, on each Settlement Date, Collections held for such Purchaser pursuant to Sections 1.4(b)(i), (ii) and (iii) and Section 1.4(f). On or prior to the last day of each Calculation Period, each Purchaser Agent will notify the Servicer by email communication or other electronic delivery of the amount of Discount and Fees accrued during such Calculation Period or portion thereof and payable on such date.
(d) The Servicer shall distribute the amounts described in Section 1.4(b) on each Settlement Date, as follows:
(i) if such distribution occurs on a Settlement Date that is not a Termination Day, that is not a day on which the Commitment of an Exiting Purchaser terminates and that is not a day on which the Purchased Interest exceeds 100%, to each Purchaser Agent ratably (based on the Discount and Fees accrued during the related Yield Period) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and Fees with respect to the Purchasers within such Purchaser Agent’s Purchaser Group; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and Fees owed to each such Purchaser; and
(ii) if such distribution occurs on a Settlement Date that is a Termination Day, a day on which the Commitment of an Exiting Purchaser terminates or a day on which the Purchased Interest exceeds 100%: first, to each Purchaser Agent ratably (based on the Discount and Fees accrued during the related Yield Period) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and Fees with respect to the Purchasers within such Purchaser Agent’s Purchaser Group; second, to each Purchaser Agent ratably (based on the aggregate of the Capital of each Purchaser in such Purchaser Agent’s Purchaser Group) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of (x) if such day is a Termination Day, each Purchaser’s Capital, (y) if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100% or (z) if such day is not a Termination Day but is a day on which the Commitment of an Exiting Purchaser terminates, an amount equal to the Exiting Purchaser’s ratable share of the Collections set aside pursuant to Section 1.4(b)(iii) based on its Capital (determined as if such Collections had been applied to reduce the Aggregate Capital); it being understood that each Purchaser Agent shall distribute the amounts described in clauses first and second of this clause (ii) to the Purchasers within its Purchaser Group ratably (based on Discount and Fees and Capital, respectively, owed to such Purchasers); third, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants, the amount necessary to cash collateralize the LC Participation Amount (x) if such day is a Termination Day, until the amount of cash collateral held in such LC Collateral Account equals 100% of the LC Participation Amount or (y) if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%; fourth, if all amounts required to be paid and deposited pursuant to preceding clauses first through third of this clause (ii) have been so paid and deposited in full, to each Purchaser Group ratably (based on the amounts payable to each) (for the benefit of the Purchasers within such Purchaser Group), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder; and fifth, to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is either (A) reduced or canceled as a result of (I) any defective, rejected, returned goods or services, any cash or other discount, or any failure by an Originator to deliver any goods or perform any services or otherwise perform under the underlying Contract or invoice, (II) any change in or cancellation of any of the terms of such Contract or invoice or any other adjustment by an Originator, the Servicer or the Seller which reduces the amount payable by the Obligor on the related Receivable, (III) any rebates, warranties, allowances or charge-backs or (IV) any setoff or credit in respect of any claim by the Obligor thereof (whether such claim arises out of the same or a related transaction or an unrelated transaction), or (B) subject to any specific dispute, offset, counterclaim or defense whatsoever (except the discharge in bankruptcy of the Obligor thereof), in any such case, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction, adjustment, cancellation or dispute and shall, subject to Section 1.4(e)(v), (x) if such day is not a Termination Day, hold any and all such amounts in trust for the benefit of the Purchasers and their assigns and, on the following Settlement Date, apply such amounts in accordance with this Section 1.4 or (y) if such day is a Termination Day, within two (2) Business Days of such reduction or adjustment, pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of the Purchasers and their assigns and for application pursuant to this Section 1.4;
(ii) if on any day any of the representations or warranties in Sections 1(j) or 3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of the full Outstanding Balance of such Pool Receivable and shall, subject to Section 1.4(e)(v), (x) if such day is not a Termination Day, hold any and all such amounts in trust for the benefit of the Purchasers and their assigns and, on the following Settlement Date, apply such amounts in accordance with this Section 1.4 or (y) if such day is a Termination Day, within two (2) Business Days, pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of the Purchasers and their assigns and for application pursuant to this Section 1.4 (Collections deemed to have been received pursuant to Sections 1.4(e)(i) or (ii) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) except as provided in Sections 1.4(e)(i) or (ii) or as otherwise required by applicable Law, the relevant Contract or the applicable Eligible Supporting Letter of Credit, all Collections received from a Payment Obligor of any Receivable shall be applied to the Receivables of the applicable Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless otherwise specified by the applicable Obligor;
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof;
(v) if at any time before the Facility Termination Date the Seller is deemed to have received any Deemed Collection under Sections 1.4(e)(i) and (ii), so long as no Termination Day then exists, the Seller may satisfy its obligation to deliver the amount of such Deemed Collections to a Lock-Box Account by instead recalculating (or being deemed to have recalculated) the Purchased Interest by decreasing the Net Receivables Pool Balance by the amount of such Deemed Collections, so long as such adjustment does not cause the Purchased Interest to exceed 100%; and
(vi) if at any time the Seller satisfies in full its obligations hereunder with respect to Deemed Collections (whether by payment to a Lock-Box Account and/or by reducing the Net Receivables Pool Balance), the Administrator (on behalf of the Purchaser Agents and the Purchasers) shall reconvey to the Seller its interest in the Pool Receivable(s) to which such Deemed Collection relates, without recourse and without any representation or warranty except that such Pool Receivable is free and clear of liens, security interests, charges and encumbrances created by the Administrator and thereafter the Seller shall not sell any interest in such Receivable to the Administrator (on behalf of the Purchaser Agents and the Purchasers).
(f) If at any time the Seller wishes to cause the reduction of Aggregate Capital the Seller may do so as follows:
(i) the Seller shall deliver to the Administrator, each Purchaser Agent and the Servicer a Paydown Notice at least two Business Days prior to the date of such reduction for any reduction of the Aggregate Capital, and each such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold (or cause the Seller to set aside and hold) such Collections in trust for the benefit of each Purchaser ratably according to its Capital, for payment to each such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) on the date specified in the Paydown Notice (or such other date as agreed to by the Administrator) and the Aggregate Capital (together with the Capital of each Purchaser) shall be deemed reduced in the amount to be paid to such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) only when in fact finally so paid; provided, that:
(A) the amount of any such reduction (if not a reduction to zero) shall be an integral multiple of $100,000; and
(B) with respect to any Portion of Capital, the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Yield Period.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Targa Resources Partners LP)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request of the AdministratorAdministrative Agent, segregate in a separate account approved designated by the Administrator) a portion Administrative Agent, which shall be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Seller or received in any Lock-Box or Collection Account or in any HSBC Exception Account; provided, however, that so long as each of the conditions precedent set forth in Section 5.03 are satisfied on such date, the Servicer may release to the Seller from such Collections that, together the amount (if any) necessary to pay (i) the purchase price for Receivables purchased by the Seller on such date in accordance with the other Collections set aside 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 Settlement Date, the Servicer (or, following its assumption of control of the Collection Accounts pursuant to this paragraphSection 8.03, shall equal the Administrative Agent) shall, distribute such Collections in the following order of priority:
(i) first, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Yield Period (plus, if applicable, the amount necessary of Servicing Fees payable for any prior Yield Period to reduce the Purchased Interest extent such amount has not been distributed to 100%the Servicer);
(ii) second, which amount shall be deposited ratably to the Administrative Agent for distribution to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) ratably, based on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.11 amount then due and owing each Purchaser and any related Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) Party), all accrued and unpaid Yield, Fees and Breakage Fees due to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust for the benefit of such Purchaser and applied 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 accordance with clause respect of such payments), 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;
(iii) third, as set forth in clause (x), (y) or (z) below;, as applicable:
Appears in 1 contract
Sources: Receivables Purchase Agreement (Centric Brands Inc.)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the AdministratorAdministrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser GroupIssuer, out of the Issuer's Share of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group the Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Issuer's Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section SECTION 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Issuer, the remainder of the Issuer's Share of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestreinvest, but shall set aside and hold in trust for the benefit of the Purchasers Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the AdministratorAdministrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,
(iii) if such day is a Termination Day, which amount shall be deposited ratably to each Purchaser Agent’s account set aside, segregate and hold in trust (for and shall, at the benefit request of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held segregate in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;a separate account approved by the
Appears in 1 contract
Sources: Receivables Purchase Agreement (Werner Holding Co Inc /De/)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request of the AdministratorAdministrative Agent, segregate in a separate account approved designated by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%Administrative Agent, which amount shall be deposited ratably to each Purchaser Agent’s an account (maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date 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 1.4(c8.04(d)) or the Borrower or received in any Collection Account or Mail-Box; provided, furtherhowever, that if so long as each of the Facility Termination Date has been extended pursuant to conditions precedent set forth in Section 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) 5.03 are satisfied on such date, the Servicer may release to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then Borrower from such Collections shall not be Reinvested and shall instead be held in trust the amount (if any) necessary to pay the purchase price for Receivables purchased by the benefit of Borrower on such Purchaser and applied date in accordance with clause the terms of the Purchase and Sale Agreement (each such release of Collections, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Collection Accounts, the Administrative Agent) shall, distribute Collections on all Pool Receivables in the following order of priority:
(i) 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 such amount has not been distributed to the Servicer);
(ii) second, to the Administrative Agent for distribution to each Lender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to such Lender and other Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 4.03 and 12.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 4.03 and 12.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (x), (y) or (z) below;, as applicable:
Appears in 1 contract
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers Secured Parties (and shallor, if so requested by the Administrator (with the consent or at the request direction of the AdministratorMajority Lenders), segregate in a separate account approved designated by the Administrator, which shall be an account maintained and/or controlled by the Administrator unless the Administrator otherwise instructs in its sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are actually received by the Servicer or the Borrower 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 on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay (i) the unpaid purchase price for Receivables purchased by the Borrower as of such date in accordance with the terms of the applicable Sale Agreement or (ii) amounts owing by the Borrower to the Originators under the Company Note (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrator) shall, distribute such Collections in the following order of priority:
(i) first, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Accrual Period (plus, if applicable, the amount of Servicing Fees payable for any prior Accrual 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 Accrual Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage 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 Accrual 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, to the Lenders (ratably, based on the aggregate outstanding Principal of each Lender at such time) for the payment of a portion of the outstanding Aggregate Principal at such Collections thattime, together with the other Collections set aside pursuant in an aggregate amount equal to this paragraph, shall equal the amount necessary to reduce the Purchased Interest Borrowing Base Deficit to 100%zero ($0);
(B) on and after the occurrence of the Termination Date, to each Lender (ratably, based on the aggregate outstanding Principal of each Lender at such time) for the payment in full of the aggregate outstanding Principal of such Lender at such time; or
(C) prior to the occurrence of the Termination Date, at the election of the Borrower and in accordance with Section 2.02(d), to the payment of all or any portion of the outstanding Principal of the Lenders at such time (ratably, based on the aggregate outstanding Principal 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, including, without limitation, the payment of any amounts pursuant to a Release.
(b) All payments or distributions to be made by the Servicer, the Borrower and any other Person to the Lenders (or their respective related Affected Persons and the Borrower Indemnified Parties), shall be paid or distributed to the applicable party to which such amounts are owed.
(c) If and to the extent the Administrator, any Credit Party, any Affected Person or any Borrower 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 Insolvency Proceeding) any amount received on its behalf hereunder, such amount shall be deposited ratably deemed not to each Purchaser Agent’s account have been so received but rather to have been retained by the Borrower and, accordingly, the Administrator, such Credit Party, such Affected Person or such Borrower Indemnified Party, as the case may be, shall have a claim against the Borrower for such amount.
(d) For the purposes of this Section 4.01:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Borrower, any Originator, the Servicer or any Affiliate of the Servicer, or any setoff 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 such reduction or adjustment and shall, within two (2) Business Days, pay to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended Credit Parties for application pursuant to Section 1.11 4.01(a), an amount equal to (x) if such reduction or adjustment occurs prior to the Termination Date and no Event of Default has occurred and is continuing, the lesser of (A) the sum of all deemed Collections with respect to such reduction or adjustment and (B) an amount (if any) necessary to eliminate any Purchaser Borrowing Base Deficit that exists at such time and after giving effect to such reduction or adjustment and (y) if such reduction or adjustment 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 in respect thereof;
(ii) if on any day any of the representations or warranties in Section 7.01 is not true with respect to any Pool Receivable, the Borrower shall be deemed to have received on such day a Collection of such Pool Receivable in full and shall, within two (2) Business Days, pay to a Lock-Box Account (or its Purchaser Agentas otherwise directed by the Administrator at such time) has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust for the benefit of the Credit Parties for application pursuant to Section 4.01(a), an amount equal to (x) if such Purchaser breach occurs prior to the Termination Date and applied no Event of Default has occurred and is continuing, the lesser of (A) the sum of all deemed Collections with respect to such breach and (B) an amount (if any) necessary to eliminate any Borrowing Base Deficit that exists at such time and after giving effect to such breach 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 in accordance with clause respect thereof (Collections deemed to have been received pursuant to Section 4.01(d)(i) and 4.01(d)(ii) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) below;except as provided in clauses (i) or (ii) above or otherwise required by Applicable Law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Credit Party, any Affected Person or any Borrower Indemnified Party shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Borrower and, accordingly, such Person shall have a claim against the Borrower for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
Appears in 1 contract
Sources: Receivables Financing Agreement (Worthington Industries Inc)
Settlement Procedures. (a) The collection Collection of the Pool Receivables shall be administered by the Servicer in accordance with the terms of this Agreement. The Seller shall provide to the Servicer (if other than the Seller) on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased InterestParticipation.
(b) The Servicer shallshall segregate and hold all Collections in trust for the benefit of the Seller and the Purchaser and, on each day on which within one Business Day of the receipt (or deemed receipt) of Collections of Pool Receivables are received (or deemed received) by the Seller or Servicer, deposit such Collections into a Deposit Account. Servicer shall on the Servicerday any funds deposited in a Deposit Account become available transfer such funds to the Collection Account. With respect to such Collections on the day deposited into the Collection Account, the Servicer shall:
(i) transfer from the Collection Account to the Liquidation Account, set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Groupthe Purchaser, out of the percentage of such CollectionsCollections represented by the Participation, (x) first an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital Investment and not previously set asideaside and second, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of Servicing Fee (if the Servicing Originator or any Affiliate thereof is not the Servicer), and third the Program Fee accrued through such day for the Participation and not previously set aside;; and
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Purchaser, the remainder of the percentage of such Collections. Such remainder shall, to represented by the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, Participation; such Collections shall be automatically reinvested in Pool Receivables, and in the Related Security, Security and Collections and other proceeds with respect thereto (each such reinvestmentthereto, a “Reinvestment,” and “Reinvest” the Participation shall have the correlative meaning)be automatically recomputed pursuant to Section 1.3; provided, howeverit being understood, that if prior to remitting to the Purchased Interest would exceed 100%Seller the remainder of such Collections by way of reinvestment in Pool Receivables, then the Servicer shall have calculated the Participation on such day, and if such Participation shall exceed 100% of the sum of the Net Receivables Pool Balance on such day plus the amount on deposit in the Liquidation Account (other than amounts transferred thereto from the Collection Account to pay Discount, the Servicing Fee and the Program Fee pursuant to the preceding paragraph (i)), such Collections shall not Reinvest, be remitted to the Seller but shall set aside and hold in trust be transferred to the Liquidation Account for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause paragraph (iii) below;
(iii) if such day is a Termination Day, (A) transfer to the Liquidation Account for the Purchaser the entire remainder of the percentage of the Collections represented by the Participation; provided that so long as the Termination Date has not occurred if any amounts are so transferred to the Liquidation Account on any Termination Day and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or are waived by the Agent, such previously transferred amounts shall, to the extent still on deposit in the Liquidation Account, be reinvested in accordance with the preceding paragraph (ii) on the day of such subsequent satisfaction or waiver of conditions, and (B) transfer to the Liquidation Account for the Purchaser the entire remainder of the Collections in the Collection Account represented by the Seller's share of the Collections, if any; provided that so long as the Termination Date has not occurred if any amounts are so transferred to the Liquidation Account on any Termination Day and thereafter the conditions set forth in Section 2 of Exhibit II are satisfied or are waived by the Agent, such previously transferred amounts to the extent still on deposit in the Liquidation Account, shall be distributed to the Seller on the day of such subsequent satisfaction or waiver of conditions; and
(iv) during such times as amounts are required to be reinvested in accordance with the foregoing paragraph (ii) or the proviso to paragraph (iii), release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of (x) such reinvested amounts, (y) the amounts that are required to be transferred to the Liquidation Account pursuant to paragraph (i) above and (z) in the event the Seller is not the Servicer, all reasonable and appropriate out-of-pocket costs and expenses of such Servicer of servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall deposit into the Purchaser's Account (or such other account designated by the Agent), on the last day of each Settlement Period relating to a Portion of Investment:
(i) Collections held on deposit in the Liquidation Account for the benefit of the Purchaser pursuant to Section 1.4(b)(i) in respect of accrued Discount and the Program Fees with respect to such Portion of Investment;
(ii) Collections held on deposit in the Liquidation Account for the benefit of the Purchaser pursuant to Section 1.4(f) with respect to such Portion of Investment; and
(iii) the lesser of (x) the amount of Collections then held on deposit in the Liquidation Account for the benefit of the Purchaser pursuant to Section 1.4(b)(iii) and (y) such Portion of Investment.
(d) Upon receipt of funds deposited into the Purchaser's Account pursuant to Section 1.4(c) with respect to any Portion of Investment, the Agent shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day, first to the Purchaser in payment in full of all accrued Discount with respect to such Portion of Investment, second, to the Purchaser in payment of accrued and unpaid Program Fees, and third, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to Section 1.4(b)(i), to the Servicer (payable in arrears on the last day of each calendar month) in payment in full of accrued Servicing Fees so set aside with respect to such Portion of Investment; and
(ii) if such distribution occurs on a Termination Day, first to the Purchaser in payment in full of all accrued Discount with respect to such Portion of Investment, second to the Purchaser in payment of accrued and unpaid Program Fees, third, to the Purchaser in payment in full of such Portion of Investment, fourth, if AFC or any of its Affiliates is not the Servicer, to the Servicer in payment in full of all accrued Servicing Fees with respect to such Portion of Investment, and fifth, if the Investment and accrued Discount with respect to each Portion of Investment have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than AFC or any of its Affiliates) have been paid in full, to the Purchaser, the Agent and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder and then to the Servicer (if the Servicer is AFC or any of its Affiliates) in payment in full of all accrued Servicing Fees. After the Investment, Program Fees, Discount and Servicing Fees with respect to the Participation, and any other amounts payable by the Seller to the Purchaser, the Agent or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Participation shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any discount, rebate or other adjustment made by the Originator, Seller or Servicer, or any setoff or dispute between the Seller, Originator or the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in paragraphs A.(h) or A.(o) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in paragraph (i) or (ii) of this Section 1.4(e), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied in accordance with the Contract with such Obligor and the Credit and Collection Policy; and
(iv) if and to the extent the Agent or the Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller and, accordingly, the Agent or the Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of a Portion of Investment (but not to commence the liquidation, or reduction to zero, of the entire Investment of the Participation), the Seller may do so as follows:
(i) the Seller shall give the Agent at least two Business Days' prior written notice thereof (including the amount of such proposed reduction and the proposed date on which such reduction will commence),
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections with respect to such Portion of Investment not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction, and
(iii) the Servicer shall hold such Collections in the Liquidation Account for the benefit of the Purchaser, for payment to the Agent on the last day of the current Settlement Period relating to such Portion of Investment, and the applicable Portion of Investment shall be deemed reduced in the amount to be paid to the Agent only when in fact finally so paid; provided that,
A. unless otherwise agreed by the Agent the amount of any such reduction shall be not less than $1,000,000 and shall be an integral multiple of $100,000, and the entire Investment (if any) of the Participation after giving effect to such reduction shall be not less than $2,000,000,
B. the Seller shall use reasonable efforts to choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Yield Period, and
C. if two or more Portions of Investment shall be outstanding at the time of any proposed reduction, such proposed reduction shall be applied, unless the Seller shall otherwise specify in the notice given pursuant to Section 1.4(f)(i), to the Portion of Investment with the shortest remaining Yield Period.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Minnesota Power & Light Co)
Settlement Procedures. (a) The collection Collection of the Pool Receivables shall be administered by the Servicer a Servicer, in accordance with the terms of this Agreement and the Servicer Agreement. The Seller shall provide to the Servicer (if other than the Seller) on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Liquidation Day and current computations of the Purchased each Receivable Interest.
(b) The Subject to the provisions of paragraph (l) of Exhibit IV, the Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicerit with respect to any Receivable Interest:
(i) set aside and hold in trust for the Investors (and shall, at but the request of the Administrator, Servicer shall not be required to segregate in into a separate account approved by account, unless the Administrator) for the benefit of each Purchaser GroupAgent shall so specifically request or a Daily Settlement Trigger has occurred), out of the percentage of such Collections, (x) an amount equal to the Aggregate Discount accrued through Collections represented by such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available thereforReceivable Interest, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Yield and Servicer Fee accrued through such day for such Receivable Interest and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Liquidation Day, remit to reinvest with the Seller, ratably, on behalf of each Purchaser Groupthe Investors, the remainder of such percentage of Collections. Such , to the extent representing a return of Invested Amount, by recomputation of such Receivable Interest pursuant to Section 1.03;
(iii) if such day is a Liquidation Day, set aside and hold in trust for the Investors (but the Servicer shall not be required to segregate into a separate account, unless the Agent shall so specifically request) the entire remainder of such per- centage of Collections; provided that if amounts are set aside and held in trust on any Liquidation Day, and thereafter during such Settlement Period the conditions set forth in Paragraph 3 of Exhibit II are satisfied or are waived by the Agent, such previously set aside amounts shall, to the extent representing a return of Invested Amount, be reinvested in accordance with the preceding paragraph (ii) on the Aggregate Capital, ratably, according day of such subsequent satisfaction or waiver of conditions; and (iv) during such times as amounts are required to each Purchaser’s Capital, be automatically reinvested in Pool Receivablesaccordance with the foregoing paragraph (ii) or the proviso to paragraph (iii), and release to the Seller for its own account any Collections in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion excess of such Collections that, together with amounts and the other Collections amounts that are required to be set aside pursuant to paragraph (i) above.
(c) The Servicer shall deposit into the Agent's Account, on the last day of each Settlement Period for a Receivable Interest, Collections held for the Investors that relate to such Receivable Interest pursuant to Section 1.04(b).
(d) Upon receipt of funds deposited into the Agent's Account, the Agent shall distribute them as follows:
(i) if such distribution occurs on a day that is not a Liquidation Day, first to the Investors in payment in full of all accrued Yield and then to the Servicer in payment in full of all accrued Servicer Fee.
(ii) if such distribution occurs on a Liquidation Day, first to the Investors in payment in full of all accrued Yield, second to the Investors in reduction to zero of all Invested Amount, third to the Investors or the Agent in payment of any other amounts owed by the Seller hereunder, and fourth to the Servicer in payment in full of all accrued Servicer Fee. After the Invested Amount and Yield and Servicer Fee with respect to a Receivable Interest, and any other amounts payable by the Seller to the Investors or the Agent hereunder, have been paid in full, all additional Collections with respect to such Receivable Interest shall be paid first, to CL-NY in an amount equal to the aggregate payments, if any, that shall have been made to the Purchasers under the LAPA from funds on deposit in the Special CCA and that shall not yet have been repaid, together with interest thereon at a rate equal to the Assignee Rate in effect from time to time, second, to the CCA Depositors (as defined in the LAPA) pro rata in an amount equal to the aggregate payments, if any, that shall have been made to the Purchasers under the LAPA from funds on deposit in the July CCA and that shall not yet have been repaid, together with interest thereon at a rate equal to the Assignee Rate in effect from time to time, then, to the Lenders under the Subordinated Loan Agreement pro rata in an amount equal to the principal (if any) and interest then due and payable thereunder, and the remainder to the Seller for its own account.
(e) For the purposes of this paragraphSection 1.04:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed merchandise or services or any cash discount, credit memo, rebate, cooperative advertising, chargeback or other adjustment made by the Seller or the relevant Originator, or any setoff or dispute between the Seller and an Obligor due to a claim arising out of the same or any other transaction, the Seller shall equal be deemed to have received on such day a Collection of such Pool Receivable in the amount necessary of such reduction or adjustment;
(ii) if on any day (x) any of the representations or warranties in paragraph (h) of Exhibit III is no longer true with respect to reduce any Pool Receivable, or (y) the Purchased Interest Seller or the Agent determines that any Pool Receivable which purports to 100%be part of the Net Receivables Pool Balance was a Defaulted Receivable on the date of the initial creation of an undivided ownership interest therein under this Agreement, which the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full equal to the Outstanding Balance thereof;
(iii) except as provided in paragraph (i) or (ii) of this Section 1.04(e), or as otherwise required by applicable law or the relevant Contract, all Collec- tions received from an Obligor of any Receivables shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Agent or the Investors shall be required for any reason to pay over to an Obligor any amount received on its behalf hereunder, such amount shall be deposited ratably deemed not to each Purchaser Agent’s account (have been so received but rather to have been retained by the Seller and, accordingly, the Agent or the Investors, as the case may be, shall have a claim against the Seller for the benefit of its related Purchasers such amount, payable when and to be applied in reduction of their respective Capital) the extent that any distribution from or on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer behalf of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held Obligor is made in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;respect thereof.
Appears in 1 contract
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any the Facility Termination Day Date and current computations of the Purchased InterestInterest (and the components thereof).
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the AdministratorAdministrator after the occurrence of an Unmatured Termination Event or Termination Event, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the sum of (w) the Aggregate Discount accrued through such day for each Portion portion of Capital and not previously set aside, (yx) an amount equal to the fees set forth in each Purchaser Group Fee Letter owing to the Purchasers and the Administrator accrued and unpaid through such day, and (zy) all other amounts then due and payable by the Seller under this Agreement to the extent funds are available thereforPurchasers, an amount equal to the aggregate of each Purchasers’ Share of Purchaser Agents, the Servicing Fee accrued through such day Administrator, and not previously set asideany other Indemnified Party or Affected Person;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder the Collections not set aside pursuant to clause (b)(i) of this Section 1.4 shall, to the extent representing a return on the Aggregate of Capital, ratably, be automatically Reinvested according to each Purchaser’s Capital, be automatically reinvested Capital in Pool Receivables, and in the associated Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that that, if after giving effect to any such Reinvestment, (x) the Purchased Interest would exceed 100%% or (y) the Aggregate Capital would exceed the Purchase Limit then in effect, then the Servicer shall not so Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to (x) reduce the Purchased Interest to 100%% and (y) cause the Aggregate Capital to not exceed the Purchase Limit, as applicable, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); Table of Contents
(iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator), for the benefit of each Purchaser Group, the entire remainder of the Collections not set aside pursuant to clause (b)(i) of this Section 1.4; provided, furtherthat if amounts are so set aside and held in trust on any Termination Day, then such previously set-aside amounts shall, to the extent representing a return on Capital, be Reinvested in accordance with clause (ii) above on the next day to occur that is not a Termination Day (if any); and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (w) amounts required to be Reinvested in accordance with clause (ii) above plus (x) the amounts that are required to be set aside pursuant to clause (i) above, pursuant to the proviso to clause (ii) above and pursuant to clause (iii) above, plus (y) the Seller’s Servicing Fees accrued and unpaid through such day.
(c) On the fifth (5th) Business Day of each calendar month, each Purchaser Agent will notify the Servicer by electronic mail of the amount of Discount accrued with respect to each portion of Capital during the previous Settlement Period. On each Settlement Date, the Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit into the account specified by each Purchaser Agent Collections held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to Section 1.4(b)(i) or 1.4(f) plus the amount of Collections then held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to Sections 1.4(b)(ii) and 1.4(b)(iii); provided, however, that if the Facility Termination Date has been extended Information Package delivered by the Servicer indicates a Purchased Interest in excess of 100%, then the amount of Collections not Reinvested pursuant to Section 1.11 and any clause (b)(ii) shall be deposited into the account for each Purchaser (or its maintained by the applicable Purchaser Agent) has provided notice (an “Exiting Notice”) Agent as may be designated from time to the Administrator, time by such Purchaser Agent to the Seller and the Servicer on the date such Information Package is received and on each day thereafter to the extent the Purchased Interest exceeds 100%.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c) on each Settlement Date as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%: first, to the Servicer, the Servicing Fee, to the extent accrued and unpaid through the last day of the immediately preceding Settlement Period until such accrued fees are paid in full, to the extent not otherwise netted out from Collections by the Servicer; second, to the extent such amounts are then payable hereunder, to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Agent’s Purchaser Group), in payment in full of, all accrued Discount with respect to each portion of Capital maintained by such Purchasers (it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each Purchaser’s Capital); Table of Contents third, ratably to the Purchaser Agents and the Administrator, all accrued fees (including program fees) owing to the Purchasers (it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each such Purchaser’s refusalCapital) and to the Administrator; fourth, if the Servicer has set aside amounts in respect of a reduction of the Aggregate Capital pursuant to Section 1.11clause (f) below, to extend each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Agent’s Purchaser Group), in payment in full of the related reduction in Aggregate Capital; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each such Purchaser’s Capital; and fifth, to the Seller for its own account.
(ii) if such distribution occurs on a Termination Day or on any day on which the Purchased Interest exceeds 100%: first, to the Servicer, the Servicing Fee, to the extent accrued and unpaid through the last day of the immediately preceding Settlement Period until such accrued fees are paid in full, to the extent not otherwise netted out from Collections by the Servicer; second, to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Agent’s Purchaser Group), in payment in full of, all accrued Discount with respect to each portion of Capital maintained by such Purchasers (it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each Purchaser’s Capital); third, ratably to the Purchaser Agents and the Administrator, such accrued fees owing to the Purchasers (it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each Purchaser’s Capital) and to the Administrator; fourth, to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Agent’s Purchaser Group), in payment in full of each Purchaser’s Capital (or if such day is not a Termination Day but is a day on which the Purchased Interest exceeds 100%, the amount necessary to reduce the Purchased Interest to 100%) it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its related Committed Purchaser Group ratably in accordance with each Purchaser’s) Commitment ’s Capital; fifth, if the Aggregate Capital and accrued Aggregate Discount and fees with respect thereto have been reduced to zero (or the Aggregate Capital has been reduced to the extent necessary to cause the Purchased Interest not to exceed 100%), and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Purchasers, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other Aggregate Unpaids owed thereto by the Seller hereunder (other than contingent indemnification obligations); and Table of Contents sixth, to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or canceled as a result of (x) without duplication, any revision, cancellation, allowance, rebate, dilution, discount, or other adjustment (including, without limitation, an extension or adjustment made pursuant to the applicable Credit and Collection Guidelines) made by the Seller, the Servicer or any Originator, including in connection with the cancellation and reissuance of any Pool Receivable, or (y) any set-off or dispute between the Seller or any Originator and an Obligor (any such reduction or cancellation, a “Exiting PurchaserDilution”), in any such case, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction, adjustment, cancellation or dispute (which, in the case of a cancellation and reissuance of any Pool Receivable, shall be an amount equal to the full Outstanding Balance of the cancelled Pool Receivable) then and shall, subject to Section 1.4(e)(v), (x) if such Collections shall day is not be Reinvested a Termination Day, hold any and shall instead be held all such amounts in trust for the benefit of each Purchaser Group and, on the following Settlement Date, apply such Purchaser and applied amounts in accordance with clause this Section 1.4 or (y) if such day is a Termination Day, within two (2) Business Days of such reduction or adjustment, pay from its own funds any and all such amounts in respect thereof to a Collection Account or the Concentration Account for the benefit of each Purchaser Group and for application pursuant to this Section 1.4;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III is not true with respect to any Pool Receivable a Collection of the full Outstanding Balance of such Pool Receivable, the Seller shall, subject to Section 1.4(e)(v), (1) if such day is not a Termination Day, hold any and all such amounts in trust for the benefit of each Purchaser Group and, on the following Settlement Date, apply such amounts in accordance with this Section 1.4 or (2) if such day is a Termination Day, within two (2) Business Days, pay any and all such amounts from its own funds in respect thereof to a Collection Account or the Concentration Account for the benefit of each Purchaser Group and for application pursuant to this Section 1.4 (Collections deemed to have been received pursuant to Sections 1.4(e)(i) or (ii) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) belowexcept as provided in clause (i) or (ii), or as otherwise required by applicable Law, all Collections received from an Obligor of any Pool Receivable shall be applied to the Pool Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables;
(iv) if and to the extent the Administrator or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount Table of Contents shall be deemed not to have been so received by the Administrator or such Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator or such Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof;
(v) if at any time before the Facility Termination Date the Seller is deemed to have received any Deemed Collection under Sections 1.4(e)(i) or (ii), so long as no Termination Day then exists, the Seller may satisfy its obligation to deliver the amount of such Deemed Collections to a Collection Account or the Concentration Account by instead recalculating (or being deemed to have recalculated) the Purchased Interest by decreasing the Net Receivables Pool Balance by the amount of such Deemed Collections, so long as such adjustment does not cause the Purchased Interest to exceed 100%; and
(vi) if at any time the Seller satisfies in full its obligations hereunder with respect to Deemed Collections (whether by payment to a Collection Account or the Concentration Account and/or by reducing the Net Receivables Pool Balance), the Administrator, on behalf of the Purchasers, shall re-convey to the Seller the Pool Receivable(s) to which such Deemed Collection relates, without recourse and without any representation or warranty except that such Pool Receivable is free and clear of liens, security interests, charges and encumbrances created by the Administrator or any such Purchaser, and thereafter the Seller shall not sell any interest in such Receivable to the Administrator on behalf of the Purchasers.
(f) At any time, the Seller may elect to cause a reduction of Capital in accordance with this clause (f). The Seller may do so as follows:
(i) the Seller shall deliver to the Administrator, each Purchaser Agent and the Servicer written notice in substantially the form of Annex C (the “Paydown Notice”) at least two Business Days’ prior to the date of such reduction for any reduction of Aggregate Capital, which notice shall include the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be Reinvested until the amount thereof not so Reinvested shall equal the desired amount of the reduction of Aggregate Capital; and
(iii) the Servicer shall hold (or cause the Seller to set aside and hold) such Collections in trust for each Purchaser, for payment to each Purchaser Agent for the benefit of such Purchaser on the next Settlement Date, and the Aggregate Capital shall be deemed reduced in the amount to be paid to a Purchaser Agent only when in fact finally so paid; provided, that (x) the amount of any such reduction (if not a reduction to zero) shall be not less than $1,000,000 and shall be an integral multiple of $100,000, and the entire Aggregate Capital after giving effect to such reduction shall be not less than $10,000,000 (unless the entire Table of Contents Aggregate Capital shall have been reduced to zero); and (y) the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Settlement Period.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Vistra Energy Corp.)
Settlement Procedures. (a) The collection Collection of the Pool Receivables shall be administered by the Servicer a Servicer, in accordance with the terms of Article VI of this Agreement. The Seller shall provide to the Servicer (if other than the Seller) on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Liquidation Day and current computations of the Purchased each Receivable Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicerit:
(i) with respect to each Receivable Interest, set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administratorbut not physically segregate) for the benefit of each Purchaser GroupInvestors or the Banks that hold such Receivable Interest, out of the percentage of such Collections, (x) an amount equal to the Aggregate Discount accrued through Collections represented by such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available thereforReceivable Interest, an amount equal to the aggregate Yield, Fees and Servicer Fee (and, during the Term Period, an amount equal to the Excess Interest in respect of each Purchasers’ Share of the Servicing Fee all Cash Secured Advances) accrued through such day for such Receivable Interest and not previously set aside;
(ii) subject with respect to Section 1.4(f)each Receivable Interest, if such day is not a Termination DayLiquidation Day for such Receivable Interest, remit to reinvest with the Seller, ratably, Seller on behalf of each Purchaser Groupthe Investors or the Banks that hold such Receivable Interest the percentage of such Collections represented by such Receivable Interest;
(iii) if such day is a Liquidation Day for (x) any one or more (but not all) Receivable Interests, set aside and hold in trust (and, at the request of the Agent, segregate) for the Investors or the Banks that hold such Receivable Interests, the remainder percentage of such Collections. Such remainder Collections represented by such Receivable Interests, or (y) all of the Receivable Interests, set aside and hold in trust (and, at the request of the Agent, segregate) all of the remaining Collections received by the Servicer on such date (but not in excess of the Capital of such Receivable Interests and any other amounts payable by the Seller hereunder); provided that if amounts are set aside and held in trust on any Liquidation Day occurring prior to the Termination Date for the applicable Receivable Interest, and thereafter prior to the next occurring Settlement Date (Capital) the conditions set forth in Section 3.02 are satisfied or waived by the Agent, such previously set aside amounts shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s of Capital, be automatically reinvested in Pool Receivablesaccordance with the preceding subsection (ii) on the day of such subsequent satisfaction or waiver of conditions; and
(iv) during such times as amounts are required to be reinvested in accordance with the foregoing subsection (ii) or the proviso to subsection (iii), release to the Seller for its own account any Collections in excess both of such amounts and in of the Related Securityamounts that are required to be set aside pursuant to subsection (i) above.
(c) [Intentionally Omitted].
(d) The Servicer shall deposit into the Agent’s Account, (i) on the Settlement Date (Yield and Fees) for each Receivable Interest, Collections held for the Investors or the Banks with respect to Yield, Fees, Excess Interest and other proceeds with respect thereto amounts (other than Capital) that relate to such Receivable Interest pursuant to Section 2.04(b), (ii) on each such reinvestmentSettlement Date (Capital) following delivery of a Seller Report which shows that (x) the outstanding Capital plus Total Reserves exceeded (y) the product of the Maximum Percentage Factor multiplied by the Net Receivables Pool Balance (as of the related Reporting Date), a “Reinvestment,” and “Reinvest” shall have all other Collections held for the correlative meaningInvestors or the Banks pursuant to clause (iii) of Section 2.04(b); provided, however, that if the Purchased Interest would exceed 100%, then aggregate amount deposited in the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside Agent’s Account pursuant to this paragraphclause (ii) with respect to any Seller Report shall not exceed an amount such that, shall equal after giving effect to the application of such amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital with respect to the Receivable Interests shown in that Seller Report, the sum of outstanding Capital plus the Total Reserves is equal to the product of the Maximum Percentage Factor multiplied by the Net Receivables Pool Balance, and (iii) on each Settlement Date (Capital) on which Collections are held for the next Weekly Settlement Date Investors or the Banks pursuant to clause (iii) of Section 2.04(b), after giving effect to any deposits to be made on such date pursuant to the preceding clause (ii) of this Section 2.04(d), all such remaining Collections.
(e) Upon receipt of funds deposited into the Agent’s Account, the Agent shall distribute them as follows:
(i) if such distribution occurs on a day that is not a Liquidation Day, first to the Investors, the Banks and, during any Term-Out Period, the Term-Out Banks that hold the relevant Receivable Interest and to the Agent in ratable payment in full of all accrued Yield and Fees and remaining unpaid accrued interest in respect of all Cash Secured Advances (pursuant to the last sentence of Section 2.15) and then to the Servicer in payment in full of all accrued Servicer Fee; and
(ii) if such distribution occurs on a Liquidation Day, first to the Investors or the Banks and/or Term-Out Banks that hold the relevant Receivable Interest and to the Agent in ratable payment in full of all accrued Yield and Fees and interest in respect of all Cash Secured Advances, second to such Investors or Banks in reduction to zero of all Capital, third to the Term-Out Banks in reduction to zero of the principal amount of all Cash Secured Advances remaining after application of the Cash Collateral in accordance with Section 1.4(c2.17(d); provided, furtherfourth to the Investors, that if Banks, Term-out Banks or the Facility Termination Date has been extended pursuant Agent in payment of any other amounts owed by the Seller hereunder or under any other Transaction Document, and fifth to Section 1.11 the Servicer in payment in full of all accrued Servicer Fee. After the payment in full of Capital, Yield, Fees and the Servicer Fee with respect to all Receivable Interests, and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) other amounts payable by the Seller to the AdministratorInvestors, the Banks or the Agent hereunder or under any other Transaction Document, including, without limitation, any reimbursement obligations of the Seller with respect to any indemnity provided by the Agent under any Deposit Account Agreement or the Collateral Advance Account Agreement, all additional Collections with respect to the Receivable Interests shall be paid to the Seller for its own account.
(f) For the purposes of this Section 2.04:
(i) if on any day any Pool Receivable becomes (in whole or in part) a Diluted Receivable, the Seller and the Servicer shall be deemed to have received on such day a Collection of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held Pool Receivable in trust for the benefit amount of such Purchaser and applied Diluted Receivable;
(ii) if on any day any of the representations or warranties contained in accordance Section 4.01(h) is no longer true with clause respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) belowexcept as provided in subsection (i) or (ii) of this Section 2.04(f), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivables shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables;
(iv) if and to the extent the Agent, the Investors or the Banks shall be required for any reason to pay over to an Obligor 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 Agent, the Investors or the Banks, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(g) Within one Business Day after the end of each Fixed Period in respect of which Yield is computed by reference to the Investor Rate, the Agent shall furnish the Seller with an invoice setting forth the amount of the accrued and unpaid Yield and Fees for such Fixed Period with respect to the Receivable Interests held by the Investors and the Banks.
(h) All amounts payable by the Seller or the Servicer under this Agreement to the Agent for its own account or for the account of the Investor or the Banks shall be paid in Dollars. The purchase price for Receivable Interests and all other amounts payable by the Investor or the Banks under this Agreement shall be payable in Dollars.
Appears in 1 contract
Sources: Receivables Purchase Agreement (AbitibiBowater Inc.)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers Secured Parties (and shallor, if so requested by the Administrative Agent at the request any time that an Event of the AdministratorTermination shall have occurred that has not been waived in accordance with this Agreement, segregate in a separate account approved designated by the Administrator) a portion 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 Lock-Box 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 that, together the amount (if any) to be applied to pay the purchase price for Receivables purchased by the Seller on such date in accordance with the other terms of the Purchase and Sale Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) shall, distribute such Collections set aside pursuant in the following order of priority:
(i) first, to this paragraphthe Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Yield Period (plus, shall equal if applicable, the amount necessary of Servicing Fees payable for any prior Yield Period to reduce the Purchased Interest extent such amount has not been distributed to 100%the Servicer);
(ii) second, which amount shall be deposited ratably to each Purchaser Agent’s account and other Purchaser Party (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) ratably, based on the next Weekly Settlement Date in accordance with Section 1.4(camount then due and owing); provided, furtherall accrued and unpaid Yield, that if the Facility Termination Date has been extended pursuant Fees and Breakage Fees due to Section 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust for the benefit of such Purchaser and applied 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 accordance with clause respect of such payments), 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;
(iii) third, as set forth in clause (x), (y) or (z) below;, as applicable:
Appears in 1 contract
Sources: Receivables Purchase Agreement (OUTFRONT Media Inc.)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold (or cause the Seller to set aside and hold) in trust (and shall, at the request of the Administrator, segregate in a separate account approved by in the name of the Seller held at the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) first, to the extent of such Collections, an amount equal to the Servicing Fee accrued through such day and not previously paid or set aside, second, to the extent of such Collections as reduced by any allocations pursuant to clause first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously paid or set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such daythird, and (z) to the extent funds are available thereforof such Collections as reduced by any allocations pursuant to clauses first and second, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee Fees accrued and unpaid through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)Rights; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestremit such remainder to the Seller or reinvest it, but shall set aside and hold (or cause the Seller to set aside and hold) in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraphclause (ii), shall equal the amount necessary to reduce the Purchased Interest to 100%% (determined as if such Collections set aside had been applied to reduce the Aggregate Capital and to cash collateralize the LC Participation Amount at such time), which amount shall be deposited first, ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective CapitalPurchasers) on the next Weekly Settlement Date in accordance with Section 1.4(c); and second, to the LC Collateral Account; provided, further, that if if, as of any date following the Facility Termination Date has date on which any amounts have been extended set aside due to a shortfall pursuant to Section 1.11 the immediately preceding proviso (such amount, a “Purchased Interest Shortfall”) but prior to the Settlement Date on which such amounts are to be remitted to each Purchaser Agent’s Account or the LC Collateral Account, the Purchased Interest Shortfall is reduced (without giving effect to any funds set aside pursuant to such proviso), the Servicer shall remit to the Seller from amounts set aside pursuant to such proviso, an amount equal to the lesser of (1) the amount so set aside during the current Calculation Period, and (2) an amount necessary to reduce the Purchased Interest to 100%, promptly following notice to the Administrator including reasonable supporting information; provided, further, that in the case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.111.22, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then ), then, such Collections shall not be Reinvested reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below,
(iii) if such day is a Termination Day (or a day on which the Commitment of an Exiting Purchaser terminates), set aside and hold (or cause the Seller to set aside and hold) in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of such Collections (or, in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Capital; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Capital shall be deemed to remain constant from the day on which the Commitment of such Exiting Purchaser terminates, until the date such Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated); provided, further, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day on which the Commitment of such Exiting Purchaser terminates) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and the Majority Purchaser Agents (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Capital (or the Capital of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Capital, be reinvested in accordance with clause (ii) above on the day of such subsequent satisfaction or waiver of conditions or revocation of Exiting Notice, as the case may be, and
(iv) subject to Section 1.4(f), release to the Seller for its own account any Collections in excess of: (x) the amounts that are required to be set aside or reinvested pursuant to clauses (i), (ii) and (iii) above plus (y) all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the LC Bank, the Administrator and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d) below, deposit into each applicable Purchaser Agent’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date (for any Portion of Capital), Collections held for each Purchaser pursuant to Sections 1.4(b)(i), (ii) and (iii) and Section 1.4(f); provided, that if VWR or an Affiliate thereof is the Servicer, VWR (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the Servicing Fee. On or prior to the last day of each Calculation Period, each Purchaser Agent will notify the Servicer by email communications or other electronic delivery of the amount of Discount accrued with respect to its Portion of Capital during such Calculation Period or portion thereof.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), in each case, to the extent of funds available therefor, as follows:
(i) if such distribution occurs on a day that is not a Termination Day, that is not a day on which the Commitment of an Exiting Purchaser terminates and on which the Purchased Interest does not exceed 100%, first if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to Section 1.4(b)(i) and has not retained such amounts pursuant to Section 1.4(c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the accrued and unpaid Servicing Fees so set aside, and second, to each Purchaser Agent ratably (based on the Discount and Fees accrued during such Yield Period) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and Fees with respect to each Portion of Capital maintained by the Purchasers within such Purchaser Agent’s Purchaser Group; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and Fees, and
(ii) if such distribution occurs on a Termination Day, on a day on which the Commitment of an Exiting Purchaser terminates or on a day when the Purchased Interest exceeds 100%, first to the Servicer’s own account in payment in full of all accrued and unpaid Servicing Fees, second to each Purchaser Agent ratably (based on the Discount and Fees accrued during such Yield Period) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and Fees with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third to each Purchaser Agent ratably (based on the aggregate of the Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of (x) if such day is a Termination Day, each Purchaser’s Capital, (y) if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%, or (z) if such day is a day on which the Commitment of an Exiting Purchaser terminates, an amount equal to the Exiting Purchaser’s ratable share of the Collections set aside pursuant to Section 1.4(b)(iii) based on its Capital (determined as if such Collections had been applied to reduce the Aggregate Capital); it being understood that each Purchaser Agent shall distribute the amounts described in the second and third clauses of this clause (ii) to the Purchasers within its Purchaser Group ratably (based on Discount and Fees and Capital, respectively), fourth, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants, the amount necessary to cash collateralize the LC Participation Amount until the amount of cash collateral held in such LC Collateral Account equals (A) the amount necessary to reduce the Adjusted LC Participation Amount to zero ($0 and/or €0, as applicable) and (B) an amount equal to the LC Fee Expectation and fifth, if the Aggregate Capital and accrued Aggregate Discount with respect to each Portion of Capital for all Purchaser Groups have been reduced to zero, the Fees have been paid in full and all accrued Servicing Fees payable to the Servicer have been paid in full, to each Purchaser Group ratably (based on the amounts payable to each) (for the benefit of the Purchasers within such Purchaser Group), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital (on any day when the Purchased Interest exceeds 100% or any day on which the Commitment of an Exiting Purchaser terminates), Aggregate Discount, Fees and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder have been paid in full, and (on and after a Termination Day) after Aggregate Capital and an amount equal to (A) the amount necessary to reduce the Adjusted LC Participation Amount to zero ($0 and/or €0, as applicable) and (B) an amount equal to the LC Fee Expectation has been deposited in the LC Collateral Account, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and shall, subject to Section 1.4(e)(v), immediately pay any and all such amounts in respect thereof to a Collection Account for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4(b);
(ii) if on any day any of the representations or warranties in Sections 1(j) or 3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of the full Outstanding Balance of such Pool Receivable and shall, subject to Section 1.4(e)(v), immediately pay any and all such amounts in respect thereof to a Collection Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4(b) (Collections deemed to have been received pursuant to Sections 1.4(e)(i) or (ii) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) except as provided in Sections 1.4(e)(i) or (ii) or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor specified an applicable Receivable;
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof; and
(v) if at any time before the Facility Termination Date the Seller is deemed to have received any Deemed Collection under Sections 1.4(e)(i) and (ii), so long as no Termination Day then exists, the Seller may satisfy its obligation to deliver the amount of such Deemed Collections to a Collection Account by instead recalculating (or being deemed to have recalculated) the Purchased Interest by decreasing the Net Receivables Pool Balance by the amount of such Deemed Collections, so long as such adjustment does not cause the Purchased Interest to exceed 100%.
(f) If at any time the Seller wishes to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex E (each, a “Paydown Notice”) at least two (2) Business Days prior to the date of such reduction, and each such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Seller shall set aside (or cause to be set aside) and hold such Collections in trust for the benefit of each Purchaser ratably according to its Capital, for payment to each such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) on the date specified in the Paydown Notice (or such other date as agreed to by the Administrator) with respect to any Porti
Appears in 1 contract
Settlement Procedures. (a) The collection Collection of the Pool Receivables shall be administered by the Servicer Servicers in accordance with the terms of this Agreement. The Seller shall provide to the Servicer Servicers on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased InterestAssets Coverage Percentage.
(b) The Each Applicable Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or a Servicer, transfer (or cause to be transferred) such Collections from the ServicerLock-Box Accounts and deposit (or cause to be deposited) such Collections into a Collection Account, except as otherwise permitted pursuant to Section 4.3(a). With respect to all Collections on deposit in the Collection Accounts on such day, the Servicers shall:
(i) set aside and hold maintain in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) Collection Accounts for the benefit of each the Purchaser Group(and, in the case of clause fourth below, the other applicable Purchaser Parties, subject to their right to receive such amounts solely in accordance with the priorities for payment set forth in Section 1.6(d) below), out of such Collections, (x) first an amount equal to the Aggregate all Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter sum of the Used Fees, Unused Fees and Breakage Costs accrued and unpaid through such dayday and not previously set aside, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside and fourth, to the extent funds are available therefor, any other amounts (other than return of Capital) owed to any Purchaser Party pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4 and not previously set aside;
(ii) subject to Section 1.4(f1.6(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Purchaser, the remainder of such Collections. Such remainder shall, (x) to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s of Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections Purchased Assets and other proceeds with respect thereto and (each such reinvestmenty) to the extent not representing a return of Capital, a “Reinvestment,” and “Reinvest” shall have be paid (on behalf of the correlative meaning)Purchaser) to the Seller in respect of the Deferred Purchase Price for the Purchased Assets; provided, however, that if if, after giving effect to such Reinvestment, the Purchased Interest Assets Coverage Percentage would exceed 100%, then the Servicer shall not Reinvest, but Servicers shall set aside and hold maintain in trust the Collection Accounts for the benefit of the Purchasers Purchaser in accordance with clause (and shall, at iii) below the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such remaining Collections that, together with the any other Collections set aside pursuant to this paragraphclause (ii), shall equal equals the amount necessary to reduce the Purchased Interest Assets Coverage Percentage to 100% (or, if all such remaining Collections are not sufficient to reduce the Purchased Assets Coverage Percentage to 100%, which amount then all such remaining Collections shall be deposited ratably to each Purchaser Agent’s account (so set aside for the benefit of the Purchaser), rather than remitting all of such remaining Collections to the Seller for Reinvestment or for payment of the Deferred Purchase Price;
(iii) if such day is a Termination Day, set aside and maintain in the Collection Account for the benefit of the Purchaser Parties the entire remainder of such Collections; and
(iv) subject to Section 1.6(f), pay to the Seller (on behalf of the Purchaser) for the Seller’s own accounts and in payment of the Deferred Purchase Price for the Purchased Assets, any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) above, plus (y) the amounts that are required to be set aside pursuant to clause (i) above, pursuant to the proviso to clause (ii) above and pursuant to clause (iii) above, plus (z) all reasonable and appropriate out-of-pocket costs and expenses of the Servicers for servicing, collecting and administering the Pool Receivables.
(c) On each Settlement Date, each Applicable Servicer shall (i) deposit into the applicable Purchaser’s Account (or such other account designated by the Agent) all Collections held on deposit in each Collection Account for the benefit of the Purchaser Parties pursuant to Section 1.6(b) and Section 1.6(f) and (ii) deposit to each Servicer’s own account, from Collections held on deposit in the Collection Account pursuant to clause third of Section 1.6(b)(i) in respect of the accrued Servicing Fee, an amount equal to such Servicer’s portion of such accrued Servicing Fee; provided, however, that no amounts shall be payable to Garland under clause (ii) above.
(d) Upon receipt of funds deposited into any of the Purchaser’s Accounts pursuant to Section 1.6(c), the Agent shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day, such funds shall be distributed in the following order of priority: first to the Purchaser in payment in full of all unpaid Discount accrued during the most recently ended Discount Accrual Period, second to the Purchaser in payment in full of all unpaid Used Fees, Unused Fees and Breakage Costs accrued during the most recently ended Discount Accrual Period, third to the Purchaser in payment of outstanding Capital (and accrued Discount thereon) to the extent that funds have been set aside for such purpose pursuant to Section 1.6(f), fourth to the Purchaser, the Agent and any other Purchaser Party in payment in full of any other amounts owed thereto pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4 and fifth, any remaining amounts shall be paid to the Purchaser in payment of outstanding Capital; and
(ii) if such distribution occurs on a Termination Day, such funds shall be distributed in the following order of priority: first to the Purchaser in payment in full of all accrued and unpaid Discount, second to the Purchaser in payment in full of all accrued and unpaid Used Fees, Unused Fees and Breakage Costs, third to the Purchaser in payment in full of all outstanding Capital, and fourth to the Purchaser, the Agent and any other Purchaser Party in payment in full of any other amounts owed thereto by the Seller or any Servicer hereunder (including, without limitation, pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4) or under any other Transaction Document. After the occurrence of the Final Payout Date, all additional Collections with respect to the Purchased Assets shall be paid to the Seller for its related Purchasers own accounts in payment of the Deferred Purchase Price for the Purchased Assets.
(e) For the purposes of this Section 1.6:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, damaged, rejected, returned, repossessed or foreclosed goods or services, or any discount, rebate, credit, counterclaim, billing error or other adjustment made by the Seller, any Originator or any Servicer, or any setoff or dispute between the Seller, any Originator or any Servicer and any Obligor, the Seller of such Pool Receivable shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in paragraphs (e), (f) or (k) of Section 1 of Exhibit III is not true with respect to any Pool Receivable, the Seller of such Pool Receivable shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) If an Obligor makes a payment but does not designate the Receivable to which such payment applies, then the Applicable Servicer shall contact such Obligor promptly in order to determine to which Receivable such payment relates; provided, that if the Obligor does not direct the Applicable Servicer to apply such payment to a particular Receivable or Receivables within thirty (30) days after such payment has been received in a Lock-Box Account or by the Applicable Servicer, then, except as otherwise required by applicable law or the relevant Contract, such payment shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable; and
(iv) if and to the extent the Agent, the Purchaser or any other Indemnified Party shall be applied required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller of the relevant Pool Receivable and, accordingly, the Agent or the Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of their respective the Aggregate Capital (in whole or in part), the Seller may do so as follows:
(i) the Seller shall give the Agent at least (x) one (1) Business Day’s prior written notice thereof in the case of any reduction of the aggregate U.S. Capital or (y) one (1) Business Day’s prior written notice in the case of any reduction of the aggregate CAD Capital, EUR Capital or GBP Capital, in either case, in the form of Annex C (each, a “Paydown Notice”) setting forth the proposed amount of such reduction, the proposed date on which such reduction will commence (the “Paydown Date”) and the Approved Currency of the Capital to be reduced;
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections in the applicable Approved Currency with respect to the Capital or portion thereof to be reduced (including to any related Discount) not to be reinvested or used to pay the Deferred Purchase Price until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Applicable Servicer shall hold such Collections in a Collection Account for the benefit of the Purchaser, for payment to the Purchaser’s Account on the next Weekly Settlement Date (and in the case of a reduction of the entire Investment, the Servicers shall hold in the Collection Accounts for payment on such date an amount equal to all other obligations of the Seller or Servicers to the Purchaser, the Agent and each other Purchaser Party hereunder) in accordance with Section 1.4(c1.6(c), and the Aggregate Capital shall be deemed reduced in the amount to be paid to the Purchaser’s Account only when in fact finally so paid; provided that, the amount of any such reduction shall be not less than (A) one million U.S. Dollars ($1,000,000) or an integral multiple of one hundred thousand Dollars ($100,000) in excess thereof for reductions of U.S. Capital, (B) one million Euros (€1,000,000) or an integral multiple of one hundred thousand Euros (€100,000) in excess thereof for reductions of Euro Capital, (C) one million Canadian Dollars (CAD 1,000,000) or an integral multiple of one hundred thousand Canadian Dollars (CAD 100,000) in excess thereof for reductions of CAD Capital, and (D) one million GBP (£1,000,000) or an integral multiple of one hundred thousand GBP (£100,000) in excess thereof for reductions of GBP Capital, in each case, unless the aggregate U.S. Capital, Euro Capital, CAD Capital or GBP Capital, as applicable, shall have been reduced to zero; provided, further, that if unless the Facility Termination Date has been extended pursuant to Section 1.11 and any Purchaser (information set forth in such Paydown Notice is also delivered through Agent’s electronic platform or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administratorportal, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections Paydown Notice shall not be Reinvested effective and the commencement of the reduction of the Aggregate Capital shall instead not occur until the Agent shall have received such information from the Seller reasonably requested by the Agent to complete its authentication process with respect to such Paydown Notice and the results of the Agent’s authentication process shall be held satisfactory to the Agent in trust for its sole discretion, as notified by the benefit of such Purchaser and applied Agent to the Seller in accordance with clause (iii) below;writing.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Manitowoc Foodservice, Inc.)
Settlement Procedures. (a) The collection So long as the Administrative Agent has not taken dominion and control of the Pool Receivables shall be administered by Collection Accounts, the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the Administrative Agent, for the benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request of the AdministratorAdministrative Agent, segregate in a separate account approved designated by the AdministratorAdministrative 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 Lock-Box or Collection Account; provided, however, (A) if the Administrative Agent has not taken dominion of the Collection Accounts, that so long as each of the conditions precedent set forth in Section 5.03 are satisfied on such date, the Servicer may (x) 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 First Tier Transfer Agreement and (y) release to the Seller all or a portion of such Collections that, together with received on Sold Assets in exchange for the other Collections set aside 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 this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%Section 2.01(e), which amount shall new Sold Receivables will be deposited ratably automatically and immediately sold by the Seller to each Purchaser Agent’s account the Administrative Agent (for the ratable benefit of its related Purchasers the Purchasers) pursuant to Section 2.01(b) upon such release (each such release of Collections described in clauses (x) and to (y) above, a “Release”) and (B) if the Administrative Agent has taken dominion of the Collection Accounts in accordance with the terms of this Agreement, any such Release shall be applied in reduction of their respective Capital) on the next Weekly Settlement Date made only in accordance with Section 1.4(c8.03(c); provided. On each Settlement Date, furtherthe Servicer (or, that if following its assumption of control of the Facility Termination Date has been extended pursuant to Section 1.11 and any Purchaser (or its Purchaser Collection Accounts, the Administrative Agent) has provided notice shall distribute such Collections in the following order of priority: (an “Exiting Notice”i) first, to the AdministratorServicer for the payment of all unpaid Servicing Fees accrued up to (but not including) such Settlement Date; (ii) second, to each Purchaser and other Purchaser Party (ratably, based on the Seller amount then due and the Servicer of owing), (w) all unpaid Yield accrued on such Purchaser’s refusalCapital up to (but not including) such Settlement Date, pursuant (x) all unpaid Fees accrued up to (but not including) such Settlement Date, (y) any indemnity payments under Section 1.11, 4.02 due to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust for the benefit of such Purchaser and applied other Purchaser Party, and (z) any additional amounts or indemnified amounts payable under Sections 4.03 and 11.01 in accordance with clause 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 Termination Date, to the extent that a Capital Coverage Amount Deficit exists on such date, 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
Appears in 1 contract
Sources: Receivables Purchase Agreement (Rackspace Technology, Inc.)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers Secured Parties (or, if so requested by the Administrative Agent after the occurrence and shall, at during the request continuance of the Administratoran Event of Default or Unmatured Event of Default, segregate in a separate account approved by the Administrator) a portion of such Collections thatAdministrative Agent), together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date application in accordance with Section 1.4(c)the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Borrower or received in any Lock-Box or Lock-Box Account; provided that, each party hereto acknowledges and agrees that so long as no Event of Default or Unmatured Event of Default has occurred and is continuing, prior to the applicable Settlement Date such Collections on Pool Receivables may be commingled by the Servicer or an Affiliate of the Servicer with funds of the Servicer and its Affiliates; provided, further, that if no such commingling shall derogate from the Facility Termination Date has been extended pursuant Servicer’s obligations hereunder to Section 1.11 and any Purchaser distribute such Collections in the order of priority set forth below. On each Settlement Date, the Servicer (or or, following its Purchaser assumption of control of the Lock-Box Accounts, the Administrative Agent) has provided notice shall, distribute such Collections in the following order of priority:
(an “Exiting Notice”i) first, to the AdministratorServicer for the payment of the accrued Servicing Fees payable for the immediately preceding Interest Period (plus, if applicable, the Seller 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 Servicer 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 5.03 and 13.01 in respect of such Purchaser’s refusalpayments), pursuant to Section 1.11plus, to extend its if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested indemnified amounts payable under Sections 5.03 and shall instead be held 13.01 in trust for the benefit respect of such Purchaser and applied in accordance with clause payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (x), (y) or (z) below;, as applicable:
Appears in 1 contract
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this AgreementAgreement and applicable regulatory law. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, be automatically reinvested ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if after giving effect to such reinvestment, (x) the Purchased Interest would exceed 100%% or (y) the sum of the Aggregate Capital plus the LC Participation Amount would exceed the Purchase Limit then in effect, then the Servicer shall not Reinvestreinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%% or cause the sum of the Aggregate Capital plus the LC Participation 782009308 25792734 Amount not to exceed the Purchase Limit, as the case may be, which amount shall either (x) be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to Purchasers) or (y) be applied deposited in reduction of their respective Capital) the LC Collateral Account, as applicable, on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if (x) in the Facility Termination Date has been extended pursuant to Section 1.11 and case of any Purchaser (or its that is a Conduit Purchaser, if such Conduit Purchaser Agent) has provided notice (an a “Exiting Declining Notice”) to its Purchaser Agent, the Administrator, the Seller and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser’s refusal, Conduit Purchaser to be reinvested pursuant to Section 1.11this clause (ii), and (y) in the case of any Purchaser with respect to extend its (or its related Committed Purchaser’s) Commitment hereunder which the Purchaser Termination Date has occurred (an “Exiting Purchaser”) then in either case (x) or (y), above, such Collections shall not be Reinvested reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii), below.
(iii) if such day is a Termination Day (or any day following the provision of a Declining Notice or the occurrence of the Purchaser Termination Date with respect to any Purchaser), set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser an amount equal to such Declining Conduit Purchaser’s or Exiting Purchaser’s ratable share of such Collections based on its Capital; provided, that solely for the purpose of determining such Declining Conduit Purchaser’s or Exiting Purchaser’s ratable share of such Collections, such Declining Conduit Purchaser’s or Exiting Purchaser’s Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or the occurrence of the Purchaser Termination Date with respect to such Purchaser, as the case may be, until the date such Declining Conduit Purchaser’s or Exiting Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Declining Conduit Purchaser’s or Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day (or any day following the provision of a Declining Notice or the occurrence of the Purchaser Termination Date with respect to any Purchaser) and, thereafter, the conditions set forth in Section 2 of Exhibit II or giving rise to the related Facility Termination Date are satisfied or cured or waived by the Majority Purchaser Agents (or in the case of a Declining Notice or the occurrence of the Purchaser Termination Date with respect to any Purchaser, such Declining Notice or occurrence of the Purchaser Termination Date with respect to such Purchaser, as the case may be, has been revoked by the related Declining Conduit Purchaser or waived by the related Exiting Purchaser, as the case may be, and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Capital (or the Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably in accordance with each Purchaser’s Capital, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction, cure or waiver of conditions or revocation of Declining Notice or waiver of such Purchaser Termination Date, as the case may be, and 782009308 25792734
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess, if any, of: (w) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (x) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (y) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables plus (z) all other amounts then due and payable by the Seller under this Agreement (as notified to the Servicer by the Administrator) to the Purchasers, the LC Participants, the Purchaser Agents, the Administrator and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into each applicable Purchaser Agent’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date in the case of Collections held for each Purchaser with respect to such Purchaser’s Portion(s) of Capital pursuant to clause (b)(i) or paragraph (f), plus the amount of Collections then held for the related Purchasers pursuant to clauses (b)(ii) and (iii) of this Section 1.4; provided, that if Triumph or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified Triumph (or such Affiliate) that such right is revoked, Triumph (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the aggregate Purchasers’ Share of the Servicing Fee.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day:
(1) first, to each Purchaser Agent ratably according to the Discount accrued during the Yield Period ending on the Settlement Date on which such Discount is distributed (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued and unpaid Discount and Fees (other than Servicing Fees) with respect to each Portion of Capital maintained by such Purchasers, and
(2) second, if the Servicer has set aside amounts in respect of the Purchasers’ Share of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to paragraph (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day:
(1) first, if Triumph or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of the Purchasers’ Share of all accrued Servicing Fees,
(2) second, to each Purchaser Agent ratably (based on the aggregate accrued and unpaid Discount and Fees (other than Servicing Fees) payable to all 782009308 25792734 Purchasers at such time) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and Fees with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group,
(3) third, to each Purchaser Agent ratably according to the aggregate of the Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Capital,
(4) fourth, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants (x) the amount necessary to cash collateralize the LC Participation Amount until the amount of cash collateral held in such LC Collateral Account (other than amount representing LC Fee Expectation) equals 100% of the LC Participation Amount (determined as if such Collections had been applied to reduce the aggregate outstanding amount of the LC Participation Amount) and (y) an amount equal to the LC Fee Expectation at such time (or such portion thereof not currently on deposit in the LC Collateral Account);
(5) fifth, if the Aggregate Capital and accrued Aggregate Discount with respect to each Portion of Capital for all Purchaser Groups have been reduced to zero, and the Purchasers’ Share of all accrued Servicing Fees payable to the Servicer (if other than Triumph or an Affiliate thereof) have been paid in full, to each Purchaser Group ratably, based on the amounts then due and payable to each (for the benefit of the Purchasers within such Purchaser Group), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts then due and payable thereto by the Seller or Servicer hereunder, and
(6) sixth, to the Servicer’s own account (if the Servicer is Triumph or an Affiliate thereof) in payment in full of the aggregate of the Purchasers’ Share of all accrued Servicing Fees. Each Purchaser Agent, upon its receipt of any such payments or distributions, shall distribute such amounts to the applicable Purchasers within its Purchaser Group ratably; provided that if such Purchaser Agent shall have received insufficient funds to pay all of the above amounts in full on any such date, such Purchaser Agent shall pay such amounts to the applicable Purchasers within its Purchaser Group in accordance with the priority of payments 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 Purchaser Group) among all such Persons in such Purchaser Group entitled to payment thereof. After the Aggregate Capital, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, and after an amount equal to 100% of the LC Participation Amount and the LC Fee Expectation has been deposited in the LC Collateral Account, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. 782009308 25792734
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and shall immediately pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of the Purchasers and their assigns and for application pursuant to this Section 1.4;
(ii) if on any day any of the representations or warranties in Sections 1(j) or 3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full and shall immediately pay any and all such amounts to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to this Section 1.4 (Collections deemed to have been received pursuant to clause (i) or (ii) of this paragraph (e) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) except as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex E (each, a “Paydown Notice”) (which notice must be received by the Administrator and each Purchaser Agent before 2:00 p.m., New York City time) (A) at least one Business Day prior to the date of such reduction for any reduction of the Aggregate Capital less than or equal to $20,000,000 (or such greater amount as agreed to by the Administrator and the Majority Purchaser Agents) and (B) at least five Business Days prior to the date of such reduction for any reduction of the 782009308 25792734 Aggregate Capital greater than $20,000,000, and each such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) on the proposed date of the commencement of such reduction and on each da
Appears in 1 contract
Settlement Procedures. The parties hereto will take the following actions with respect to each Settlement Date:
(a) The collection By no later than the fifth (5th) Business Day prior to each Settlement Date and on the Closing Date (each a “Reporting Date” for and related to the Settlement Period ending immediately prior to such date and, to the extent required in clause (b) below, the Interest Period ending immediately prior to such Settlement Date), the Servicer shall deliver to the Collateral Agent and the Administrative Agent, which the Administrative Agent shall, upon receipt, forward to each Group Agent, an e-mail attaching an Excel file and a file in .pdf or similar format signed by a Responsible Officer of the Servicer containing the information described in Exhibit D, including the information calculated by the Servicer pursuant to this Section 3.01 (each, an “Information Package”) for and related to the Settlement Period ending immediately prior to such Reporting Date; provided, that the loan level data tape set forth in Exhibit D shall only be required to be provided in connection with the Settlement Dates occurring in March, June, September and December, and upon request thereof by Mizuho, within ten (10) Business Days of such request; provided further, that during the continuance of an Unmatured Event of Termination or Event of Termination, the Administrative Agent may (or at the request of the Required Lenders shall) request, in its reasonable discretion, the Servicer to, and the Servicer agrees to, deliver any information related to the Pool Receivables and Related Assets, or the transactions contemplated hereby as the Administrative Agent or the Required Lenders shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on request (including a timely basis all information needed for such administration, including notice calculation of the occurrence of any Termination Day Net Portfolio Balance, the Required Reserves, the Borrowing Base and current computations of each component or subcomponent thereof (including as determined on dates other than as set forth therein), the Purchased Interestdaily Collections, etc.) on each Business Day.
(b) On or before the second (2nd) Business Day prior to each Reporting Date, each Group Agent shall notify the Administrative Agent and the Servicer of (i) the amount of Interest accrued in respect of each related Rate Tranche funded by the Lenders in each Group for each day during the most recently ended Settlement Period, and (ii) all Fees accrued each day during the most recently ended Settlement Period, and (iii) all other amounts payable or to be paid by the Borrower under this Agreement and the other Transaction Documents on the immediately succeeding Settlement Date (other than amounts described in clause (c) below) to such Group Agent or any Lender in, or Affected Person related to, any Group. Such Interest, Fees and other amounts accrued in respect of such immediately preceding Settlement Period or Interest Period, as applicable, shall be due and payable by the Borrower on the next succeeding Settlement Date.
(c) On each Reporting Date, the Servicer shall include in the Information Package, calculations, as of the most recent Cut-off Date for the related Settlement Period, the following:
(i) without taking into account any Receivables included in any Transfers following such Cut-off Date, (A) the Unpaid Balance and Financed Unpaid Balance of each of the Pool Receivables, the Aggregate Principal, the aggregate Principal of each Group, the Required Reserves, the Net Portfolio Balance, the Borrowing Base and each component of each of the foregoing, (B) the amount of the reduction or increase (if any) in each of the Required Reserves, the Net Portfolio Balance, the Borrowing Base, the Aggregate Principal and the aggregate Principal of each Group since the Cut-off Date immediately preceding the Cut-off Date for the most recently ended Settlement Period, and each component of each of the foregoing (including a breakdown of Collections and Deemed Collections and any related Dilutions or other reductions, if any, during such Settlement Period), (C) the excess (if any) of the Aggregate Principal over the Borrowing Base, (D) the excess (if any) of the Aggregate Principal, over the Facility Limit, (E) the excess (if any) of the aggregate Principal of each Group, over the Group Loan Limit of each such Group, (F) the aggregate Principal of any Exiting Lenders, (G) the Pool Deficiency Amount (if any), (H) the total Deemed Collections for such Settlement Period, (I) the amount of all other Obligations payable on the next Settlement Date, (J) the Excess Concentration Amount, (K) the Pool Receivables (and the aggregate Financed Unpaid Balance thereof) that are subject to the Conditional Service Guaranty and have been originated within the six (6) months prior to such Reporting Date, and (L) the amount of Monthly Collections;
(ii) the information specified in clause (i) above as determined (including on a pro forma basis, as applicable) based on Financed Unpaid Balances as of the Cut-off Date, after giving effect to all Transfers effected since the most recent Cut-off Date, including any such Transfers to be effected on or prior to the next Settlement Date;
(iii) the computation of the Collections available for allocation pursuant to each sub-sections (i) through (vii) of Section 3.01(d) on the next Settlement Date; and
(iv) the computation of the Loans, if any, to be funded by the Lenders on the next Settlement Date.
(d) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shallSettlement Date, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available thereforin the Payment Account, transfer to the Administrative Agent the Monthly Collections for the Administrative Agent to distribute for the following purposes and in the following order of priority as identified in the related Information Package:
(i) first, to the Servicer, all accrued then due and unpaid Servicing Fee;
(ii) second, to the Collateral Agent and the Administrative Agent in respect of all costs, expenses, Fees and Indemnified Amounts then due and payable to the Collateral Agent and the Administrative Agent (solely in their capacities as such) under this Agreement and the other Transaction Documents; provided, that the expenses and Indemnified Amounts payable under this clause (ii) on any Settlement Date shall not in the aggregate exceed $500,000;
(iii) third, on a pari passu basis, to each Group Agent ratably (based on the aggregate accrued and unpaid Interest and Fees due and payable to them and the members of their respective Groups) Interest accrued and unpaid on all Rate Tranches relating to the Receivable Pool for the Lenders in its Group howsoever funded or maintained during or prior to the most recently ended Settlement Period and to the accrued and unpaid Fees for its Group then due and payable;
(iv) fourth, to the Group Agents to the reduction of the Aggregate Principal (A) if clause (C) below does not apply, to reduce, to the extent necessary, the Pool Deficiency Amount to zero in the priority set forth in Section 3.01(e), ratably (based upon the respective amounts of reduction of Principal owed to each Group in respect of each application to the Lenders in each such Group Agent’s Group), determined without taking into account any Receivables to be acquired by the Borrower on such Settlement Date funded by Loans made on such Settlement Date, (B) if clause (C) below does not apply, in the amount required (without duplication of any amounts otherwise paid under this Section 3.01(d)) pursuant to an optional prepayment in accordance with Section 3.02(b), ratably (based upon their respective aggregate Principal), or (C) during the continuance of an Event of Termination or an Unmatured Event of Termination or following the Termination Date, ratably (based upon their respective aggregate Principal) to reduce the Aggregate Principal to zero; provided, that for the avoidance of doubt, any amounts paid to any Group Agent pursuant to this clause (iv) shall be applied in reduction of the Principal of the relevant Lenders in such Group Agent’s Group;
(v) fifth, to the Group Agents and the Lenders ratably (based on the aggregate accrued and unpaid Borrower Obligations owing) in respect of all costs, expenses and Indemnified Amounts due and payable to the Group Agents and the Lenders (solely in their capacities as such) under this Agreement and the other Transaction Documents;
(vi) sixth, ratably (based upon the amounts due and payable), to the Collateral Agent and the Administrative Agent in respect of expenses and Indemnified Amounts due and payable to the Collateral Agent and the Administrative Agent, to the extent such amounts were not paid pursuant to clause (ii) above,
(vii) seventh, to each Group Agent ratably (based on the aggregate accrued and unpaid Borrower Obligations owing to their respective Groups) all accrued and unpaid other Borrower Obligations due and payable to any Affected Persons in such Group Agent’s Group;
(viii) eighth, to the account bank(s) maintaining any Collection Account or Payment Account, any fees, returned item amounts or other amounts due and owing to such account bank(s) in respect of such accounts or the related Control Agreements that remain unpaid; and
(ix) ninth, to the Borrower, for its own account, any remaining amounts.
(e) The Administrative Agent shall apply Monthly Collections in the Payment Account which are available to reduce the Pool Deficiency Amount in accordance with clause (iv)(A) of Section 3.01(d) to the applicable Group Agents, pari passu based upon respective amounts owed to each Lender in the related Groups for each such specified applications in the following order: (i) first, to reduce the Aggregate Principal to an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through Borrowing Base at such day and not previously set aside;
time, (ii) subject to Section 1.4(f)second, if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest Aggregate Principal to 100%, which an amount shall be deposited ratably equal to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the AdministratorLimit, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;third, to reduce each Group’s aggregate Principal to an amount equal to the related Group Loan Limit, and (iv) fourth to reduce the aggregate Principal of all Exiting Lenders to zero.
Appears in 1 contract
Settlement Procedures. (a) The collection Notwithstanding any other provision of this Agreement, and in order to administer the Credit Facility in an efficient manner and to reduce the number of fund transfers between Lenders and Agent, Borrower, Lenders and Agent agree that Agent may (but shall not be obligated to), and Borrower and Lenders hereby irrevocably authorize the Agent to, fund, on behalf of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide Lenders, Loans pursuant to Section 3.1, subject to the Servicer on a timely basis all information needed procedures for such administrationsettlement set forth in this Section 3.11; PROVIDED, including notice THAT,(i) other than to fund Loans to make payments to the issuer of any of the occurrence Letter of any Termination Credit Accommodations or for costs and expenses as provided for herein, Agent shall in no event fund such Loans if the Agent shall have received written notice from the Majority Lenders on the Business Day and current computations prior to the day of the Purchased Interestproposed Loan that one or more of the conditions precedent contained in Section 4 will not be satisfied on the day of the proposed Loan, and (ii) Agent shall not otherwise be required to determine that, or take notice whether, the conditions precedent in Section 4 have been satisfied.
(b) With respect to all periods for which the Agent has funded Loans pursuant to Section 3.11(a) above, the amount of each Lender's Pro Rata Share in the outstanding Loans and Letter of Credit Accommodations shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Loans as of the close of business on the Business Day immediately preceding the date of each settlement computation; PROVIDED, THAT, Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly. Agent shall deliver to each of Lenders after the end of each week, or such lesser period or periods as Agent shall determine, a summary statement of the amount of outstanding Loans for such period (such week or lesser period or periods being hereinafter referred to as a "Settlement Period"). If the summary statement is sent by Agent and received by a Lender prior to 12:00 noon (New York City time) then such Lender shall make the settlement transfer described in this Section by no later than 2:00 p.m. (New York City time) on the day such summary statement was sent, and if such summary statement is sent by Agent and received by a Lender after 12:00 noon (New York City time), such Lender shall make such settlement transfer by no later than 2:00 p.m. (New York City time) on the next Business Day following the date of the receipt of such summary statement. If, as of the end of any Settlement Period, the amount of a Lender's Pro Rata Share of the outstanding Loans is more than such Lender's Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to Agent by wire transfer in immediately available funds the amount of the increase. If the amount of a Lender's Pro Rata Share of the outstanding Loans in any Settlement Period is less than the amount of such Lender's Pro Rata Share of the outstanding Loans for the previous Settlement Period, Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The Servicer shall, obligation of each of the Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by Agent. Each of Agent and Lenders agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Loans and Letter of Credit Accommodations. Each Lender shall only be entitled to receive interest on each day on its Pro Rata Share of the Loans which Collections of Pool Receivables are received (or deemed received) have been funded by the Seller or the Servicer:such Lender.
(ic) set aside To the extent that Agent has made any such amounts available and hold in trust (and shallthe settlement described above shall not yet have occurred, upon repayment of any Loans by Borrower, Agent may apply such amounts repaid directly to any amounts made available by Agent pursuant to this Section 3.11. In lieu of weekly or more frequent settlements, Agent may at the request any time require each Lender to provide Agent with immediately available funds representing its Pro Rata Share of the Administratoreach Loan, segregate in a separate account approved by the Administrator) prior to Agent's disbursement of such Loan to or for the benefit of each Purchaser GroupBorrower. In such event, out all Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in the other Lender's obligation to make a Loan requested hereunder nor shall the Commitment of such Collections, any Lender be increased or decreased as a result of the default by any other Lender in the other Lender's obligation to make a Loan requested hereunder.
(xd) an amount equal If Agent is not funding a particular Loan pursuant to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (ySection 3.11(a) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such above on any day, and (z) Agent may assume that each Lender will make available to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Agent such Lender's Pro Rata Share of the Servicing Fee accrued through Loan requested or otherwise made on such day and Agent may, in its discretion, but shall not previously set aside;be obligated to, cause a corresponding amount to be made available to Borrower on such day. If Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to Agent by such Lender, Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to Agent at the Interest Rate. During the period in which such Lender has not paid such corresponding amount to Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other Financing Agreements, the amount so advanced by Agent to Borrower shall, for all purposes hereof, be a Loan made by Agent for its own account. Upon any such failure by a Lender to pay Agent, Agent shall promptly thereafter notify Borrower of such failure and the Borrower shall immediately pay such corresponding amount to Agent for its own account.
(iie) subject Nothing in this Section 3.11 or otherwise in this Agreement or the other Financing Agreements shall be deemed to Section 1.4(f), if such day is not a Termination Day, remit require Agent to the Seller, ratably, advance funds on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, any Lender or to the extent representing a return on the Aggregate Capital, ratably, according relieve any Lender from its obligation to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of fulfill its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then or to prejudice any rights that Agent or Borrower may have against any Lender as a result of any default by such Collections shall not be Reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;Lender hereunder.
Appears in 1 contract
Sources: Loan and Security Agreement (Industrial Fuels Minerals Co)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Master Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request of the AdministratorAdministrative Agent, segregate in a separate account approved designated by the AdministratorAdministrative 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 Master 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 6.03 are satisfied on such date, (A) the Master Servicer may release to the Seller from such Collections received on Unsold Receivables 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 Sale Agreement and (B) the Master Servicer may release to the Seller all or a portion of such Collections that, together with received on Sold Receivables in exchange for the other Collections set aside 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 this paragraphSection 2.01(e), shall equal 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 Settlement Date, the Master Servicer (or, following its assumption of control of the Collection Accounts (to the extent that funds have not previously been released by the Administrative Agent to the Master Servicer), the Administrative Agent) shall, distribute such Collections in the following order of priority:
(i) first, to the Master Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Yield Period (plus, if applicable, the amount necessary of Servicing Fees payable for any prior Yield Period to reduce the Purchased Interest extent such amount has not been distributed to 100%the Master Servicer);
(ii) second, which amount shall be deposited ratably to each Purchaser Agent’s account and other Purchaser Party (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) ratably, based on the next Weekly Settlement Date in accordance with Section 1.4(camount then due and owing); provided, further, that if the Facility Termination Date has been extended pursuant all accrued and unpaid Yield and Fees due to Section 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust for the benefit of such Purchaser and applied 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 accordance with clause respect of such payments), plus, if applicable, the amount of any such Yield and 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;
(iii) third, as set forth in clause (x), (y) or (z) below;, as applicable:
Appears in 1 contract
Sources: Receivables Purchase Agreement (Ortho Clinical Diagnostics Holdings PLC)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased InterestAssets Coverage Percentage.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:, including pursuant to Section 1.6(g):
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Groupthe Purchasers, out of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter Fees accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f1.6(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, Seller the remainder of such Collections. Such remainder shall, (x) to the extent representing a return on of the Aggregate Capital, ratably, be automatically reinvested (ratably among the Purchasers according to each Purchaser’s Capital, be automatically reinvested ) in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto and (each such reinvestmenty) to the extent not representing a return of the Aggregate Capital, a “Reinvestment,” and “Reinvest” shall have be paid to the correlative meaning)Seller in respect of the Deferred Purchase Price for the Purchased Assets; provided, however, that if the Purchased Interest Assets Coverage Percentage would exceed 100%, then the Servicer shall not Reinvestreinvest or remit to the Seller, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest Assets Coverage Percentage to 100%% (determined as if such Collections set aside had been applied to reduce the Aggregate Capital or Aggregate Adjusted LC Participation Amount, as applicable, at such time), which amount shall either (A) be deposited ratably to each Purchaser Agent’s account the Administration Account (for the benefit of its related Purchasers and to the Purchasers) or (B) be applied deposited in reduction of their respective Capital) an LC Collateral Account, in each case, as applicable, on the next Weekly Settlement Date in accordance with Section 1.4(c1.6(c); provided, further, that if (x) in the Facility Termination Date has been extended pursuant to Section 1.11 and case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (or a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.111.12, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then in either case (x) or (y), above, such Purchaser’s ratable share (determined according to outstanding Capital) of such remaining Collections shall not be Reinvested reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with 745381243 05109795751949792 05109795 clause (iii) belowbelow (it being understood and agreed that the foregoing clause (x) shall not limit any obligation of a Committed Purchase in a Declining Conduit Purchaser’s Purchaser Group to make purchases and reinvestments hereunder),
(iii) if such day is a Termination Day (or any day following the provision of a Declining Notice or an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of the Purchasers the entire remainder of such Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser an amount equal to such Purchaser’s ratable share (determined according to outstanding Capital) of such Collections; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice, as the case may be, until the date such Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Declining Conduit Purchaser’s or Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated)); provided, further, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of a Declining Notice or an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and the Majority Purchaser Agents (or in the case of a Declining Notice or an Exiting Notice, such Declining Notice or Exiting Notice, as the case may be, has been revoked by the related Declining Conduit Purchaser or Exiting Purchaser, respectively and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return of Aggregate Capital (or the Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably (determined according to outstanding Capital), be reinvested and/or paid to the Seller in respect of the Deferred Purchase Price for the Purchased Assets in accordance with clause (ii) above on the day of such subsequent satisfaction or waiver of conditions or revocation of Declining Notice or Exiting Notice, as the case may be, and
(iv) subject to Section 1.6(f), pay to the Seller (on behalf of the Administrator and the Purchasers) for the Seller’s own account and in payment of the Deferred Purchase Price for the Purchased Assets any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) above or the last proviso to clause (iii) above, plus (y) the amounts that are required to be set aside pursuant to clause (i) above, the provisos to clause (ii) and clause (iii) above, plus (z) all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.6(d), deposit into the Administration Account (or such other account designated by the 745381243 05109795751949792 05109795 Administrator), on each Settlement Date (or, solely with respect to Collections held for the Purchasers pursuant to Section 1.6(f)(iii), such other date approved by the Administrator with at least five (5) Business Days prior written notice to the Administrator of such payment), Collections held for the Purchasers pursuant to Section 1.6(b)(i), (ii) or (iii) or 1.6(f); provided, that if Peabody or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified Peabody (or such Affiliate) that the right to retain the portion of Collections set aside pursuant to Section 1.6(b)(i) that represents the Servicing Fee is revoked, Peabody (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.6(b)(i) that represents the Servicing Fee in payment in full of the accrued Servicing Fees so set aside. On the last day of each Settlement Period, each Purchaser (or its Purchaser Agent on its behalf) will notify the Servicer by electronic mail of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c) above, the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day, on a day that the Purchased Assets Coverage Percentage does not exceed 100% and on a day that the sum of the Aggregate Capital plus the Aggregate LC Participation Amount does not exceed the Purchase Limit, first to the Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) in payment in full of all accrued Discount and Fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) above and has not retained such amounts pursuant to clause (c) above, to the Servicer (payable in arrears on each Settlement Date) in payment in full of the accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day, on a day when the Purchased Assets Coverage Percentage exceeds 100% or on a day when the sum of the Aggregate Capital plus the Aggregate LC Participation Amount exceeds the Purchase Limit, first to the Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) in payment in full of all accrued Discount and Fees, second to the Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Assets Coverage Percentage to 100% or the sum of the Aggregate Capital plus the Aggregate LC Participation Amount to the Purchase Limit, as applicable) (determined as if such Collections had been applied to reduce the aggregate outstanding Capital), third, to the LC Collateral Accounts for the benefit of the LC Bank and the LC Participants, (x) the amount (if any) necessary to cause the amount of cash collateral held in the LC Collateral Accounts (other than amounts representing LC Fee Expectation) to equal the aggregate outstanding amount of the Aggregate LC Participation Amount (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Assets Coverage Percentage to 100% or the sum of the Aggregate Capital plus the Aggregate LC Participation Amount to the Purchase Limit, as applicable) 745381243 05109795751949792 05109795 (determined as if such Collections had been applied to reduce the aggregate outstanding amount of the Aggregate LC Participation Amount) and (y) if such day is a Termination Day or a Termination Event is continuing, an amount equal to the LC Fee Expectation at such time (or such portion thereof not currently on deposit in the LC Collateral Accounts), fourth, to the Servicer in payment in full of all accrued Servicing Fees, fifth, if all amounts owing under clauses first through fourth above have been paid in full, to the Purchaser Agents (for the benefit of such Purchaser Agent and the Purchasers in their respective Purchaser Groups), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder, and sixth, after the occurrence of the Final Payout Date, all additional Collections with respect to the Purchased Assets shall be paid to the Seller for its own account in payment of the Deferred Purchase Price for such Purchased Assets.
(e) For the purposes of this Section 1.6:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and, if such reduction or adjustment (x) causes the Purchased Assets Coverage Percentage to exceed 100% or (y) occurs after the occurrence of the Facility Termination Date, the Seller shall pay an amount equal to such reduction or adjustment to a Lock-Box Account for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.6 within one Business Day of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section l(g) or (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full and, if such breach (x) causes the Purchased Assets Coverage Percentage to exceed 100% (determined on a pro forma basis after giving effect to such breach and subtraction of the Outstanding Balance of such Pool Receivables related to such breach from the Net Receivables Pool Balance) or (y) occurs after the occurrence of the Facility Termination Date, the Seller shall pay any and all such amounts in respect thereof to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.6 within one Business Day and, upon receipt of cash payments in full of the amounts specified in this clause (ii) in a Lock-Box Account, all right, title and interest of the Administrator, any Purchaser Agent or any Purchaser to the relevant Pool Receivable and Related Security shall pass to the Seller (or, to the extent such interest of the Administrator, any Purchaser Agent or any Purchaser is a beneficial interest in the relevant Pool Receivable and Related Security, shall be extinguished); provided, that any such reconveyance or release shall be without representation or warranty, but free and clear of all liens, security 745381243 05109795751949792 05109795 interests, charges, and encumbrances created by the Administrator, any Purchaser Agent or any Purchaser;
(iii) except as provided in clause (i) or (ii) above, or as otherwise required by Applicable Law or the relevant Contract, all Collections received from an Obligor (or Eligible Supporting Letter of Credit Provider or Credit Insurer, as applicable) of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator, such Purchaser Agent or such Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator, such Purchaser Agent or such Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex C (the “Paydown Notice”) at least two Business Days prior to the date of such reduction for any reduction of Aggregate Capital and such notice shall include the amount of such reduction and the proposed date on which such reduction shall commence;
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer sha
Appears in 1 contract
Sources: Receivables Purchase Agreement (Peabody Energy Corp)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed receivedreceived in accordance with Section 1.4(e)) by the Seller or Servicer, transfer such Collections into the ServicerCollection Account. With respect to such Collections on such day, the Servicer shall:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) Collection Account for the benefit of each Purchaser GroupBank, out of such CollectionsBank's Share of the percentage of such Collections represented by the Purchased Interest, (x) first an amount equal to such Bank's Share of the Aggregate Discount accrued through such day for each Portion of Capital of such Purchased Interest and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available thereforsecond, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee Fees payable to such Bank accrued through such day and not previously set aside;, and third, the Servicing Fee accrued through such day for the Purchased Interest and not previously set aside; and
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Banks, the remainder of the percentage of such Collections. Such remainder shallCollections represented by the Purchased Interest, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, ; such Collections shall be automatically reinvested in Pool Receivables, and in the Related Security, Security and Collections and other proceeds with respect thereto thereto, and the Purchased Interest shall be automatically recomputed pursuant to Section 1.3;
(iii) if such day is a Termination Day, (A) set aside and retain in the Collection Account for each Bank, the entire remainder of such reinvestmentBank's Share of the percentage of the Collections represented by the Purchased Interest; provided that, so long as the Facility Termination Date has not occurred, if any amounts are so set aside and retained in the Collection Account on any Termination Day and thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or are waived by the Agent and the Majority Banks, such previously set aside amounts shall, to the extent representing a “Reinvestment,” return on the Capital, be reinvested in accordance with the preceding paragraph (ii) on the day of such subsequent satisfaction or waiver of conditions, and “Reinvest” shall have (B) set aside and retain in the correlative meaning)Collection Account the Banks' Pro Rata Share of the entire remainder of the Collections in the Collection Account represented by the Seller's Share of the Collections, if any; provided, howeverthat so long as the Commitment Termination Date has not occurred, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall any amounts are so set aside and hold retained in trust the Collection Account on any Termination Day and thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or are waived by the Agent and the Majority Banks, such previously set aside amounts shall be distributed to the Seller on the day of such subsequent satisfaction or waiver of conditions; and
(iv) during such times as amounts are required to be reinvested in accordance with the foregoing paragraph (ii) or the proviso to paragraph (iii), release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of (x) such amounts, (y) the amounts that are required to be set aside and retained in the Collection Account pursuant to paragraph (i) above and (z) in the event ▇▇▇▇▇▇▇ (or any Affiliate of Warnaco) is not the Servicer, all reasonable and appropriate out-of-pocket costs and expenses of such Servicer of servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall deposit into an account designated by the Agent for the benefit of the Purchasers Banks, on each Settlement Date:
(and shall, at i) Collections held on deposit in the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account (Collection Account for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended each Bank pursuant to Section 1.11 1.4(b)(i) in respect of accrued Discount and any Purchaser accrued and unpaid Fees;
(or its Purchaser Agentii) has provided notice (an “Exiting Notice”) to Collections held on deposit in the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust Collection Account for the benefit of such Purchaser and applied in accordance with clause each Bank pursuant to Section 1.4(f); and
(iii) below;on any Termination Day, the lesser of (x) the sum of (i) the amount of Collections then held on deposit in the Collection Account for the benefit of each Bank pursuant to Section 1.4(b)(iii)(A) plus (ii) each Bank's Percentage of the amount of Collections then on deposit in the Collection Account in respect of the Seller's Share of Collections pursuant to Section 1.4(b)(iii)(B) and (y) the aggregate amount of Capital. The Servicer shall deposit to its own account from Collections held on deposit in the Collection Account pursuant to Section 1.4(b)(i) in respect of the accrued Servicing Fee, an amount equal to such accrued Servicing Fee.
Appears in 1 contract
Sources: Parallel Purchase Commitment (Warnaco Group Inc /De/)
Settlement Procedures. (a) The collection Collection of the Pool Receivables shall be administered by the Servicer a Collection Agent, in accordance with the terms of Article IV of this Agreement. The Collection Agent shall direct each Obligor to direct all payments of Collections (other than ROA Collections) into a Lock-Box Account, and the Collection Agent shall deposit all ROA Collections (other than Special Branch Collections) into a Blocked Account within two Business Days of its receipt thereof. The Seller shall provide to the Servicer Collection Agent (if other than United Rentals) on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Liquidation Day and current computations of each Receivable Interest in the Purchased InterestPool Receivables. The Seller may request the extension of the Facility Termination Date for an additional three hundred and sixty four (364) days from time to time by providing the Purchaser Agents with a written request for such extension no fewer than forty-five (45) days, but no more than sixty (60) days prior to the Facility Termination Date then in effect. The related Purchaser Agent shall provide written notice to each other Purchaser Agent and the Seller on or prior to the thirtieth (30th) day (the “Consent Date”) following the applicable Purchaser Agent’s actual receipt of such written request for extension of its desire to extend (any such Purchaser an “Extending Committed Purchaser”) or not to so extend (any such Purchaser a “Non-Extending Committed Purchaser”) such date. If Purchasers holding less than 100% of the aggregate Commitment of all Commitments consent to such extension, then the Seller may elect by written notice to the Purchaser Agents either to:
(i) continue this receivables financing facility for such additional period with an aggregate Commitment equal to the then effective aggregate Commitment less the Commitment of the Non-Extending Purchaser(s); or
(ii) require any such Non-Extending Purchaser(s) to execute an assignment (a “Purchaser Assignment”) with respect to all of such Non-Extending Purchaser(s)’ Commitment and their other interests, rights and obligations under this Agreement to a Purchaser who consents thereto (in its sole discretion at such time) and shall assume such obligations upon its consent to assume such obligations; provided that (x) no such assignment shall conflict with any law, (y) such assignment shall be at the Seller’s cost and expense, and (z) the purchase price to be paid to such Non-Extending Purchaser shall be an amount equal to the Capital and accrued and unpaid Yield and fees and payments pursuant to the applicable Fee Agreement attributable to such Non-Extending Purchaser. Notwithstanding anything in this Agreement to the contrary, such a transfer of a Non-Extending Purchaser’s interest pursuant to a Purchaser Assignment shall be subject to the consent of the Purchaser Agents (not to be unreasonably withheld).
(b) The Servicer Collection Agent shall, on each day on which Collections of Pool Receivables are received (or deemed received) received by it pursuant to this Agreement with respect to any Receivable Interest in the Seller or the ServicerPool Receivables:
(i) set aside and hold in trust (and shalland, at the request of the AdministratorAdministrative Agent, segregate in such amount into a separate account approved by the Administratorinto which no other funds are deposited) for the benefit of each Purchaser GroupInvestors or the Banks that hold such Receivable Interest in the Pool Receivables, out of the percentage of such Collections, (x) an amount equal Collections attributable to such Receivable Interest in the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available thereforPool Receivables, an amount equal to the aggregate of Yield, all fees and payments due pursuant to each Purchasers’ Share of the Servicing Fee Agreements, and the Collection Agent Fee accrued through such day for such Receivable Interest in the Pool Receivables and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Liquidation Day, remit to reinvest with the Seller, ratably, on behalf of each Purchaser Groupthe Investors or the Banks that hold such Receivable Interest in the Pool Receivables, the remainder of such percentage of Collections. Such remainder shall, to the extent representing a return on the Aggregate of Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and by recomputation of such Receivable Interest in the Related SecurityPool Receivables pursuant to Section 1.03;
(iii) if such day is a Liquidation Day, set aside and hold in trust the entire remainder of such percentage of Collections and for the Investors or the Banks that hold such Receivable Interest in the Pool Receivables (and, at the request of the Administrative Agent, segregate such amount into a separate account into which no other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaningfunds are deposited); provided, however, that if the Purchased Liquidation Day resulted solely by reason of the non-satisfaction of the initial purchase conditions (as set forth in paragraph 1 of Exhibit II) and such conditions are subsequently satisfied or are waived by the Purchaser Agents and written notice is provided to the rating agencies rating the Commercial Paper, any amounts that have been set aside and held in trust pursuant to this clause (iii) shall be reinvested in accordance with the preceding clause (ii), provided that, the Events of Termination identified as paragraphs (g) and (i) of Exhibit V cannot be waived by the Purchaser Agents; and
(iv) during such times as amounts are required to be reinvested in accordance with the foregoing clause (ii) or the proviso to clause (iii), release to the Seller for its own account any Collections in excess of such amounts and the amounts that are required to be set aside pursuant to clause (i) above.
(c) The Collection Agent shall deposit ratably according to the amount then owed to each Investor or Bank into each Purchaser Agents’ Account (i) on the first Business Date of each month, commencing in July 2005, Collections held for the Investors or Banks pursuant to Sections 1.04(b)(i) and (iii) in respect of fees and payments under the Fee Agreements and (ii) on the last day of each Settlement Period for a Receivable Interest would exceed 100%in the Pool Receivables, Collections held for the Investors or the Banks that relate to such Receivable Interest in the Pool Receivables pursuant to Section 1.04(b)(i) and (iii) (other than in respect of fees and payments owed under the Fee Agreements).
(d) Upon receipt of funds deposited into its Purchaser Agent’s Account, the related Purchaser Agent shall distribute them as follows:
(i) if such distribution occurs on a day that is not a Liquidation Day, first to the Investors or the Banks that hold the relevant Receivable Interest in the Pool Receivables, pro rata, in payment in full of all accrued Yield, all fees and payments due pursuant to each of the Fee Agreements, and second to the Collection Agent in payment in full of all accrued Collection Agent Fees; and
(ii) if such distribution occurs on a Liquidation Day, first to the Collection Agent if the Collection Agent is not United Rentals or an Affiliate of United Rentals, second to the Investors or the Banks that hold the relevant Receivable Interest in the Pool Receivables, pro rata, in payment in full of all accrued and unpaid Yield and all fees and payments due pursuant to each of the Fee Agreements, third to such Investors or Banks, pro rata, in reduction to zero of all Capital, fourth to such Investors or Banks or the Administrative Agent or the Purchaser Agents or any Indemnified Party or Affected Person, pro rata, in payment of any other amounts owed by the Seller hereunder, and fifth to the Collection Agent, if United Rentals or an Affiliate of United Rentals is the Collection Agent, in payment in full of all accrued and unpaid Collection Agent Fees. After the Capital and Yield and Collection Agent Fees with respect to a Receivable Interest in the Pool Receivables, and any other amounts payable by the Seller to the Investors, the Banks, the Administrative Agent or the Purchaser Agents hereunder, have been paid in full, all additional Collections with respect to such Receivable Interest in the Pool Receivables and any excess cash Collateral shall be paid to the Seller for its own account.
(e) For the purposes of this Agreement:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any Dilution, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in paragraph (h) or (e) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full; and
(iii) if and to the extent the Administrative Agent, the Purchaser Agents, any Investors or any Bank or any Indemnified Party or Affected Person shall be required for any reason to pay over to an Obligor (or to any trustee, receiver, custodian or similar official in any proceeding of the type contemplated by paragraph (g) of Exhibit V) any amount received by it hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller, and, accordingly, the Administrative Agent, the Purchaser Agents, the Investors or the Banks, or the Indemnified Parties or the Affected Persons, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) Except as provided in Section 1.04(e)(i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivables shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables.
(g) The Seller shall forthwith deliver (i) to the Collection Agent an amount equal to all Collections deemed received by the Seller pursuant to Section 1.04(e)(i) or (ii) above and the Collection Agent shall hold or reinvest such Collections in accordance with Section 1.04(b), or (ii) if Collections are then being paid to the Servicer Administrative Agent or a Controlled Account directly or indirectly owned or controlled by the Administrative Agent, the Seller shall forthwith cause such deemed Collections to be paid to the Administrative Agent or such Controlled Account. So long as the Seller shall hold any Collections or deemed Collections required to be paid to the Collection Agent, the Administrative Agent, a Purchaser Agent, a Purchaser, a Bank, an Indemnified Party, or an Affected Person, it shall hold such Collections in trust and separate and apart from its own funds and shall clearly m▇▇▇ its records to reflect such trust.
(h) Subject to Section 1.04(a) with respect to each Non-Extending Purchaser that has not Reinvestagreed to transfer and assign its Commitment pursuant to Section 1.04(a) of this Agreement, but the Collection Agent shall implement the procedures set forth in this Section 1.04(h) (a “Partial Liquidation”). On each Business Day prior to such Non-Extending Purchaser's Commitment being reduced to zero (provided that no Event of Termination has occurred and is continuing), the Collection Agent shall apply funds, out of the Collections represented by the Receivable Interest received and not previously applied, in the following manner:
(i) set aside and hold in trust in the Collection Account, for the benefit of the Purchasers an amount equal to all Yield and fees and other payments owed under the Fee Agreements (based on the Receivable Interest at such time), in each case accrued through such day and shallnot so previously set aside or paid. The Collection Agent shall thereafter pay to each Purchaser Agent on the last day of each Settlement Period for the Purchasers (ratably according to accrued Yield and fees other payments owed under the Fee Agreements ) the amount of such accrued and unpaid fees other payments owed under the Fee Agreements and Yield;
(ii) pay to each applicable Purchaser Agent for the account of each Non-Extending Purchaser, at if any, related to such Purchaser Agent (ratably based on the request Bank Commitment of the AdministratorBank related to such Purchasers at such time), segregate and, for the account of any related Purchasers solely to the extent necessary to reduce such Purchaser’s pro rata portion of the Purchase Limit to an amount that is equal to or lesser than the amount of any available Bank Commitment of any remaining Banks related to such Purchaser at such time, from such Collections remaining after application pursuant to clause (i) above, the amount of such Non-Extending Purchaser's Commitment; provided that solely for purposes of determining such Non-Extending Purchaser's ratable share of such Collections, such Bank Commitment shall be deemed to remain constant from the date such Purchaser becomes a Non-Extending Purchaser until the date such Non-Extending Purchaser's Commitment has been paid in full; it being understood that if such day is also a separate Termination Day or a day on which an Event of Termination has occurred, the Bank Commitment of the Bank related to such Purchaser shall be recalculated at such time (taking into account approved amounts received by or on behalf of such Purchaser in respect of its Capital pursuant to this clause (ii)), and thereafter Collections shall be set aside for payment to all Purchasers (ratably according to the AdministratorBank Commitment of the Bank related to such Purchaser) a portion pursuant to paragraph (d) above; and
(iii) reinvest the balance of such Collections that, together with in respect of Capital to the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit acquisition of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended additional undivided percentage interests pursuant to Section 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;1.02 hereof.
Appears in 1 contract
Sources: Receivables Purchase Agreement (United Rentals North America Inc)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.the
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
: (i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser GroupIssuer, out of the Issuer’s Share of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group the Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Issuer’s Share of the Servicing Fee accrued through such day and not previously set aside;
, (ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Issuer, the remainder of the Issuer’s Share of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestreinvest, but shall set aside and hold in trust for the benefit of the Purchasers Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount (iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer the entire remainder of the Issuer’s Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be deposited ratably to each Purchaser Agent’s account reinvested in accordance with clause (for the benefit of its related Purchasers and to be applied in reduction of their respective Capitalii) on the next Weekly Settlement Date day of such subsequent satisfaction or waiver of conditions, and (iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4(c)1.4; provided, further, that if UGI or an Affiliate thereof is the Facility Servicer, such day is not a Termination Date Day and the Administrator has been extended not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to Section 1.11 clause (b)(i) that represent the Issuer’s Share of the Servicing
(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows: (i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, and (ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any Purchaser (other Indemnified Party or its Purchaser Agent) has provided notice (an “Exiting Notice”) Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the AdministratorFee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4: (i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Purchaser’s refusalPool Receivable in the amount of such reduction or adjustment; (ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, pursuant or Section 2, 3 or 4 of Exhibit VI is not true with respect to Section 1.11any Pool
(f) If at any time, the Seller shall wish to extend its cause the reduction of the Capital (but not to commence the liquidation, or its related Committed Purchaser’sreduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) Commitment hereunder the Seller shall give the Administrator and the Servicer written notice in the form of Annex C or corresponding notice through PINACLE (an “Exiting Purchaser”A) then at least one Business Day prior to the date of such Collections reduction for any reduction of Capital less than or equal to $20,000,000; (B) at least two Business Days prior to the date of such reduction for any reduction of Capital greater than $20,000,000 and less than or equal to $50,000,000; and (C) at least three Business Days prior to the date of such reduction for any reduction of Capital greater than $50,000,000, in each case such notice shall not be Reinvested have been received by 3:00 p.m. New York City time on such date and shall instead be held in trust for include the benefit amount of such Purchaser proposed reduction and applied in accordance with clause the proposed date on which such reduction will commence; (iiiii) below;on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
Appears in 1 contract
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold (or cause the Seller to set aside and hold) in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter Fees accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)Rights; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestremit such remainder to the Seller or reinvest it, but shall set aside and hold (or cause the Seller to set aside and hold) in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraphclause (ii), shall equal the amount necessary to reduce the Purchased Interest to 100%% (determined as if such Collections set aside had been applied to reduce the Aggregate Capital at such time), which amount shall be deposited ratably into the Administrator’s Account (for further distribution by the Administrator, ratably, to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective CapitalPurchasers)) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if in the Facility Termination Date has been extended pursuant to Section 1.11 and case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.111.22, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then ), then, such Collections shall not be Reinvested reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below,
(iii) if such day is a Termination Day (or a day on which the Commitment of an Exiting Purchaser terminates), set aside and hold (or cause the Seller to set aside and hold) in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of such Collections (or, in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Capital; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Capital shall be deemed to remain constant from the day on which the Commitment of such Exiting Purchaser terminates, until the date such Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated); provided, further, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day on which the Commitment of such Exiting Purchaser terminates) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and the Majority Purchaser Agents (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Capital (or the Capital of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Capital, be reinvested in accordance with clause (ii) above on the day of such subsequent satisfaction or waiver of conditions or revocation of Exiting Notice, as the case may be, and
(iv) subject to Section 1.4(f), release to the Seller for its own account any Collections in excess of: (x) the amounts that are required to be set aside or reinvested pursuant to clauses (i), (ii) and (iii) above plus (y) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the LC Bank, the Administrator and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d) below, deposit into the Administrator’s Account (for further distribution by the Administrator into each applicable Purchaser Agent’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent)), on each Settlement Date (for any Portion of Capital), Collections held for each Purchaser pursuant to Sections 1.4(b)(i), (ii) and (iii) and Section 1.4(f); provided, that if Swift or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified Swift (or such Affiliate) that such right is revoked, Swift (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchasers’ Share of the Servicing Fee. On or prior to the last day of each Calculation Period, each Purchaser Agent will notify the Servicer by email communications or other electronic delivery of the amount of Discount accrued with respect to its Portion of Capital during such Calculation Period or portion thereof.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day, that is not a day on which the Commitment of an Exiting Purchaser terminates and on which the Purchased Interest does not exceed 100%, first to the Administrator’s Account (for further distribution by the Administrator to each Purchaser Agent ratably (based on the Discount and Fees accrued during such Yield Period) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group)) in payment in full of all accrued Discount and Fees with respect to each Portion of Capital maintained by the Purchasers within such Purchaser Agent’s Purchaser Group; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and Fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to Section 1.4(b)(i) and has not retained such amounts pursuant to Section 1.4(c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day, on a day on which the Commitment of an Exiting Purchaser terminates or on a day when the Purchased Interest exceeds 100%, first if Swift or an Affiliate thereof is not the Servicer or if Swift or an Affiliate thereof is the Servicer and a Termination Event shall have occurred and be continuing, to the Servicer’s own account in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second to the Administrator’s Account (for further distribution by the Administrator to each Purchaser Agent ratably (based on the Discount and Fees accrued during such Yield Period) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group)) in payment in full of all accrued Discount and Fees with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third to the Administrator’s Account (for further distribution by the Administrator to each Purchaser Agent ratably (based on the aggregate of the Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group)) in payment in full of (x) if such day is a Termination Day, each Purchaser’s Capital, (y) if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%, or (z) if such day is a day on which the Commitment of an Exiting Purchaser terminates, an amount equal to the Exiting Purchaser’s ratable share of the Collections set aside pursuant to Section 1.4(b)(iii) based on its Capital (determined as if such Collections had been applied to reduce the Aggregate Capital); it being understood that each Purchaser Agent shall distribute the amounts described in the second and third clauses of this clause (ii) to the Purchasers within its Purchaser Group ratably (based on Discount and Fees and Capital, respectively), fourth, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants, the amount necessary to cash collateralize the LC Participation Amount until the amount of cash collateral held in such LC Collateral Account equals 100% of the LC Participation Amount, fifth, if the Aggregate Capital and accrued Aggregate Discount with respect to each Portion of Capital for all Purchaser Groups have been reduced to zero, the Fees have been paid in full and the Purchasers’ Share of all accrued Servicing Fees payable to the Servicer (if other than Swift or an Affiliate thereof) have been paid in full, to the Administrator’s Account (for further distribution by the Administrator to each Purchaser Group ratably (based on the amounts payable to each) (for the benefit of the Purchasers within such Purchaser Group), the Administrator and any other Indemnified Party or Affected Person) in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder and sixth, to the Servicer’s own account (if the Servicer is Swift or an Affiliate thereof and a Termination Event is not continuing) in payment in full of the aggregate of the Purchaser’s Share of all accrued Servicing Fees. After the Capital (on and after a day when the Purchased Interest exceeds 100% or any day on which the Commitment of an Exiting Purchaser terminates), Aggregate Discount, Fees and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder have been paid in full, and (on and after a Termination Day) after Aggregate Capital and an amount equal to 100% of the LC Participation Amount has been deposited in the LC Collateral Account, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment or, in the case of a Receivable which has been canceled and contemporaneously reissued pursuant to the Credit and Collection Policy, the negative difference (if any) between such canceled Receivable and such reissued Receivable, and shall, subject to Section 1.4(e)(v), immediately pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4(b);
(ii) if on any day any of the representations or warranties in Sections 1(j) or 3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of the full Outstanding Balance of such Pool Receivable and shall, subject to Section 1.4(e)(v), immediately pay any and all such amounts in respect thereof to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4(b) (Collections deemed to have been received pursuant to Sections 1.4(e)(i) or (ii) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) except as provided in Sections 1.4(e)(i) or (ii) or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor specified an applicable Receivable;
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof; and
(v) if at any time before the Facility Termination Date the Seller is deemed to have received any Deemed Collection under Sections 1.4(e)(i) and (ii), so long as no Termination Day then exists, the Seller may satisfy its obligation to deliver the amount of such Deemed Collections to a Lock-Box Account by instead recalculating (or being deemed to have recalculated) the Purchased Interest by decreasing the Net Receivables Pool Balance by the amount of such Deemed Collections, so long as such adjustment does not cause the Purchased Interest to exceed 100%.
(f) If at any time the Seller wishes to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex E (each, a “Paydown Notice”) at least two (2) Business Days prior to the date of such reduction for any reduction of the Aggregate Capital, and each such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold (or cause the Seller to set aside and hold) such Collections in trust for the benefit of each Purchaser ratably according to its Capital, for payment to the Administrator’s Account (for further distribution by the Administrator to each such Purchaser (or its related Pu
Appears in 1 contract
Sources: Receivables Purchase Agreement (Knight-Swift Transportation Holdings Inc.)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased InterestInterests.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed receivedreceived in accordance with Section 1.7(e)) by the Seller or Servicer, transfer such Collections into the ServicerCollection Account. With respect to such Collections on such day, the Servicer shall:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) Collection Account for the benefit of each Purchaser Groupthe Purchasers, out of the percentage of such CollectionsCollections represented by the Purchased Interest, (x) first an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital Tranche and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available thereforsecond, an amount equal to the aggregate of each Fees payable to the Purchasers and accrued through such day and not previously set aside, and third, an amount equal to such Purchasers’ ' Share of the Servicing Fee accrued through such day and not previously set aside;; and
(ii) subject to Section 1.4(f1.7(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Purchasers, the remainder of the percentage of such Collections. Such , represented by the Purchased Interest, to the extent representing a return on the Aggregate Capital; such Collections shall be automatically reinvested for the benefit of the Purchasers in Pool Receivables, and in the Related Security and Collections and other proceeds with respect thereto, and the Purchased Interest shall be automatically recomputed pursuant to Section 1.4;
(iii) if such day is a Termination Day, (A) set aside and retain in the Collection Account for the benefit of the Purchasers, the entire remainder of the percentage of the Collections represented by the Purchased Interest; provided that, so long as the Facility Termination Date has not occurred, if any amounts are so set aside and retained in the Collection Account on any Termination Day and thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or are waived by the Required Purchasers, such previously set aside amounts shall, to the extent representing a return on the Aggregate Capital, ratably, according Capital and not applied to each Purchaser’s Capitalthe reduction of the Aggregate Capital pursuant to Section 1.7(g), be automatically reinvested in Pool Receivablesaccordance with the preceding paragraph (ii) on the day of such subsequent satisfaction or waiver of conditions, and (B) set aside and retain in the Related SecurityCollection Account the entire remainder of the Collections in the Collection Account represented by the Seller's Share of the Collections, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)if any; provided, howeverthat so long as the Facility Termination Date has not occurred, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall any amounts are so set aside and hold retained in trust the Collection Account on any Termination Day and thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or are waived by the Required Purchasers, such previously set aside amounts shall, to the extent not applied to the reduction of the Aggregate Investment pursuant to Section 1.7(g), be distributed to the Seller on the day of such subsequent satisfaction or waiver of conditions; and
(iv) during such times as amounts are required to be reinvested in accordance with the foregoing paragraph (ii) or the proviso to paragraph (iii), release to the Seller (subject to Section 1.7(f)) for its own account any Collections in excess of (x) such amounts, (y) the amounts that are required to be set aside and retained in the Collection Account pursuant to paragraph (i) above and (z) in the event ▇▇▇▇▇▇▇ (or any Affiliate of Group) is not the Servicer, all reasonable and appropriate out-of-pocket costs and expenses of such Servicer of servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall deposit into an account designated by the Agent for the benefit of the Purchasers, on each Settlement Date for each Tranche and for each Settlement Date for the payment of fees, as the case may be:
(i) Collections held on deposit in the Collection Account for the benefit of the Purchasers pursuant to Section 1.7(b)(i) in respect of accrued Discount for such Tranche and accrued and unpaid Fees;
(and shall, at ii) Collections held on deposit in the request Collection Account for the benefit of the AdministratorPurchasers pursuant to Section 1.7(f); and
(iii) If such Settlement Date occurs on a date that is a Termination Day, segregate the lesser of (x) the sum of (i) the amount of Collections then held on deposit in a separate account approved by the AdministratorCollection Account for the benefit of the Purchasers pursuant to Section 1.7(b)(iii)(A) a portion plus (ii) the amount of Collections then on deposit in the Collection Account in respect of the Seller's Share of Collections pursuant to Section 1.7(b)(iii)(B) and (y) the Tranche Amount of such Tranche. The Servicer shall deposit to its own account from Collections thatheld on deposit in the Collection Account pursuant to Section 1.7(b)(i) in respect of the accrued Servicing Fee, together an amount equal to such accrued Servicing Fee.
(d) Upon receipt of funds deposited into the Agent's account pursuant to Section 1.7(c), the Agent shall distribute to the Purchasers ratably in accordance with each Purchaser's Pro Rata Share as follows:
(i) if such distribution occurs on a day that is not a Termination Day, first to the other Collections Purchasers in payment in full of all accrued and unpaid Discount for such Tranche and accrued and unpaid Fees payable to the Purchasers, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to this paragraphSection 1.7(b)(i) and has not retained such amounts pursuant to Section 1.7(c), shall equal to the Servicer (payable in arrears on each Settlement Date) in payment in full of each Purchasers' Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Purchasers in payment in full of all accrued Discount and such accrued and unpaid Fees, second to the Purchasers in payment of the Capital of the Purchasers (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), which amount shall be deposited ratably third, if ▇▇▇▇▇▇▇ or an Affiliate of Group is not the Servicer, to the Servicer in payment in full of all accrued Servicing Fees, fourth, if the Aggregate Capital and accrued Discount with respect to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date Tranche has been extended reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than ▇▇▇▇▇▇▇ or an Affiliate of Group) have been paid in full, to such Purchaser, the Agent, the Co-Agent and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder and, fifth, unless such amount has been retained by the Servicer pursuant to Section 1.11 1.7(c), to the Servicer (if the Servicer is ▇▇▇▇▇▇▇ or an Affiliate of Group) in payment in full of such Purchasers' Share of all accrued Servicing Fees. After the Aggregate Capital, Discount with respect to all Tranches, Fees and Servicing Fees, and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, other amounts payable by the Seller and the Servicer to the Purchasers, the Agent, the Co-Agent or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interests shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.7:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by any Originator, the Servicer, the Seller or any Affiliate of the Seller, or any setoff or dispute between any Originator, the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Purchaser’s refusalPool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (m) of Exhibit III is not true with respect to any Pool Receivable, pursuant the Seller shall be deemed to Section 1.11have received on such day a Collection of such Pool Receivable in full;
(iii) except as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to extend the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Agent, the Co-Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or its related Committed any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Agent, the Co-Agent or such Purchaser’s, as the case may be, but rather to have been retained by the Seller and, accordingly, the Agent, the Co-Agent or such Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) Commitment hereunder If at any time the Seller shall wish to cause the reduction of the Aggregate Capital of the Purchased Interest, the Seller may do so as follows:
(an “Exiting Purchaser”i) then the Seller shall give the Agent, the Co-Agent and the Servicer at least five Business Days' prior written notice thereof (including the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections shall not be Reinvested and shall instead be held in trust the Collection Account for the benefit of such the Purchasers, for payment to the Agent on behalf of each Purchaser and applied in accordance with clause such Purchaser's Pro Rata Share on the first Settlement Date to occur with respect to any Tranche, and the Capital of each Purchaser shall be deemed reduced in the amount to be paid to the applicable Purchaser only when in fact finally so paid; provided, however, that if the amount of such proposed reduction exceeds the Tranche Amount for such Tranche, the amount of such excess shall be applied on the next Settlement Date to occur for the other outstanding Tranches until such excess amount has been applied to reduce the Tranche Amounts; provided, that:
(iiiA) belowthe amount of any such reduction shall be not less than $2,000,000 and shall be an integral multiple of $1,000,000, and no Tranche Amount for any Tranche after giving effect to such reduction shall be less than $2,000,000 (unless such Tranche Amount shall have been reduced to zero);
(B) the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Interest Period; and
(C) The Capital of each Purchaser shall be reduced pro rata such that after giving effect to such reduction, the outstanding Capital of such Purchaser hereunder is equal to such Purchaser's Percentage of the Aggregate Capital.
(g) Notwithstanding any term or provision to the contrary contained in this Agreement, if on any Weekly Report Date occurring prior to the Facility Termination Date, the sum of the Aggregate Capital and Total Reserves shall exceed the Net Receivable Pool Balance, the Seller shall not later than 2:00 p.m. New York City time on the Business Day immediately succeeding such Weekly Report Date, deposit into an account designated by Agent for the benefit of the Purchasers, in reduction of the Aggregate Capital, such amount as may be necessary to cause the sum of the Aggregate Capital and Total Reserves to not exceed the Net Receivable Pool Balance (after giving effect to the application of such payment to the reduction of such Aggregate Capital). Upon receipt of such funds deposited in the Agent's account, the Agent shall distribute such funds to the Purchasers ratably in accordance with each Purchaser's Pro Rata Share and the Capital of each Purchaser shall be reduced by the amount of such payment. Any payments required to be made by the Seller pursuant to this Section 1.7(g) shall be subject to any Breakage Amounts in accordance with Section 1.14.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Warnaco Group Inc /De/)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the sum of (i) the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (yii) an amount equal to the fees set forth in each Purchaser Group Fee Letter Fees accrued and unpaid through such day, day and (ziii) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Purchasers, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratablybe automatically reinvested, ratably according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if if, after giving effect to any such reinvestment, (x) the Purchased Interest would exceed 100%, or (y) the Aggregate Capital would exceed the Purchase Limit then in effect, then the Servicer shall not Reinvestremit such remainder to the Seller or reinvest, but shall set aside and hold in trust for the Administrator (for the benefit of the Purchasers Purchasers) (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%% or cause the Aggregate Capital not to exceed the Purchase Limit, as the case may be (determined as if such Collections set aside had been applied to reduce the Aggregate Capital at such time), which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers Purchasers) for distribution and to be applied in reduction of their respective Capital) application on the next Weekly Settlement Date in accordance with Section 1.4(c1.4(d); provided, further, that if (x) in the Facility Termination Date has been extended pursuant to Section 1.11 and case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (or a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.111.22, to extend its (or its related Committed Purchaser’s) Commitment the then-scheduled Facility Termination Date hereunder (an “Exiting Purchaser”) then in either case set forth in subclauses (x) or (y), above, such Collections shall not be Reinvested reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;
(iii) if such day is a Termination Day (or any day following the provision of a Declining Notice or an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of such Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser an amount equal to such Purchaser’s ratable share of such Collections based on its Capital; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice, as the case may be, until the date such Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Declining Conduit Purchaser’s or Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated)); and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (w) amounts required to be reinvested in accordance with clause (ii) plus (x) the amounts that are required to be set aside pursuant to clause (i) above, pursuant to the proviso to clause (ii) above and pursuant to clause (iii) above, plus (y) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the Purchaser Agents, the Administrator, and any other Indemnified Party or Affected Person.
(c) On each Settlement Date, the Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit into the account specified by each Purchaser Agent Collections held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to Section 1.4(b)(i) or 1.4(f) plus the amount of Collections then held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to Sections 1.4(b)(ii) and 1.4(b)(iii); provided, that if Cloud Peak or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified Cloud Peak (or such Affiliate) that such right is revoked, Cloud Peak (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of the Purchasers’ Share of the Servicing Fee. On or prior to the last day of each Settlement Period, each Purchaser Agent will notify the Servicer by electronic mail of the amount of Discount accrued with respect to each Portion of Capital during such related Settlement Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day:
(A) first, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to Section 1.4(b)(i) and has not retained such amounts pursuant to Section 1.4(c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate Purchasers’ Share of the accrued Servicing Fees so set aside; and
(B) second, to each Purchaser Agent ratably according to the Discount and Fees accrued during such Settlement Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Capital maintained by such Purchasers and all such accrued Fees owing to such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and Fees, respectively ; and
(ii) if such distribution occurs on a Termination Day:
(A) first, to the Servicer (if the Servicer is not Cloud Peak of an Affiliate thereof), in payment in full of the Purchasers’ Share of all accrued Servicing Fees;
(B) second to each Purchaser Agent ratably (based on the aggregate accrued and unpaid Discount and Fees payable to all Purchasers at such time) (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group and all accrued Fees;
(C) third to each Purchaser Agent ratably according to the aggregate of the Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Capital; it being understood that each Purchaser Agent shall distribute the amounts described in the first, second and third clauses of this Section 1.4(d)(ii) to the Purchasers within such Purchaser Agent’s Purchaser Group ratably according to Discount, Fees and Capital, respectively; and
(D) fourth, if the Aggregate Capital and accrued Aggregate Discount with respect to each Portion of Capital for all Purchaser Groups have been reduced to zero, and the aggregate of the Purchasers’ Share of all accrued Servicing Fees payable to the Servicer have been paid in full, to each Purchaser Agent ratably, based on the remaining amounts, if any, payable to each Purchaser in such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder; and
(E) fifth, to the Servicer (if the Servicer is Cloud Peak or an Affiliate thereof) in payment in full of the aggregate of the Purchasers’ Share of all accrued Servicing Fees. After the Aggregate Capital, Aggregate Discount, Fees and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and shall (i) if such day is not a Termination Day, hold any and all such amounts in trust for the benefit of the Purchasers and their assigns and, on the following Settlement Date, apply such amounts in accordance with this Section 1.4 or (ii) if such day is a Termination Day, immediately pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4;
(ii) if on any day any of the representations or warranties in Sections 1(j) or 3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full and shall immediately pay the amount of such deemed Collection to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to this Section 1.4 (Collections deemed to have been received pursuant to clause (i) or (ii) of this paragraph (e) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) except as provided in clause (i) or (ii) otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex E (each, a “Paydown Notice”) at least two Business Days prior to the date of such reduction and each such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Capital, for payment to each such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) on the next Settlement Date (or such other date as agreed to by the Administrator and Seller) with respect to any Portions of Capital maintained by such Purchaser immediately following the related current Settlement Period, and the Aggregate Capital (together with the Capital of any related Purchaser) shall be deemed reduced in the amount to be paid to such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) only when in fact finally so paid; provided, that:
(A) the amount of any such reduction shall be not less than $100,000 for each Purchaser Group and shall be an integral multiple of $100,000 in excess thereof, and unless reduced to zero, the entire Aggregate Capital after giving effect to such reduction shall be not less than $1,000,000; and
(B) with respect to any Portion of Capital, the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Settlement Period.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Cloud Peak Energy Resources LLC)
Settlement Procedures. (a) The collection Collection of the Pool Receivables shall be administered by the Servicer a Collection Agent, in accordance with the terms of Article VI of this Agreement. The Seller shall provide to the Servicer Collection Agent (if other than the Seller) on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased InterestLiquidation Day.
(b) The Servicer Collection Agent shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicerit:
(i) with respect to each Receivable Interest, set aside and hold in trust (and shalland, at the request of the Administrator24 30 Agent, segregate in a separate account approved by the Administratorsegregate) for the benefit of each Purchaser GroupInvestors or the Banks that hold such Receivable Interest, out of the percentage of such Collections, (x) an amount equal to the Aggregate Discount accrued through Collections represented by such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available thereforReceivable Interest, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Yield, Fees and Collection Agent Fee accrued through such day for such Receivable Interest and not previously set aside;
(ii) subject with respect to Section 1.4(f)each Receivable Interest, if such day is not a Termination DayLiquidation Day for such Receivable Interest, remit to reinvest with the Seller, ratably, Seller on behalf of each Purchaser Groupthe Investors or the Banks that hold such Receivable Interest the percentage of such Collections represented by such Receivable Interest, to the extent representing a return of Capital, by recomputation of such Receivable Interest pursuant to Section 2.03;
(iii) if such day is a Liquidation Day for any one or more Receivable Interests, set aside and hold in trust (and, at the request of the Agent, segregate) for the Investors or the Banks that hold such Receivable Interests (x) if such day is a Liquidation Day for less than all of the Receivable Interests, the remainder percentage of such Collections. Such remainder Collections represented by such Receivable Interests, and (y) if such day is a Liquidation Day for all of the Receivable Interests, all of the remaining Collections (but not in excess of the Capital of such Receivable Interests); provided that if amounts are set aside and held in trust on any Liquidation Day occurring prior to the Termination Date, and thereafter prior to the Settlement Date for such Fixed Period the conditions set forth in Section 3.02 are satisfied or waived by the Agent, such previously set aside amounts shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s of Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together accordance with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account preceding subsection (for the benefit of its related Purchasers and to be applied in reduction of their respective Capitalii) on the next Weekly day of such subsequent satisfaction or waiver of conditions; and
(iv) release to the Seller for its own account any remaining Collections.
(c) The Collection Agent shall deposit into the Agent's Account, on the Settlement Date in accordance with Section 1.4(c); providedfor each Receivable Interest, further, Collections held for the Investors or the Banks that if the Facility Termination Date has been extended relate to such Receivable Interest pursuant to Section 1.11 and any Purchaser 2.04(b).
(or its Purchaser d) Upon receipt of funds deposited into the Agent's Account, the Agent shall distribute them as follows:
(i) has provided notice (an “Exiting Notice”) if such distribution occurs on a day that is not a Liquidation Day, first to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (Investors or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;the
Appears in 1 contract
Sources: Receivables Purchase Agreement (Centex Construction Products Inc)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased InterestInterests.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed receivedreceived in accordance with Section 1.4(e)) by the Seller or Servicer, transfer such Collections into the ServicerCollection Account. With respect to such Collections on such day, the Servicer shall:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) Collection Account for the benefit of each Purchaser GroupInvestor, out of the percentage of such CollectionsCollections represented by the Purchased Interest of such Investor, (x) first an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital of such Purchased Interest and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available thereforsecond, an amount equal to the aggregate of each Purchasers’ Fees payable to such Investor and accrued through such day and not previously set aside, and third, an amount equal to such Investor's Share of the Servicing Fee accrued through such day and not previously set aside;; and
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupsuch Investor, the remainder of the percentage of such Collections. Such remainder shall, represented by its Purchased Interest, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, ; such Collections shall be automatically reinvested in Pool Receivables, and in the Related Security, Security and Collections and other proceeds with respect thereto (each such reinvestmentthereto, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%of such Investor shall be automatically recomputed pursuant to Section 1.3;
(iii) if such day is a Termination Day, then the Servicer shall not Reinvest, but shall (A) set aside and hold retain in trust the Collection Account for such Investor, the benefit entire remainder of the Purchasers (and shall, at the request percentage of the Administrator, segregate in a separate account approved Collections represented by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%of such Investor; provided that, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if so long as the Facility Termination Date has been extended pursuant to Section 1.11 not occurred, if any amounts are so set aside and retained in the Collection Account on any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the AdministratorTermination Day and thereafter, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;conditions set forth in
Appears in 1 contract
Sources: Receivables Purchase Agreement (Warnaco Group Inc /De/)
Settlement Procedures. (a) The collection of the Pool --------------------- Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the AdministratorAdministrator if, at the time of such request, there exist an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser GroupIssuer, out of the Issuer's Share of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group the Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Issuer's Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, ------------- remit to the Seller, ratably, on behalf of each Purchaser Groupthe Issuer, the remainder of the Issuer's Share of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestreinvest, but shall set aside and hold in trust for the benefit of the Purchasers Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,
(iii) if such day is a Termination Day, which amount shall be deposited ratably to each Purchaser Agent’s account set aside, segregate and hold in trust (for and shall, at the benefit request of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held segregate in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;a separate account approved by the
Appears in 1 contract
Sources: Receivables Purchase Agreement (KPMG Consulting Inc)
Settlement Procedures. (a) The collection Collection of the Pool Receivables shall be administered by the Servicer in accordance with the terms of this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased InterestAssets Coverage Percentage.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or Servicer, transfer such Collections from the ServicerLock-Box Accounts and deposit such Collections into the Collection Account, except as otherwise permitted pursuant to Section 4.3(a). With respect to all Collections on deposit in the Collection Account on such day, the Servicer shall:
(i) set aside and hold maintain in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) Collection Account for the benefit of each the Purchaser Group(and, in the case of clause fourth below, the applicable Indemnified Party or Affected Person, subject to their right to receive such amounts solely in accordance with the priorities for payment set forth in Section 1.6(d) below), out of such Collections, (x) first an amount equal to all Discount accrued through such day and not previously set aside and second, an amount equal to the Aggregate Discount sum of the Utilization Fees, Commitment Fees and Breakage Costs accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such daythird, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside and fourth, to the extent funds are available therefor, any other amounts (other than return of Capital) owed to any Indemnified Party or Affected Person pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4 and not previously set aside;
(ii) subject to Section 1.4(f1.6(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Purchaser, the remainder of such Collections. Such remainder shall, (x) to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s of Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections Purchased Assets and other proceeds with respect thereto and (each such reinvestmenty) to the extent not representing a return of Capital, a “Reinvestment,” and “Reinvest” shall have be paid (on behalf of the correlative meaning)Purchaser) to the Seller in respect of the Deferred Purchase Price for the Purchased Assets; provided, however, that if if, after giving effect to such Reinvestment, the Purchased Interest Assets Coverage Percentage would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold maintain in trust the Collection Account for the benefit of the Purchasers Purchaser in accordance with clause (and shall, at iii) below the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such remaining Collections that, together with the any other Collections set aside pursuant to this paragraphclause (ii), shall equal equals the amount necessary to reduce the Purchased Interest Assets Coverage Percentage to 100% (or, if all such remaining Collections are not sufficient to reduce the Purchased Assets Coverage Percentage to 100%, which amount then all such remaining Collections shall be deposited ratably to each Purchaser Agent’s account (so set aside for the benefit of its related Purchasers and to be applied in reduction the Purchaser), rather than remitting all of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) such remaining Collections to the AdministratorSeller for Reinvestment or for payment of the Deferred Purchase Price;
(iii) if such day is a Termination Day, set aside and maintain in the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust Collection Account for the benefit of the Purchaser the entire remainder of such Purchaser Collections; and
(iv) subject to Section 1.6(f), pay to the Seller (on behalf of the Purchaser) for the Seller’s own account and applied in payment of the Deferred Purchase Price for the Purchased Assets, any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) above, plus (y) the amounts that are required to be set aside pursuant to clause (i) above, pursuant to the proviso to clause (ii) above and pursuant to clause (iii) belowabove, plus (z) all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) On each Settlement Date, the Servicer shall (i) deposit into the Purchaser’s Account (or such other account designated by the Agent) all Collections held on deposit in the Collection Account for the benefit of the Purchaser, the Indemnified Parties and any other Affected Persons pursuant to Section 1.6(b) and Section 1.6(f) and (ii) deposit to the Servicer’s own account, from Collections held on deposit in the Collection Account pursuant to clause third of Section 1.6(b)(i) in respect of the accrued Servicing Fee, an amount equal to such accrued Servicing Fee.
(d) Upon receipt of funds deposited into the Purchaser’s Account pursuant to Section 1.6(c), the Agent shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day, such funds shall be distributed in the following order of priority: first to the Purchaser in payment in full of all unpaid Discount accrued during the most recently ended Discount Accrual Period, second to the Purchaser in payment in full of all unpaid Utilization Fees, Commitment Fees and Breakage Costs accrued during the most recently ended Discount Accrual Period, third to the Purchaser in payment of outstanding Capital (and accrued Discount thereon) to the extent that funds have been set aside for such purpose pursuant to Section 1.6(f), fourth to the Purchaser, the Agent and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4 and fifth, any remaining amounts shall be paid to the Purchaser in payment of outstanding Capital; and
(ii) if such distribution occurs on a Termination Day, such funds shall be distributed in the following order of priority: first to the Purchaser in payment in full of all accrued and unpaid Discount, second to the Purchaser in payment in full of all accrued and unpaid Utilization Fees, Commitment Fees and Breakage Costs, third to the Purchaser in payment in full of all outstanding Capital, fourth to the Purchaser, the Agent and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder (including, without limitation, pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4). After the occurrence of the Final Payout Date, all additional Collections with respect to the Purchased Assets shall be paid to the Seller for its own account in payment of the Deferred Purchase Price for such Purchased Assets.
(e) For the purposes of this Section 1.6:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, damaged, rejected, returned, repossessed or foreclosed goods or services, or any discount, rebate, credit, counterclaim, billing error or other adjustment made by the Seller, any Originator or Servicer, or any setoff or dispute between the Seller, any Originator or the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in paragraphs (e), (f) or (k) of Section 1 of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) If an Obligor makes a payment but does not designate the Receivable to which such payment applies, then the Servicer shall contact such Obligor promptly in order to determine to which Receivable such payment relates; provided, that if the Obligor does not direct the Servicer to apply such payment to a particular Receivable or Receivables within thirty (30) days after such payment has been received in a Lock-Box Account or by the Servicer, then, except as otherwise required by applicable law or the relevant Contract, such payment shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable; and
(iv) if and to the extent the Agent, the Purchaser or any other Indemnified Party shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller and, accordingly, the Agent or the Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of the Capital (in whole or in part), the Seller may do so as follows:
(i) the Seller shall give the Agent at least (x) five (5) Business Days’ prior written notice thereof in the case of any reduction of the Capital to zero ($0) or (y) one (1) Business Day’s prior written notice in the case of any partial reduction of the Capital, in either case, setting forth the proposed amount of such reduction and the proposed date on which such reduction will commence,
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections with respect to the Capital or portion thereof to be reduced (including to any related Discount) not to be reinvested or used to pay the Deferred Purchase Price until the amount thereof not so reinvested shall equal the desired amount of reduction, and
(iii) the Servicer shall hold such Collections in the Collection Account for the benefit of the Purchaser, for payment to the Purchaser’s Account on the next Settlement Date (and in the case of a reduction of the entire Investment, the Servicer shall hold in the Collection Account for payment on such date an amount equal to all other obligations of the Seller or Servicer to the Purchaser, the Agent and each other Indemnified Party or Affected Person hereunder) in accordance with Section 1.6(c), and the Capital shall be deemed reduced in the amount to be paid to the Purchaser’s Account only when in fact finally so paid; provided that, the amount of any such reduction shall be not less than one million dollars ($1,000,000) and shall be an integral multiple of one hundred thousand dollars ($100,000), and the entire Capital after giving effect to such reduction shall be not less than one million dollars ($1,000,000) unless the entire Capital shall have been reduced to zero.
Appears in 1 contract
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day Business Day on which Collections of Pool Receivables are received (or deemed received) by the Seller or Servicer or are deposited into the ServicerLock-Box Accounts, transfer such Collections therefrom and deposit such Collections into the Collection Account. With respect to such Collections on such day, the Servicer shall:
(i) set aside and hold in trust (and shall, at within the request of the Administrator, segregate in a separate account approved by the Administrator) Collection Account for the benefit of each Purchaser Groupthe Issuer, out of the percentage of such CollectionsCollections represented by the Purchased Interest, (x) first an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set asidetransferred, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter all accrued and unpaid through such dayFees not previously transferred, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Issuer's Share of the Servicing Fee accrued through such day and not previously set aside;transferred; and
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Issuer, the remainder of the percentage of such Collections. Such remainder shall, represented by the Purchased Interest, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, ; such Collections shall be automatically reinvested in Pool Receivables, and in the Related Security, Security and Collections and other proceeds with respect thereto (each such reinvestmentthereto, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%shall be automatically recomputed pursuant to Section 1.3; it being understood, then that prior to remitting to the Seller the remainder of such Collections by way of reinvestment in Pool Receivables, the Servicer shall have calculated the Purchased Interest on such day, and if such Purchased Interest shall exceed 100% of the Net Receivables Pool Balance on such day, such Collections shall not Reinvest, be remitted to the Seller but shall be set aside and hold in trust within the Collection Account for the benefit of the Purchasers Issuer in accordance with paragraph (iii) below;
(iii) if such day is a Termination Day, set aside within the Collection Account for the benefit of the Issuer the entire remainder of the percentage of the Collections represented by the Purchased Interest; provided that so long as the Facility Termination Date has not occurred if any amounts are so transferred to the Collection Account on any Termination Day and shallthereafter, at the request conditions set forth in Section 2 of Exhibit II are satisfied or are waived by the Administrator, segregate such previously transferred amounts shall, to the extent representing a return on the Capital, be reinvested in accordance with the preceding paragraph (ii) on the day of such subsequent satisfaction or waiver of conditions; and
(iv) if such day is not a separate Termination Day, release to the Seller (subject to Section 1.4(f)) for its own account approved any Collections in excess of (x) any amounts that are required to be reinvested in accordance with the foregoing paragraph (ii) or the proviso to paragraph (iii), (y) the amounts that are required to be set aside pursuant to paragraph (i) above and (z) in the event the Seller is not the Servicer, all reasonable and appropriate out-of-pocket costs and expenses of such Servicer of servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date, Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if BAX or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified BAX (or such Affiliate) that such right is revoked, BAX (or such Affiliate) may retain the portion of such Collections that, together with the other Collections set aside pursuant to this paragraphclause (b)
(i) that represents the Issuer's Share of the Servicing Fee. On the last day of each Yield Period, shall equal the Administrator will notify the Servicer by facsimile of the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably of Discount accrued with respect to each Purchaser Agent’s account (for the benefit Portion of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.11 and any Purchaser (Capital during such Yield Period or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;portion thereof.
Appears in 1 contract
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold (or cause the Seller to set aside and hold) in trust (and shall, at the request of the Administrator, segregate in a separate account approved by in the name of the Seller held at the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) first, to the extent of such Collections, an amount equal to the Servicing Fee accrued through such day and not previously paid or set aside, second, to the extent of such Collections as reduced by any allocations pursuant to clause first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously paid or set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such daythird, and (z) to the extent funds are available thereforof such Collections as reduced by any allocations pursuant to clauses first and second, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee Fees accrued and unpaid through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)Rights; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestremit such remainder to the Seller or reinvest it, but shall set aside and hold (or cause the Seller to set aside and hold) in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraphclause (ii), shall equal the amount necessary to reduce the Purchased Interest to 100%% (determined as if such Collections set aside had been applied to reduce the Aggregate Capital and to cash collateralize the LC Participation Amount at such time), which amount shall be deposited first, ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective CapitalPurchasers) on the next Weekly Settlement Date in accordance with Section 1.4(c); and second, to the LC Collateral Account; provided, further, that if if, as of any date following the Facility Termination Date has date on which any amounts have been extended set aside due to a shortfall pursuant to Section 1.11 the immediately preceding proviso (such amount, a “Purchased Interest Shortfall”) but prior to the Settlement Date on which such amounts are to be remitted to each Purchaser Agent’s Account or the LC Collateral Account, the Purchased Interest Shortfall is reduced (without giving effect to any funds set aside pursuant to such proviso), the Servicer shall remit to the Seller from amounts set aside pursuant to such proviso, an amount equal to the lesser of (1) the amount so set aside during the current Calculation Period, and (2) an amount necessary to reduce the Purchased Interest to 100%, promptly following notice to the Administrator including reasonable supporting information; provided, further, that in the case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.111.22, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then ), then, such Collections shall not be Reinvested reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below,
(iii) if such day is a Termination Day (or a day on which the Commitment of an Exiting Purchaser terminates), set aside and hold (or cause the Seller to set aside and hold) in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of such Collections (or, in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Capital; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Capital shall be deemed to remain constant from the day on which the Commitment of such Exiting Purchaser terminates, until the date such Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated); provided, further, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day on which the Commitment of such Exiting Purchaser terminates) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and the Majority Purchaser Agents (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Capital (or the Capital of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Capital, be reinvested in accordance with clause (ii) above on the day of such subsequent satisfaction or waiver of conditions or revocation of Exiting Notice, as the case may be, and
(iv) subject to Section 1.4(f), release to the Seller for its own account any Collections in excess of: (x) the amounts that are required to be set aside or reinvested pursuant to clauses (i), (ii) and (iii) above plus (y) all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the LC Bank, the Administrator and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d) below, deposit into each applicable Purchaser Agent’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date (for any Portion of Capital), Collections held for each Purchaser pursuant to Sections 1.4(b)(i), (ii) and (iii) and Section 1.4(f); provided, that if VWR or an Affiliate thereof is the Servicer, VWR (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the Servicing Fee. On or prior to the last day of each Calculation Period, each Purchaser Agent will notify the Servicer by email communications or other electronic delivery of the amount of Discount accrued with respect to its Portion of Capital during such Calculation Period or portion thereof.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), in each case, to the extent of funds available therefor, as follows:
(i) if such distribution occurs on a day that is not a Termination Day, that is not a day on which the Commitment of an Exiting Purchaser terminates and on which the Purchased Interest does not exceed 100%, first if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to Section 1.4(b)(i) and has not retained such amounts pursuant to Section 1.4(c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the accrued and unpaid Servicing Fees so set aside, and second, to each Purchaser Agent ratably (based on the Discount and Fees accrued during such Yield Period) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and Fees with respect to each Portion of Capital maintained by the Purchasers within such Purchaser Agent’s Purchaser Group; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and Fees, and
(ii) if such distribution occurs on a Termination Day, on a day on which the Commitment of an Exiting Purchaser terminates or on a day when the Purchased Interest exceeds 100%, first to the Servicer’s own account in payment in full of all accrued and unpaid Servicing Fees, second to each Purchaser Agent ratably (based on the Discount and Fees accrued during such Yield Period) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and Fees with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third to each Purchaser Agent ratably (based on the aggregate of the Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of (x) if such day is a Termination Day, each Purchaser’s Capital, (y) if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%, or (z) if such day is a day on which the Commitment of an Exiting Purchaser terminates, an amount equal to the Exiting Purchaser’s ratable share of the Collections set aside pursuant to Section 1.4(b)(iii) based on its Capital (determined as if such Collections had been applied to reduce the Aggregate Capital); it being understood that each Purchaser Agent shall distribute the amounts described in the second and third clauses of this clause (ii) to the Purchasers within its Purchaser Group ratably (based on Discount and Fees and Capital, respectively), fourth, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants, the amount necessary to cash collateralize the LC Participation Amount until the amount of cash collateral held in such LC Collateral Account equals (A) the amount necessary to reduce the Adjusted LC Participation Amount to zero ($0) and (B) an amount equal to the LC Fee Expectation and fifth, if the Aggregate Capital and accrued Aggregate Discount with respect to each Portion of Capital for all Purchaser Groups have been reduced to zero, the Fees have been paid in full and all accrued Servicing Fees payable to the Servicer have been paid in full, to each Purchaser Group ratably (based on the amounts payable to each) (for the benefit of the Purchasers within such Purchaser Group), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital (on any day when the Purchased Interest exceeds 100% or any day on which the Commitment of an Exiting Purchaser terminates), Aggregate Discount, Fees and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder have been paid in full, and (on and after a Termination Day) after Aggregate Capital and an amount equal to (A) the amount necessary to reduce the Adjusted LC Participation Amount to zero ($0) and (B) an amount equal to the LC Fee Expectation has been deposited in the LC Collateral Account, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and shall, subject to Section 1.4(e)(v), immediately pay any and all such amounts in respect thereof to a Collection Account for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4(b);
(ii) if on any day any of the representations or warranties in Sections 1(j) or 3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of the full Outstanding Balance of such Pool Receivable and shall, subject to Section 1.4(e)(v), immediately pay any and all such amounts in respect thereof to a Collection Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4(b) (Collections deemed to have been received pursuant to Sections 1.4(e)(i) or (ii) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) except as provided in Sections 1.4(e)(i) or (ii) or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor specified an applicable Receivable;
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof; and
(v) if at any time before the Facility Termination Date the Seller is deemed to have received any Deemed Collection under Sections 1.4(e)(i) and (ii), so long as no Termination Day then exists, the Seller may satisfy its obligation to deliver the amount of such Deemed Collections to a Collection Account by instead recalculating (or being deemed to have recalculated) the Purchased Interest by decreasing the Net Receivables Pool Balance by the amount of such Deemed Collections, so long as such adjustment does not cause the Purchased Interest to exceed 100%.
(f) If at any time the Seller wishes to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex E (each, a “Paydown Notice”) at least two (2) Business Days prior to the date of such reduction, and each such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Seller shall set aside (or cause to be set aside) and hold such Collections in trust for the benefit of each Purchaser ratably according to its Capital, for payment to each such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) on the date specified in the Paydown Notice (or such other date as agreed to by the Administrator) with respect to any Portions of Capital maintained by such Purchaser immedi
Appears in 1 contract
Settlement Procedures. (a) The collection of the Pool --------------------- Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for Administrator if, at the benefit of each Purchaser Group, out time of such Collectionsrequest, (x) there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect), first, an ----- amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees ------ set forth in each Purchaser Group the Fee Letter accrued and unpaid through such day, and (z) third, ----- to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject Subject to Section 1.4(f), if such day is not a Termination ------------- Day, then, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Issuer, the remainder of the Issuer's Share of such Collections. Such Collections and such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, will be automatically reinvested in Pool additional Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if after giving effect to such reinvestment, the Purchased Interest would shall not exceed 100%;
(iii) if such day is a Termination Day, then the Servicer shall not Reinvestset aside, but shall set aside segregate and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit Issuer the entire remainder of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c)Collections; provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.11 amounts are set aside and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be -------- held in trust for on any Termination Day of the benefit type described in clause (a) of the definition of "Termination Day" and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the ---------- Administrator, such Purchaser and applied previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or ---------- waiver of conditions; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own -------------- account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) below;plus (y) the ---------- ----------- amounts that are required to be set aside pursuant to clause (i), the --------- proviso to clause (ii) and clause (iii) plus (z) the Seller's Share of the ----------- ----------- Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Imco Recycling Inc)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the AdministratorAdministrator (with the consent or at the direction of the Majority Purchasers), segregate in a separate account approved by the AdministratorAdministrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of the Purchasers' Share of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital Investment and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group's Ratable Share of the Purchasers’ ' Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of the Purchasers' Share of such Collections. Such remainder shall, to the extent representing a return on the Aggregate CapitalInvestment, ratably, according to each Purchaser’s Capital's Investment, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestreinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the AdministratorAdministrator (with the consent or at the direction of the Majority Purchasers), segregate in a separate account approved by the AdministratorAdministrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if in the Facility Termination Date has been extended pursuant to Section 1.11 and case of any Purchaser (or its Purchaser Agent) that has provided notice (an “"Exiting Notice”") to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.111.10, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “"Exiting Purchaser”) "), then such Purchaser's ratable share of such Collections based on its Investment shall not be Reinvested reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below,
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Purchasers' Share of the Collections (or in the case of an Exiting Purchaser an amount equal to such Exiting Purchaser's ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Exiting Purchaser's ratable share of such Collections applicable to its Investment (and not for purposes of calculating any Fees or Discount payable to such Exiting Purchaser hereunder), such Exiting Purchaser's Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Exiting Purchaser's Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser's Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Exiting Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of "Termination Day" (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser, and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser's Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of Exiting Notice, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller's Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into each applicable Purchaser's account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date (or solely with respect to Collections held for the Purchasers pursuant to clause (f)(iii) of Section 1.4 such other date approved by the Administrator with at least (5) Business Days prior written notice to the Administrator of such payment), Collections held for each Purchaser with respect to such Purchaser's Portion(s) of Investment pursuant to clause (b)(i) or (f) plus the amount of Collections then held for such Purchaser pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, York may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the aggregate of each Purchaser Group's Ratable Share of the Purchasers' Share of the Servicing Fee. On or before the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer by facsimile of the amount of the Discount accrued with respect to each such Portion of Investment during the related Yield Period then ending.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent's Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer's own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group's Ratable Share of the Purchasers' Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Servicer's own account in payment in full of all accrued Servicing Fees, second to each Purchaser Agent ratably according to Discount (for the benefit of the relevant Purchasers within such Purchaser Agent's Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent's Purchaser Group, third to each Purchaser Agent ratably according to the Group Investment of such Purchaser Agent's Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent's Purchaser Group) in payment in full of each Purchaser's Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the first and second clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Discount and Investment, respectively and fourth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to each Purchaser Group ratably (for the benefit of the Purchasers within such Purchaser Group) in accordance with its Ratable Share, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows, but subject to the related Funding Plan for the applicable calendar month:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex E hereto (A) at least two Business Days' prior written notice thereof for any reduction of Aggregate Investment less than or equal to $10,000,000 and (B) at least three Business Days' prior written notice thereof for any reduction of Aggregate Investment greater than $10,000,000 (in each case such notice shall include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to each such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) on the (i) next Settlement Date with respect to any Portions of Investment maintained by such Purchaser immediately following the related current Yield Period or (ii) such other date approved by the Administrator with at least five Business Days prior written notice to the Administrator of such payment, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) only when in fact finally so paid; provided, that:
(A) the amount of any such reduction shall be not less than $1,000,000 for each Purchaser Group and shall be an integral multiple of $100,000, and the entire Aggregate Investment after giving effect to such reduction shall be not less than $50,000,000 and shall be in an integral multiple of $100,000 (unless the Aggregate Investment shall have been reduced to zero); and
(B) with respect to any Portion of Investment, the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Yield Period.
Appears in 1 contract
Sources: Receivables Purchase Agreement (York International Corp /De/)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Administrator (for the benefit of each Purchaser Groupthe Purchasers), out of the percentage of such CollectionsCollections represented by the Purchased Interest, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group the Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Purchasers, the remainder of the percentage of such Collections. Such remainder shall, Collections represented by the Purchased Interest (to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, ); such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestremit such remainder to the Seller or reinvest, but shall set aside and hold in trust for the Administrator (for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,
(iii) if such day is a Termination Day, which amount shall be deposited ratably to each Purchaser Agent’s account set aside, segregate and hold in trust for the Administrator (for the benefit of its related Purchasers the Purchasers, and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) the entire remainder of the Purchasers’ Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the appropriate Person or Persons, such previously set-aside amounts shall, to the extent representing a return on Capital, be applied reinvested in reduction of their respective Capitalaccordance with clause (ii) on the next Weekly Settlement Date day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (w) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (x) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (y) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables plus (z) all other amounts owed by the Seller under this Agreement to the Issuer, the LC Bank, any LC Participant, the Administrator, and any other Indemnified Party or Affected Person.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date, Collections held for the Administrator (for the benefit of the Purchasers) pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Administrator (for the benefit of the Purchasers) pursuant to clauses (b)(ii) and (iii) of Section 1.4(c)1.4; provided, further, that if Arch Sales or an Affiliate thereof is the Facility Servicer, such day is not a Termination Date Day and the Administrator has been extended not notified Arch Sales (or such Affiliate) that such right is revoked, Arch Sales (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.11 clause (b)(i) that represents the Purchasers’ Share of the Servicing Fee. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Purchasers ratably (based on their respective Portions of Capital funded thereby) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if Arch Sales or an Affiliate thereof is not the Servicer, to the Servicer in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second, to the Purchasers ratably (based on their respective Portions of Capital funded thereby) in payment in full of all accrued Discount with respect to each Portion of Capital, third, to the Purchasers ratably (based on their respective Portions of Capital funded thereby) in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), fourth, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants, the amount necessary to cash collateralize the LC Participation Amount until the amount of cash collateral held in such LC Collateral Account equals the aggregate outstanding amount of the LC Participation Amount, fifth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than Arch Sales or an Affiliate thereof) have been paid in full, to the Purchasers ratably (based on their respective Portions of Capital funded thereby), the Administrator and any Purchaser (other Indemnified Party or its Purchaser Agent) has provided notice (an “Exiting Notice”) Affected Person in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder, and sixth, to the AdministratorServicer (if the Servicer is Arch Sales or an Affiliate thereof) in payment in full of the Purchasers’ Share of all accrued Servicing Fees. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Purchasers, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, and (on and after a Termination Day) after the LC Participation Amount has been cash collateralized in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Purchaser’s refusal, Pool Receivable in the amount of such reduction or adjustment and shall immediately pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.111.4;
(ii) if on any day any of the representations or warranties in Sections l(j) or 3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to extend its have received on such day a Collection of such Pool Receivable in full and shall immediately pay any and all such amounts in respect thereof to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its related Committed payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or such Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator or such Purchaser’s, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) Commitment hereunder If at any time the Seller shall wish to cause the reduction of Capital (an but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the Seller shall give the Administrator and the Servicer written notice in substantially the form of Annex C (each, a “Exiting PurchaserPaydown Notice”) then (A) at least two Business Days prior to the date of such reduction for any reduction of Capital less than or equal to $20,000,000 and (B) at least five Business Days prior to the date of such reduction for any reduction of Capital greater than $20,000,000, in each case such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) (A) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction or (B) the Seller shall remit to the Administration Account in immediately available funds an amount equal to the desired amount of such reduction together with accrued and unpaid Discount, and Discount to accrue through the next Settlement Date, with respect to such Capital; and
(iii) the Servicer shall hold such Collections shall not be Reinvested and shall instead be held in trust for the benefit of each of the Purchasers ratably (based on their respective Portions of Capital funded thereby), for payment to the Administrator on the next Settlement Date immediately following the current Settlement Period or such Purchaser other date approved by the Administrator, and applied Capital shall be deemed reduced in accordance with clause (iii) below;the amount to be paid to the Administrator only when in fact finally so paid; provided, that the amount of any such reduction shall be not less than $300,000 and shall be an integral multiple of $100,000 in excess thereof.
Appears in 1 contract
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.. 729565239 15494375 6
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:Servicer in accordance with this Agreement, including Section 1.4(g):
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Groupthe Secured Parties, out of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each the Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Purchasers, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, be automatically reinvested, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestremit such remainder to the Seller or reinvest, but shall set aside and hold in trust for the Administrator (for the benefit of the Purchasers Secured Parties) (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%% (determined as if such Collections set aside had been applied to reduce the Aggregate Capital or LC Participation Amount, as applicable, at such time), which amount shall either (x) be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to Purchasers) or (y) be applied deposited in reduction of their respective Capital) the LC Collateral Account, in each case, as applicable, on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that (x) in the case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (a “Declining Notice”) to its Purchaser Agent and the Facility Termination Date has been extended Administrator that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to Section 1.11 and this clause (ii) or (y) in the case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”) to its Purchaser Agent and the AdministratorAdministrator of its refusal, following any request by the Seller and to extend the Servicer of such Purchaser’s refusal, pursuant to Section 1.11then Facility Termination Date, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”), then in either case set forth in clause (x) then or (y) above, such Purchaser’s ratable share (determined according to outstanding Capital) of Collections shall not be Reinvested reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;
(iii) if such day is a Termination Day (or any day following the provision of a Declining Notice or an Exiting Notice), set aside, segregate and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator), the entire remainder of such Collections (or in the 729565239 15494375 7 case of a Declining Conduit Purchaser or an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Capital; provided, that solely for purposes of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice, as the case may be, until the date such Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Declining Conduit Purchaser’s or Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchasers in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated)); provided, further, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of a Declining Notice or an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and the Majority Purchaser Agents (or, in the case of a Declining Notice or an Exiting Notice, such Declining Notice or Exiting Notice, as the case may be, has been revoked by the related Declining Conduit Purchaser or Exiting Purchaser, respectively, and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on the Aggregate Capital (or the Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably in accordance with each Purchaser’s Capital, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of Declining Notice or Exiting Notice, as the case may be; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (w) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (x) the amounts that are required to be set aside pursuant to clause (i), the provisos to clause (ii) and clause (iii) plus (y) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the Purchaser Agents, the Administrator, and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit into each Purchaser Agent’s account, on each Settlement Date, Collections held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to clause (b)(i) or (f) plus the amount of Collections then held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if Arch Sales or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified Arch Sales (or such Affiliate) that such right is revoked, Arch Sales (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the aggregate of each Purchasers’ Share of the Servicing Fee. On or prior to the last day of each Settlement Period, each Purchaser Agent will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof. 729565239 15494375 8
(d) The Servicer shall distribute the amounts described (and at the times set forth) in clause (c) above as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Capital maintained by such Purchasers and all accrued Fees; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within such Purchaser Agent’s Purchaser Group ratably according to Discount and Fees, respectively, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if Arch Sales or an Affiliate thereof is not the Servicer, to the Servicer in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second, to each Purchaser Agent ratably (based on the aggregate accrued and unpaid Discount and Fees payable to all Purchasers at such time) (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group and all accrued Fees, third, to each Purchaser Agent ratably according to the aggregate of the Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%) (determined as if such Collections had been applied to reduce the Aggregate Capital); it being understood that each Purchaser Agent shall distribute the amounts described in the first, second and third clauses of this Section 1.4(d)(ii) to the Purchasers within such Purchaser Agent’s Purchaser Group ratably according to Discount, Fees and Capital, respectively, fourth, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants (x) the amount necessary to cash collateralize the LC Participation Amount until the amount of cash collateral held in such LC Collateral Account (other than amount representing LC Fee Expectation) equals 100% of the LC Participation Amount (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%) (determined as if such Collections had been applied to reduce the aggregate outstanding amount of the LC Participation Amount) and (y) if such day is a Termination Day of the type described in clause (b) of the definition thereof or a Termination Event is continuing, an amount equal to the LC Fee Expectation at such time (or such portion thereof not currently on deposit in the LC Collateral Account), fifth, if the Aggregate Capital and accrued Aggregate Discount with respect to each Portion of Capital for all Purchaser Groups have been reduced to zero, and the aggregate of the Purchasers’ Share of all accrued Servicing Fees payable to the Servicer (if other than Arch Sales or an Affiliate thereof) have been paid in full, to each Purchaser Agent ratably, based on the amounts payable to each Purchaser in 729565239 15494375 9 such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group), the Administrator and any other Secured Party in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder, and sixth, to the Servicer (if the Servicer is Arch Sales or an Affiliate thereof) in payment in full of the aggregate of the Purchasers’ Share of all accrued Servicing Fees. After the Aggregate Capital, Aggregate Discount, fees payable pursuant to the Fee Letters and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, and (on and after a Termination Day) after an amount equal to 100% of the LC Participation Amount and the LC Fee Expectation has been deposited in the LC Collateral Account, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller, any Affiliate of the Seller, any Originator, the Transferor, the Servicer or any Affiliate of the Servicer, or any setoff, netting of obligations or dispute between the Seller, any Affiliate of the Seller, any Originator, the Transferor, the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and shall immediately pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of the Secured Parties pursuant to Section 1.4;
(ii) if on any day any of the representations or warranties in Sections l(j) or 3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full and shall immediately pay any and all such amounts in respect thereof to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Secured Parties and for application pursuant to Section 1.4;
(iii) except as provided in clause (i) or (ii), or as otherwise required by Applicable Law or the relevant Contract, all Collections of any Receivable shall be applied to the Receivables of the applicable Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim 729565239 15494375 10 against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in substantially the form of Annex C (each, a “Paydown Notice”) (A) at least two Business Days prior to the date of such reduction for any reduction of the Aggregate Capital less than or equal to $20,000,000 and (B) at least five Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $20,000,000, in each case such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) (A) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction or (B) the Seller shall remit to each Purchaser Agent’s account (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group), in immediately available funds, an amount equal to the desired amount of such reduction t
Appears in 1 contract
Settlement Procedures. (a) The collection Collection of the Pool Receivables shall be administered by the Servicer a Collection Agent, in accordance with the terms of Article VI of this Agreement. The Seller shall provide to the Servicer Collection Agent (if other than the Seller) on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Liquidation Day and current computations of the Purchased each Receivable Interest.. Table of Contents
(b) The Servicer Collection Agent shall, on each day on which Collections of Pool Receivables are received by it (provided that if the notices of effectiveness attached to the Deposit Account Agreements have been delivered to the Deposit Banks pursuant to Section 6.03(a), the Collection Agent shall not be permitted to access or deemed received) by withdraw funds in the Seller or Deposit Accounts, and the Servicer:Program Agent shall direct the Deposit Banks to remit funds in accordance with the following clauses):
(i) with respect to each Receivable Interest, set aside and hold in trust (and shalland, at the request of the AdministratorProgram Agent, segregate in a separate account approved by the Administratorsegregate) for the benefit of each Purchaser GroupInvestors or the Banks that hold such Receivable Interest and for the Investor Agents, out of the percentage of such Collections, (x) an amount equal to the Aggregate Discount accrued through Collections represented by such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available thereforReceivable Interest, an amount equal to the aggregate Yield, Fees and Collection Agent Fee (and, during the Term Period, an amount equal to the Excess Interest in respect of each Purchasers’ Share of the Servicing Fee all Cash Secured Advances) accrued through such day for such Receivable Interest and not previously set aside;
(ii) subject with respect to Section 1.4(f)each Receivable Interest, if such day is not a Termination DayLiquidation Day for such Receivable Interest, remit to reinvest with the Seller, ratably, Seller on behalf of each Purchaser Groupthe Investors or the Banks that hold such Receivable Interest the percentage of such Collections represented by such Receivable Interest, to the extent representing a return of Capital, by recomputation of such Receivable Interest pursuant to Section 2.03;
(iii) if such day is a Liquidation Day for any one or more Receivable Interests, set aside and hold in trust (and, at the request of the Program Agent, segregate) for the Investors and/or the Banks that hold such Receivable Interests and for the Investor Agents (x) if such day is a Liquidation Day for less than all of the Receivable Interests, the remainder percentage of such Collections. Such remainder Collections represented by such Receivable Interests, and (y) if such day is a Liquidation Day for all of the Receivable Interests, all of the remaining Collections (but not in excess of the Capital of such Receivable Interests and any other amounts payable by the Seller hereunder); provided that if amounts are set aside and held in trust on any Liquidation Day occurring prior to the Termination Date, and thereafter prior to the next occurring Settlement Date (Capital) the conditions set forth in Section 3.02 are satisfied or waived by the Program Agent and the Investor Agents, such previously set aside amounts shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s of Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together accordance with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account preceding subsection (for the benefit of its related Purchasers and to be applied in reduction of their respective Capitalii) on the next Weekly Settlement Date in accordance with Section 1.4(c)day of such subsequent satisfaction or waiver of conditions; provided, further, that if such day is a Liquidation Day for one or more Receivable Interests solely by reason of the Facility designation by the Investor Agent for an Investor of a Termination Date for a Receivable Interest pursuant to clause (i)(a) of the definition of Termination Date (and no other event or condition qualifying as a Liquidation Day has been extended occurred), then the Collection Agent shall periodically notify such Investor Agent of the amounts set aside and held in trust pursuant to this clause (iii) on account of such Receivable Interests (which notice shall be given at such times as the Collection Agent and such Investor Agent may agree, but no less frequently than weekly), the Banks in such Investor Agent’s Group shall make periodic purchases of the Receivable Interests from the Seller having initial Capital equal to the amounts so set aside and held in trust, the Seller hereby directs such Banks to pay the proceeds of such purchases to the applicable Investor Agent’s Account, for application to the reduction of the outstanding Capital on such Receivable Interests of such Investor, and the amounts so set aside and held in trust shall be paid by the Collection Agent to the Seller on account of the purchase price of the Receivable Interests so purchased by such Banks; and Table of Contents
(iv) during such times as amounts are required to be reinvested in accordance with the foregoing subsection (ii) or the provisos to subsection (iii), release to the Seller for its own account any Collections in excess both of such amounts and of the amounts that are required to be set aside pursuant to subsection (i) above.
(c) On each Settlement Date (Yield and Fees), the Collection Agent shall deposit into the Investor Agent’s Account of each Investor Agent Collections held for such Investor Agent and/or the Investors or the Banks in its Group pursuant to Section 1.11 and any Purchaser (or its Purchaser Agent2.04(b) has provided notice (an “Exiting Notice”) that relate to the AdministratorReceivable Interests owned by such Investors and Banks. In addition, during the Revolving Period, on each Settlement Date (Capital) following delivery of a Seller Report which shows that the Percentage Factor on the last day of the applicable reporting period was greater than the Maximum Percentage Factor, and on each Business Day thereafter until such condition no longer exists, the Collection Agent shall deposit into the Investor Agent’s Account of each Investor Agent Collections set aside for such Investor Agent and/or the Investors or the Banks in its Group pursuant to clause (iii) of Section 2.04(b); provided that the aggregate amount deposited pursuant to this sentence with respect to any Seller Report shall not exceed an amount such that, after giving effect to the application of such amount to the reduction of Capital with respect to the Receivable Interests shown in that Seller Report, the Percentage Factor is equal to the Maximum Percentage Factor. Notwithstanding the preceding sentence, at any time during the Revolving Period when a Non-Pro-Rata Allocation exists and the Servicer Collection Agent is depositing Collections to the Investor Agent’s Accounts which are to be used to reduce Capital, the Collection Agent shall remit such Collections first to the Investor Agent for the CAFCO Group, to the extent necessary to eliminate such Non-Pro-Rata Allocation, and then ratably to the Investor Agents, in proportion to the Capital of Receivable Interests (excluding L/C Receivable Interests) held by the Investor and the Banks in each Investor Agent’s Group. On each Settlement Date (Capital) on which Collections are held for the Investors or the Banks pursuant to clause (iii) of Section 2.04(b), after giving effect to any deposits to be made on such Purchaserdate pursuant to the two preceding sentences of this Section 2.04(c), the Collection Agent shall deposit into the Investor Agent’s refusal, Account of each Investor Agent Collections held for such Investor Agent and/or the Investors or the Banks in its Group pursuant to Section 1.112.04(b) that relate to the Receivable Interests owned by such Investors and Banks. Table of Contents
(d) Upon receipt of funds deposited into the Investor Agent’s Account, the relevant Investor Agent shall distribute them as follows:
(i) if such distribution occurs on a day that is not a Liquidation Day, first to the Investors, the Banks and, during the Term Period, the Term-Out Banks in its Group that hold the relevant Receivable Interest in the ratable payment in full of all accrued Yield and Excess Interest in respect of all Cash Secured Advances (pursuant to the last sentence of Section 2.15) and to such Investor Agent as payment in full of all Fees, and then to the Collection Agent in payment in full of all accrued Collection Agent Fee payable by the Investors, the Banks and the Term-Out Banks in its Group;
(ii) if such distribution occurs on a Liquidation Day, to extend the extent such Investor Agent is then holding funds deposited pursuant to the second sentence of Section 2.04(c), to the Investors or the Banks in its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) Group that hold the relevant Receivable Interest in reduction of Capital and then such Collections shall not be Reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below, provided, that if any L/C Receivable Interests are then outstanding and held by any Bank in such Group, such funds shall be applied first to the reduction of Capital of all Receivable Interests of such Group other than L/C Receivable Interests for which no unpaid Reimbursement Obligation is outstanding, and if the Capital of all such Receivable Interests shall be reduced to zero, any additional funds shall be deposited to the L/C Collateral Account, to cash collateralize the Seller’s contingent reimbursement obligations with respect to Letters of Credit;
(iii) if such distribution occurs on a Liquidation Day, after any payments required in accordance with clause (ii) above, first to such Investor Agent in payment of any amounts owed by the Seller to such Investor Agent (or, in the case of CNAI, the Program Agent) pursuant to Section 11.04(a) in connection with out-of-pocket costs and expenses incurred by such Investor Agent (or, in the case of CNAI, the Program Agent), second to the Collection Agent (if the Collection Agent is not the Seller or an Affiliate of the Seller) in payment in full of all accrued Collection Agent Fee, third to the Investors, the Banks and/or Term-Out Banks in its Group that hold the relevant Receivable Interest and to such Investor Agent in the ratable payment in full of all accrued Yield and Excess Interest in respect of all Cash Secured Advances and accrued Fees and Liquidation Fee, fourth to such Investors and/or Banks in reduction to zero of all Capital of all Receivable Interests of such Group other than L/C Receivable Interests for which no unpaid Reimbursement Obligation is outstanding, fifth to the L/C Collateral Account, to cash collateralize the Seller’s contingent reimbursement obligations with respect to Letters of Credit, until the amount in the L/C Collateral Account equals the aggregate outstanding Capital of all L/C Receivable Interests, sixth to the Term-Out Banks in reduction to zero of the principal amount of all Cash Secured Advances remaining after application of the Term-Out Bank Collateral in accordance with Section 2.17(d), seventh to such Investors, Banks or such Investor Agent in payment of any other amounts owed by the Seller hereunder or any other Transaction Document which have not been paid pursuant to clauses first through sixth above, and eighth to the Collection Agent (if the Collection Agent is the Seller or an Affiliate of the Seller) in payment in full of all accrued Collection Agent Fee.
Appears in 1 contract
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the AdministratorAdministrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the AdministratorAdministrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital Investment and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate CapitalInvestment, ratably, according to each Purchaser’s CapitalInvestment, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestreinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the AdministratorAdministrator (with the consent or at the direction of the Majority Purchasers), segregate in a separate account approved by the AdministratorAdministrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if in the Facility Termination Date has been extended pursuant to Section 1.11 and case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.111.10, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) ), then such Collections shall not be Reinvested reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below,
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser, and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of Exiting Notice, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(v) Amounts set aside or distributed pursuant to this Section 1.4(b) shall be based on the Servicer’s best estimates; provided, however, that the Servicer shall be fully responsible and liable for any inaccuracies in such estimating and shall immediately correct any such inaccuracies upon discovery thereof.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into each applicable Purchaser’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date, Collections held for each such Purchaser with respect to such Purchaser’s Portion(s) of Investment pursuant to clause (b)(i) or (f) plus the amount of Collections then held for such Purchaser pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if Airgas or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified Airgas (or such Affiliate) that such right is revoked, Airgas (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Servicing Fee (less the Seller’s Share thereof). On or before the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer by facsimile of the amount of the Discount accrued with respect to each such Portion of Investment during the related Yield Period then ending.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first, to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group), ratably according to the Discount accrued and unpaid for each Purchaser, in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within such Purchaser Agent’s Purchaser Group ratably according to Discount on the Investment, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if Airgas or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees owing to such Servicer, second, to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group), ratably according to the accrued and unpaid Discount for each Purchaser, all accrued Discount and fees (other than Servicing Fees) with respect to each Investment funded or maintained by Purchasers within such Purchaser Agent’s Purchaser Group, third, to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group), ratably according to the aggregate of the Investment of each Purchaser, in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second and third clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to accrued and unpaid Discount on the Investment and the Investment, respectively, of each such Purchaser, fourth, [reserved], fifth, [reserved], sixth, to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Agent’s Purchaser Group), the Administrator and any other Indemnified Party or Affected Person within such Purchaser Agent’s Purchaser Group, ratably in accordance with the amounts due thereto, and any other amounts owed thereto by the Seller or Servicer hereunder, and seventh, to the Servicer’s own account (if the Servicer is Airgas or an Affiliate thereof) in payment in full of all accrued Servicing Fees. With respect to both clauses (i) and (ii) above, after the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, rebate, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Sections 1(g), (n), (q) or (v) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clauses (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Event of Bankruptcy) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) except as provided below, the Seller shall give the Administrator, each Purchaser Agent and the Servicer (A) at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment less than or equal to $30,000,000 in the form of Annex F and (B) at least five Business Days’ prior written notice thereof for any reduction of Aggregate Investment greater than $30,000,000 (in each case such notice shall include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to each such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) on the next Settlement Date with respect to any Investment maintained by such Purchaser, and, the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) only when in fact finally so paid; provided, that:
(A) the amount of any such reduction shall not be less than $100,000 for each Purchaser Group and shall be an integral multiple of $100,000, and the entire Aggregate Investment after giving effect to such reduction shall not be less than $50,000,000 and shall be in an integral of $1,000,000 in excess thereof;
(B) (w) if a Termination Event or Unmatured Termination Event exists and is continuing (or would exist and be continuing after giving effect thereto), the amount of any such reduction shall be applied to reduce the Investment of each Purchaser (ratably according to its Investment), (y) the amount of any such reduction shall not be less than $1,000,000 for each Purchaser Group and shall be an integral multiple of $500,000 for each Purchaser Group and (z) after giving effect to any such reduction, the entire Aggregate Investment shall not be less than $50,000,000 and shall be in an integral multiple of $1,000,000;
(C) with respect to any Portion of Investment, the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Yield Period; and
(D) with respect to any Portion of Investment funded by Victory’s Purchaser Group such reduction shall occur either (i) upon 20 days prior written to the Victory Agent or (ii) on the maturity date of Victory’s Notes or other financing source funding such Portion of Investment.
Appears in 1 contract
Settlement Procedures. (a) The collection Collection of the Pool Receivables shall be administered by the Servicer Collection Agent in accordance with the terms of this Agreement. The Seller shall provide to the Servicer Collection Agent on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Liquidation Day or Provisional Liquidation Day and current computations of the Purchased each Receivable Interest.
(b) The Servicer Collection Agent shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicerit with respect to any Receivable Interest owned by a Purchaser:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Groupsuch Purchaser, out of the percentage of such CollectionsCollections represented by such Receivable Interest, (x) an amount equal to such Purchaser’s Yield and Pro Rata Share of the Aggregate Discount Collection Agent Fee and fees payable pursuant to the Fee Letter, if any, accrued through such day for each Portion of Capital such Receivable Interest and not previously set aside; provided, (y) an amount equal that notwithstanding the preceding clause, unless the Administrative Agent shall have given notice at the direction of the Required Purchasers to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through contrary, such day, and (z) amounts may be commingled with the Collection Agent’s other funds prior to their payment to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not neither a Termination Liquidation Day nor a Provisional Liquidation Day nor an Optional Reduction Day nor a Mandatory Reduction Day, remit to the Seller, ratably, reinvest on behalf of each such Purchaser Group, (such reinvestment to be deemed a Purchase of a Receivable Interest by such Purchaser) the remainder of such percentage of Collections. Such , to the extent representing a return of Capital, by recomputation of such Receivable Interest pursuant to Section 2.03;
(iii) if such day is a Liquidation Day or a Provisional Liquidation Day, refrain from making reinvestments and set aside and hold in trust for such Purchaser the entire remainder of such percentage of Collections; provided, that amounts set aside and held in trust on any Provisional Liquidation Day that is subsequently determined not to be a Liquidation Day thereupon shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s of Capital, be automatically reinvested in Pool Receivablesaccordance with the preceding subsection (ii);
(iv) if such day is an Optional Reduction Day, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit Purchaser the entire remainder of such percentage of Collections or, if the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion remainder of such Collections exceeds the remaining amount of the Optional Reduction Amount, the portion of the remainder of such Collections equal to such remaining amount of the Optional Reduction Amount; provided, that, together notwithstanding the preceding clause, unless the Administrative Agent shall have given notice at the direction of the Required Purchasers to the contrary, such amounts may be commingled with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Collection Agent’s account (for other funds prior to their payment to the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c)Purchasers; provided, further, that if a Downgrade Event has occurred and is continuing, such notice may be given by the Facility Termination Date has been extended Administrative Agent in its sole discretion or at the direction of any Purchaser;
(v) if such day is a Mandatory Reduction Day, to the extent not set aside and held in the Agent’s Account pursuant to Section 1.11 2.04(e), set aside and any hold in trust for the Purchaser (the entire remainder of such percentage of Collections, or its Purchaser Agent) has provided if the remainder of such Collections exceeds the remaining amount of the Mandatory Reduction Amount for such day, the portion of the remainder of such Collections equal to such remaining amount of the Mandatory Reduction Amount; provided, that, notwithstanding the preceding clause, unless the Administrative Agent shall have given notice (an “Exiting Notice”) at the direction of the Required Purchasers to the Administratorcontrary, such amounts may be commingled with the Collection Agent’s other funds prior to their payment to the Purchasers; provided, further, that if a Downgrade Event has occurred and is continuing, such notice may be given by the Administrative Agent in its sole discretion or at the direction of any Purchaser; and
(vi) release to the Seller for its own account any Collections in excess of such amounts allocated pursuant to subsections (i) through (v) above.
(c) The Collection Agent shall deposit into an account designated by each Purchaser, on each Settlement Date, unless the Required Purchasers, in their sole discretion, require more frequent deposits, all amounts held by the Collection Agent for each Purchaser in accordance with Section 2.04(b), unless deposited earlier as provided in the next succeeding sentence; provided, however, if Collections have been commingled with the Collection Agent’s other funds prior to their payment to the Purchasers as permitted by the terms of this Agreement, any deposits made pursuant to the preceding clause shall be made by the Collection Agent from and to the Servicer extent of the Collections with respect to a Receivable Interest owned by such Purchaser. If a Liquidation Day or a Provisional Liquidation Day has occurred and is continuing, all amounts held by the Collection Agent for each Purchaser in accordance with Section 2.04(b) shall be deposited on the first Business Day following receipt by the Collection Agent into an account designated by such Purchaser. The aggregate amount so deposited with respect to a Receivable Interest owned by a Purchaser shall not exceed the sum of such Purchaser’s refusalCapital of, pursuant and accrued Yield and Pro Rata Share of the Collection Agent Fee, if any, on such Receivable Interest plus the aggregate of any other amounts then owed by the Seller to Section 1.11such Purchaser hereunder. If the amounts so deposited are insufficient to pay in full all amounts due to such Purchaser hereunder, such amounts shall be applied in the following order of priority (whether or not such funds are sufficient to extend its pay in full all such amounts): first to the Collection Agent (if other than Georgia-Pacific or its related Committed designee) in payment of all accrued and unpaid Collection Agent Fee, if any, second to such Purchaser in payment in full of all accrued and unpaid Yield, third to such Purchaser in reduction to zero of the Aggregate Capital of such Purchaser’s, fourth to such Purchaser in payment of any other amounts owed by the Seller to such Purchaser under this Agreement, fifth to the Administrative Agent in payment of amounts owed by the Seller to the Administrative Agent under this Agreement and sixth to the Collection Agent (if Georgia-Pacific or its designee). After the Capital and Yield with respect to a Receivable Interest, and any other amounts payable by the Seller to the Purchasers or the Administrative Agent hereunder, have been paid in full, all additional Collections with respect to such Receivable Interest shall be paid to the Seller for its own account.
(d) Commitment hereunder For the purposes of this Section 2.04:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods, merchandise or services, or any cash discount or other adjustment made by the Seller or an “Exiting Purchaser”Originator, or any right of setoff is exercised by the Obligor thereunder, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) then if on any day either (w) any of the representations or warranties contained in Sections 4.01(h) or 4.01(n) are no longer true with respect to any Pool Receivable, (x) the Seller shall fail to perform or observe any term, covenant or agreement contained in Section 5.01(d), or (y) the Seller or any Originator or the Collection Agent (if Georgia-Pacific or an Affiliate thereof) shall extend, amend or otherwise modify the terms of any Pool Receivable, or amend, modify or waive the terms or conditions of the Contract under which such Pool Receivable arises in a manner which materially and adversely affects the collectibility of such Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in subsection (i) or (ii) of this Section 2.04(d), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent any Purchaser shall be required for any reason to pay over to an Obligor 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, such Purchaser shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(e) If the Collection Agent shall be required to segregate and deposit Collections to the Agent’s Account in accordance with Section 6.02(b):
(i) so long as no Event of Termination, Liquidation Day or Mandatory Reduction Day has occurred and is continuing, the Collection Agent shall be permitted to withdraw amounts from the Agent’s Account and, on each day, apply all Collections so withdrawn from the Agent’s Account in accordance with Section 2.04(b);
(ii) if an Event of Termination or a Liquidation Day has occurred and is continuing, the Collection Agent shall not be Reinvested permitted to withdraw any amounts from the Agent’s Account unless and until such Event of Termination or Liquidation Day is no longer continuing, and amounts on deposit in the Agent’s Account shall instead be held in trust for the benefit of such allocated and paid to each Purchaser (based on its Pro Rata Share), and applied by such Purchaser, on each day in accordance with clause Section 2.04(c); and
(iii) below;if a Mandatory Reduction Day has occurred and is continuing (and no Event of Termination or Liquidation Day has occurred and is continuing), all Collections on deposit in the Agent’s Account in excess of the Mandatory Reduction Amount of all of the Purchasers shall be applied as provided in Section 2.04(b) and, on Friday of each week, if such day is a Mandatory Reduction Day, the Collection Agent shall (and if the Collection Agent does not do so, the Administrative Agent shall, at the direction of any Purchaser) immediately cause to be to remitted to each Purchaser such Purchaser’s Mandatory Reduction Amount from Collections on deposit in the Agent’s Account. Amounts on deposit in the Agent’s Account shall remain uninvested at all times.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Georgia Pacific Corp)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request of the AdministratorAdministrative Agent, segregate in a separate account approved designated by the AdministratorAdministrative 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 6.03 are satisfied on such date, the Servicer may (A) release to the Seller from such Collections 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 Purchase and Sale 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 Settlement Date, the Servicer (or, following its assumption of control of the Collection Accounts, the Administrative Agent) shall, distribute such Collections thatin the following order of priority:
(i) first, together with to the other Collections set aside pursuant Servicer for the payment of the accrued Servicing Fees payable through the end of the most recently-ended Yield Period;
(ii) second, to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably Administrative Agent for distribution to each Purchaser Agent’s account and other Purchaser Party (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) ratably, based on the next Weekly Settlement Date in accordance with Section 1.4(camount then due and owing); provided, furtherall accrued and unpaid Yield, that if the Facility Termination Date has been extended pursuant Fees and Breakage Fees due to Section 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust for the benefit of such Purchaser and applied other Purchaser Party (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in accordance with clause (iiirespect of such payments) belowthrough the end of the most recently-ended Yield Period;
Appears in 1 contract
Sources: Receivables Purchase Agreement (Owens & Minor Inc/Va/)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the sum of (w) the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (x) an amount equal to the Fees accrued and unpaid through such day, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set asideaside and (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the Purchaser Agents, the Administrator, and any other Indemnified Party or Affected Person;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Purchasers, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratablybe automatically reinvested, ratably according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if if, after giving effect to any such reinvestment, (x) the Purchased Interest would exceed 100%, or (y) the Aggregate Capital would exceed the Purchase Limit then in effect, then the Servicer shall not Reinvestremit such remainder to the Seller or reinvest, but shall set aside and hold in trust for the Administrator (for the benefit of the Purchasers Purchasers) (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%% or cause the Aggregate Capital not to exceed the Purchase Limit, as the case may be (determined as if such Collections set aside had been applied to reduce the Aggregate Capital at such time), which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers Purchasers) for distribution and to be applied in reduction of their respective Capital) application on the next Weekly Settlement Date in accordance with Section 1.4(c1.4(d); provided, further, that if (x) in the Facility Termination Date has been extended pursuant to Section 1.11 and case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (or a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.111.12, to extend its (or its related Committed Purchaser’s) Commitment the then-scheduled Facility Termination Date hereunder (an “Exiting Purchaser”) then in either case set forth in subclauses (x) or (y), above, such Collections shall not be Reinvested reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below; it being understood and agreed that the foregoing shall not limit any obligation of any Committed Purchaser in a Declining Conduit Purchaser’s Purchaser Group to make purchases and reinvestments hereunder;
(iii) if such day is a Termination Day (or any day following the provision of a Declining Notice or an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of such Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser an amount equal to such Purchaser’s ratable share of such Collections based on its Capital; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice, as the case may be, until the date such Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Declining Conduit Purchaser’s or Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated)); and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (w) amounts required to be reinvested in accordance with clause (ii) plus (x) the amounts that are required to be set aside pursuant to clause (i) above, pursuant to the proviso to clause (ii) above and pursuant to clause (iii) above, plus (y) the Seller’s Share of the Servicing Fee accrued and unpaid through such day.
(c) On each Settlement Date, the Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit into the account specified by each Purchaser Agent Collections held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to Section 1.4(b)(i) or 1.4(f) plus the amount of Collections then held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to Sections 1.4(b)(ii) and 1.4(b)(iii); provided, that if TransDigm or an Affiliate thereof is the Servicer and such day is not a Termination Day, TransDigm (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of the Purchasers’ Share of the Servicing Fee. On or prior to each Settlement Date, each Purchaser Agent will notify the Servicer by electronic mail of the amount of Discount accrued with respect to each Portion of Capital during such related Settlement Period
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c) on each Settlement Date, as follows:
(i) if such Settlement Date is not a Termination Day:
(A) first, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to Section 1.4(b)(i) and has not retained such amounts pursuant to Section 1.4(c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate Purchasers’ Share of the accrued Servicing Fees so set aside; and
(B) second, to each Purchaser Agent ratably according to the Discount and Fees accrued during such Settlement Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Capital maintained by such Purchasers and all such accrued Fees owing to such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and Fees, respectively; and
(ii) if such Settlement Date is a Termination Day:
(A) first, to the Servicer (if the Servicer is not TransDigm of an Affiliate thereof), in payment in full of the Purchasers’ Share of all accrued Servicing Fees;
(B) second to each Purchaser Agent ratably (based on the aggregate accrued and unpaid Discount and Fees payable to all Purchasers at such time) (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group and all accrued Fees;
(C) third to each Purchaser Agent ratably according to the aggregate of the Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Capital; it being understood that each Purchaser Agent shall distribute the amounts described in the first, second and third clauses of this Section l.4(d)(ii) to the Purchasers within such Purchaser Agent’s Purchaser Group ratably according to Discount, Fees and Capital, respectively; and
(D) fourth, if the Aggregate Capital and accrued Aggregate Discount with respect to each Portion of Capital for all Purchaser Groups have been reduced to zero, and the aggregate of the Purchasers’ Share of all accrued Servicing Fees payable to the Servicer have been paid in full, to each Purchaser Agent ratably, based on the remaining amounts, if any, payable to each Purchaser in such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder; and
(E) fifth, to the Servicer (if the Servicer is TransDigm or an Affiliate thereof) in payment in full of the aggregate of the Purchasers’ Share of all accrued Servicing Fees. After the Aggregate Capital, Aggregate Discount, Fees and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or cancelled as a result of any defective, rejected, returned, or any revision, cancellation, allowance, rebate, discount or other adjustment (other than as a result of discharge in bankruptcy with respect to such Obligor) made by the Seller or any Affiliate of the Seller, or by the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and shall (i) if such day is not a Termination Day, hold any and all such amounts in trust for the benefit of the Purchasers and their assigns and, on the following Settlement Date, apply such amounts in accordance with this Section 1.4 or (ii) if such day is a Termination Day, immediately pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4;
(ii) if on any day any of the representations or warranties in Sections l(j) or 3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full and shall immediately pay the amount of such deemed Collection to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to this Section 1.4 (Collections deemed to have been received pursuant to clause (i) or (ii) of this paragraph (e) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) except for Deemed Collections applied to specific Receivables pursuant clause (i) or (ii) or as may be otherwise required by Applicable Law or by the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator and each Purchaser Agent written notice in the form of Annex E (each, a “Paydown Notice”) at least two Business Days prior to the date of such reduction and each such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the amount of such proposed reduction specified in the Paydown Notice; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Capital, for payment to each such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) on the next Settlement Date (or such other date as agreed to by the Administrator and Seller) with respect to any Portions of Capital maintained by such Purchaser immediately following the related current Settlement Period, and the Aggregate Capital (together with the Capital of any related Purchaser) shall be deemed reduced in the amount to be paid to such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) only when in fact finally so paid; provided, that:
(A) the amount of any such reduction shall be not less than $1,000,000 for each Purchaser Group and shall be an integral multiple of $100,000 in excess thereof, and unless reduced to zero, the entire Aggregate Capital after giving effect to such reduction shall be not less than $1,000,000; and
(B) with respect to any Portion of Capital, the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude on the following Settlement Date.
Appears in 1 contract
Sources: Receivables Purchase Agreement (TransDigm Group INC)
Settlement Procedures. (a) The collection So long as the Administrative Agent has not taken exclusive control of the Pool Receivables shall be administered by Collection Accounts, the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the Administrative Agent, for the benefit of the Purchasers Secured Parties (and shallor, at if so requested by the request of the AdministratorAdministrative Agent, segregate in a separate account approved designated by the AdministratorAdministrative 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 Lock-Box or Collection Account; provided, however, that so long as the Administrative Agent has not taken exclusive control of the Collection Accounts and 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 or pursuant to Section 8.03(c), a “Release”); provided, however, that the amount so released to the Seller by the Servicer on any day shall not exceed the Maximum Release Amount, and any Release following the Administrative Agent’s assumption of exclusive control of the Collection Accounts shall be made pursuant to Section 8.03(c). On each Settlement Date, the Servicer (so long as the Administrative Agent has not taken exclusive control of the Collection Accounts) shall distribute such Collections that(or, together with following its assumption of exclusive control of the Collection Accounts, the Administrative Agent shall distribute all Collections then on deposit in the Cash Dominion Administration Accounts) in the following order of priority:
(i) first, to the Servicer for the payment of all unpaid Servicing Fees accrued up to (but not including) such Settlement Datethrough the end of the most recently-ended Yield Period;
(ii) second, to each Purchaser and other Collections set aside Purchaser Party (ratably, based on the amount then due and owing), (w) all unpaid Yield accrued on such Purchaser’s Capital up to (but not including) such Settlement Datethrough the end of the most recently-ended Yield Period, (x) all unpaid Fees accrued up to (but not including) such Settlement Datethrough the end of the most recently-ended Yield Period or otherwise due and payable pursuant to this paragraphthe applicable Fee Letter, shall (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 such payments;
(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 Capital Coverage Amount Deficit exists on such date, 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 Purchased Interest Capital Coverage Amount Deficit to 100%zero ($0);
(B) on and after the occurrence of the Termination Date, which 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 each 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 2.02(d), to the 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 Secured 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;
(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. Amounts payable pursuant to each of clauses first through fourth 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. 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) 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), shall be paid or distributed to such Purchaser Party.
(c) 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 deposited ratably deemed not to each Purchaser Agenthave been so received but rather to have been retained by the Seller and, accordingly, the Administrative Agent or such other Secured 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 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 account 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 Collection Account or as otherwise directed by the Administrative Agent at such time, for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended Purchaser Parties for application pursuant to Section 1.11 and any Purchaser 3.01(a), an amount equal to (or its Purchaser Agentx) has provided notice (an “Exiting Notice”) if such reduction occurs prior to the AdministratorTermination Date and no Event of Default or Potential Default has occurred and is continuing, the lesser of (I) the 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 or Potential Default has occurred and is continuing, the sum of all deemed Collections with respect to such reduction (Collections deemed to have been received pursuant to this Section 3.01(d)(i) are hereinafter sometimes referred to as “Dilution”);
(ii) if (A) any representation or warranty in Section 6.01 is not true with respect to any Pool Receivable at the time made or (B) any Receivable included in any Pool 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 day a Collection of such Pool Receivable’s Outstanding Balance in full, and the Servicer of Seller shall within two (2) Business Days pay to a Collection Account or as otherwise directed by the Administrative Agent at such Purchaser’s refusaltime, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust for the benefit of the Purchaser Parties for application pursuant to Section 3.01(a), an amount equal to (x) if such Purchaser breach occurs prior to the Termination Date and applied in accordance no Event of Default or Potential Default has occurred and is continuing, the lesser of (I) the sum of all deemed Collections with clause 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 or Potential 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”);
(iii) below;except as provided in clauses (i) or (ii) above or otherwise required by applicable Law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the 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 received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Fortrea Holdings Inc.)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any the Facility Termination Day Date and current computations of the Purchased InterestInterest (and the components thereof).
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the AdministratorAdministrator after the occurrence of an Unmatured Termination Event or Termination Event, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the sum of (w) the Aggregate Discount accrued through such day for each Portion portion of Capital and not previously set aside, (yx) an amount equal to the fees set forth in each Purchaser Group Fee Letter owing to the Purchasers and the Administrator accrued and unpaid through such day, and (zy) all other amounts then due and payable by the Seller under this Agreement to the extent funds are available thereforPurchasers, an amount equal to the aggregate of each Purchasers’ Share of Purchaser Agents, the Servicing Fee accrued through such day Administrator, and not previously set asideany other Indemnified Party or Affected Person;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder the Collections not set aside pursuant to clause (b)(i) of this Section 1.4 shall, to the extent representing a return on the Aggregate of Capital, ratably, be automatically Reinvested according to each Purchaser’s Capital, be automatically reinvested Capital in Pool Receivables, and in the associated Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that that, if after giving effect to any such Reinvestment, (x) the Purchased Interest would exceed 100%% or (y) the Aggregate Capital would exceed the Purchase Limit then in effect, then the Servicer shall not so Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to (x) reduce the Purchased Interest to 100%% and (y) cause the Aggregate Capital to not exceed the Purchase Limit, as applicable, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c);
(iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator), for the benefit of each Purchaser Group, the entire remainder of the Collections not set aside pursuant to clause (b)(i) of this Section 1.4; provided, furtherthat if amounts are so set aside and held in trust on any Termination Day, then such previously set-aside amounts shall, to the extent representing a return on Capital, be Reinvested in accordance with clause (ii) above on the next day to occur that is not a Termination Day (if any); and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (w) amounts required to be Reinvested in accordance with clause (ii) above plus (x) the amounts that are required to be set aside pursuant to clause (i) above, pursuant to the proviso to clause (ii) above and pursuant to clause (iii) above, plus (y) the Seller’s Servicing Fees accrued and unpaid through such day.
(c) On the fifth (5th) Business Day of each calendar month, each Purchaser Agent will notify the Servicer by electronic mail of the amount of Discount accrued with respect to each portion of Capital during the previous Settlement Period. On each Settlement Date, the Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit into the account specified by each Purchaser Agent Collections held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to Section 1.4(b)(i) or 1.4(f) plus the amount of Collections then held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to Sections 1.4(b)(ii) and 1.4(b)(iii); provided, however, that if the Facility Termination Date has been extended Information Package delivered by the Servicer indicates a Purchased Interest in excess of 100%, then the amount of Collections not Reinvested pursuant to Section 1.11 and any clause (b)(ii) shall be deposited into the account for each Purchaser (or its maintained by the applicable Purchaser Agent) has provided notice (an “Exiting Notice”) Agent as may be designated from time to the Administrator, time by such Purchaser Agent to the Seller and the Servicer on the date such Information Package is received and on each day thereafter to the extent the Purchased Interest exceeds 100%.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c) on each Settlement Date as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%: first, to the Servicer, the Servicing Fee, to the extent accrued and unpaid through the last day of the immediately preceding Settlement Period until such accrued fees are paid in full, to the extent not otherwise netted out from Collections by the Servicer; second, to the extent such amounts are then payable hereunder, to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Agent’s Purchaser Group), in payment in full of, all accrued Discount with respect to each portion of Capital maintained by such Purchasers (it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each Purchaser’s Capital); third, ratably to the Purchaser Agents and the Administrator, all accrued fees (including program fees) owing to the Purchasers (it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each such Purchaser’s refusalCapital) and to the Administrator; fourth, if the Servicer has set aside amounts in respect of a reduction of the Aggregate Capital pursuant to Section 1.11clause (f) below, to extend each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Agent’s Purchaser Group), in payment in full of the related reduction in Aggregate Capital; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each such Purchaser’s Capital; and fifth, to the Seller for its own account.
(ii) if such distribution occurs on a Termination Day or on any day on which the Purchased Interest exceeds 100%: first, to the Servicer, the Servicing Fee, to the extent accrued and unpaid through the last day of the immediately preceding Settlement Period until such accrued fees are paid in full, to the extent not otherwise netted out from Collections by the Servicer; second, to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Agent’s Purchaser Group), in payment in full of, all accrued Discount with respect to each portion of Capital maintained by such Purchasers (it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each Purchaser’s Capital); third, ratably to the Purchaser Agents and the Administrator, such accrued fees owing to the Purchasers (it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each Purchaser’s Capital) and to the Administrator; fourth, to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Agent’s Purchaser Group), in payment in full of each Purchaser’s Capital (or if such day is not a Termination Day but is a day on which the Purchased Interest exceeds 100%, the amount necessary to reduce the Purchased Interest to 100%) it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its related Committed Purchaser Group ratably in accordance with each Purchaser’s) Commitment ’s Capital; fifth, if the Aggregate Capital and accrued Aggregate Discount and fees with respect thereto have been reduced to zero (or the Aggregate Capital has been reduced to the extent necessary to cause the Purchased Interest not to exceed 100%), and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Purchasers, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other Aggregate Unpaids owed thereto by the Seller hereunder (other than contingent indemnification obligations); and sixth, to pay all outstanding amounts owing under the Company Note; and sixthseventh, to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or canceled as a result of (x) without duplication, any revision, cancellation, allowance, rebate, dilution, discount, or other adjustment (including, without limitation, an extension or adjustment made pursuant to the applicable Credit and Collection Guidelines) made by the Seller, the Servicer or any Originator, including in connection with the cancellation and reissuance of any Pool Receivable, or (y) any set-off or dispute between the Seller or any Originator and an Obligor (any such reduction or cancellation, a “Exiting PurchaserDilution”), in any such case, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction, adjustment, cancellation or dispute (which, in the case of a cancellation and reissuance of any Pool Receivable, shall be an amount equal to the full Outstanding Balance of the cancelled Pool Receivable) then and shall, subject to Section 1.4(e)(v), (x) if such Collections shall day is not be Reinvested a Termination Day, hold any and shall instead be held all such amounts in trust for the benefit of each Purchaser Group and, on the following Settlement Date, apply such Purchaser and applied amounts in accordance with clause this Section 1.4 or (y) if such day is a Termination Day, within two (2) Business Days of such reduction or adjustment, pay from its own funds any and all such amounts in respect thereof to a Collection Account or the Concentration Account for the benefit of each Purchaser Group and for application pursuant to this Section 1.4;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III is not true with respect to any Pool Receivable a Collection of the full Outstanding Balance of such Pool Receivable, the Seller shall, subject to Section 1.4(e)(v), (1) if such day is not a Termination Day, hold any and all such amounts in trust for the benefit of each Purchaser Group and, on the following Settlement Date, apply such amounts in accordance with this Section 1.4 or (2) if such day is a Termination Day, within two (2) Business Days, pay any and all such amounts from its own funds in respect thereof to a Collection Account or the Concentration Account for the benefit of each Purchaser Group and for application pursuant to this Section 1.4 (Collections deemed to have been received pursuant to Sections 1.4(e)(i) or (ii) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) belowexcept as provided in clause (i) or (ii), or as otherwise required by applicable Law, all Collections received from an Obligor of any Pool Receivable shall be applied to the Pool Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables;
(iv) if and to the extent the Administrator or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or such Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator or such Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof;
(v) if at any time before the Facility Termination Date the Seller is deemed to have received any Deemed Collection under Sections 1.4(e)(i) or (ii), so long as no Termination Day then exists, the Seller may satisfy its obligation to deliver the amount of such Deemed Collections to a Collection Account or the Concentration Account by instead recalculating (or being deemed to have recalculated) the Purchased Interest by decreasing the Net Receivables Pool Balance by the amount of such Deemed Collections, so long as such adjustment does not cause the Purchased Interest to exceed 100%; and
(vi) if at any time the Seller satisfies in full its obligations hereunder with respect to Deemed Collections (whether by payment to a Collection Account or the Concentration Account and/or by reducing the Net Receivables Pool Balance), the Administrator, on behalf of the Purchasers, shall re-convey to the Seller the Pool Receivable(s) to which such Deemed Collection relates, without recourse and without any representation or warranty except that such Pool Receivable is free and clear of liens, security interests, charges and encumbrances created by the Administrator or any such Purchaser, and thereafter the Seller shall not sell any interest in such Receivable to the Administrator on behalf of the Purchasers.
(f) At any time, the Seller may elect to cause a reduction of Capital in accordance with this clause (f). The Seller may do so as follows:
(i) the Seller shall deliver to the Administrator, each Purchaser Agent and the Servicer written notice in substantially the form of Annex C (the “Paydown Notice”) at least two Business Days’ prior to the date of such reduction for any reduction of Aggregate Capital, which notice shall include the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be Reinvested until the amount thereof not so Reinvested shall equal the desired amount of the reduction of Aggregate Capital; and
(iii) the Servicer shall hold (or cause the Seller to set aside and hold) such Collections in trust for each Purchaser, for payment to each Purchaser Agent for the benefit of such Purchaser on the next Settlement Date, and the Aggregate Capital shall be deemed reduced in the amount to be paid to a Purchaser Agent only when in fact finally so paid; provided, that (x) the amount of any such reduction (if not a reduction to zero) shall be not less than $1,000,000 and shall be an integral multiple of $100,000, and the entire Aggregate Capital after giving effect to such reduction shall be not less than $10,000,000 (unless the entire Aggregate Capital shall have been reduced to zero); and (y) the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Settlement Period.
Appears in 1 contract
Settlement Procedures. (a) The collection Collection of the Pool Receivables shall be administered by the Servicer in accordance with the terms of this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Run-off Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shalland, at the request of the AdministratorAdministrative Agent, segregate in a separate account approved by the Administratorsegregate) for the benefit of each Purchaser GroupParallel Purchasers, out of the percentage of such CollectionsCollections represented by the Purchased Interest, (x) first an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set asideaside and second, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, if Owens & Minor Medical, Inc. or an Affiliate thereof Sell▇▇ ▇▇ not the Servicer, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee determined in accordance with Section 4.6 accrued through such day for the Purchased Interest and not previously set aside;; and
(ii) subject to Section 1.4(f), if such day is not a Termination Run-off Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Parallel Purchasers according to the Percentage of each, the remainder of the Percentage of such Collections. Such remainder shall, represented by the Purchased Interest, to the extent representing a return on the Aggregate of Capital, ratably, according to each Purchaser’s Capital, ; such Collections shall be automatically reinvested in Pool Receivables, and in the Related Security, Security and Collections and other proceeds with respect thereto (each such reinvestmentthereto, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%shall be automatically recomputed pursuant to Section 1.3;
(iii) if such day is a Run-off Day, then the Servicer shall not Reinvest(x) set aside, but shall set aside segregate and hold in trust for the benefit Parallel Purchasers according to the Percentage of each the entire remainder of the Purchasers (Percentage of the Collections represented by the Purchased Interest; provided that if amounts are set aside and held in trust on any Run-off Day and thereafter, the conditions set forth in Section 2 of Exhibit I are satisfied or are waived by the Administrative Agent, such previously set aside amounts shall, at to the request extent representing a return of Capital, be reinvested in accordance with the preceding paragraph (ii) on the day of such subsequent satisfaction or waiver of conditions; and (y) transfer the Seller's share of the Administrator, segregate in a separate account approved Collections represented by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account the Seller; and
(for the benefit of its related Purchasers and iv) during such times as amounts are required to be applied in reduction of their respective Capital) on the next Weekly Settlement Date reinvested in accordance with the foregoing paragraph (ii) or the proviso to paragraph (iii), release to the Seller (subject to Section 1.4(f)) any Collections in excess of (x) such amounts and (y) the amounts that are required to be deposited pursuant to paragraph (i) above.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrative Agent), on the last day of each Settlement Period relating to a Portion of Capital (or at such other times as the Administrative Agent shall require), Collections held in the Administration Account for the Parallel Purchasers pursuant to Section 1.4(b)(i) or Section 1.4(f) with respect to such Portion of Capital and the lesser of (x) the amount of Collections then held for the Parallel Purchasers pursuant to Section 1.4(b)(iii) and (y) such Portion of Capital.
(d) Upon receipt of funds deposited into the Administration Account pursuant to Section 1.4(c); provided, furtherwith respect to any Portion of Capital, the Administrative Agent shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that if the Facility Termination Date has been extended pursuant is not a Run-off Day, first to Section 1.11 each Parallel Purchaser in payment in full of its Percentage of all accrued Discount and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) then to the AdministratorServicer (payable in arrears on each Month End Date) in payment in full of all accrued Servicing Fees so set aside with respect to such Portion of Capital; and
(ii) if such distribution occurs on a Run-off Day, the Seller and the Servicer first to each Parallel Purchaser in payment in full of such Purchaser’s refusalits Percentage of all accrued Discount, pursuant second to Section 1.11, to extend each Parallel Purchaser in payment in full of its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust for the benefit Percentage of such Purchaser and applied in accordance with clause (iii) below;Capital,
Appears in 1 contract
Sources: Parallel Asset Purchase Agreement (Owens & Minor Inc/Va/)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestreinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective CapitalPurchasers) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if (x) in the Facility Termination Date has been extended pursuant to Section 1.11 and case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (or a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s either its refusal, pursuant to Section 1.111.22, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then in either case (x) or (y), above, such Collections shall not be Reinvested reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii), below.
(iii) if such day is a Termination Day (or any day following the provision of a Declining Notice or an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of such Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser an amount equal to such Purchaser’s ratable share of such Collections based on its Capital; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice, as the case may be, until the date such Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Declining Conduit Purchaser’s or Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of a Declining Notice or an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and the Majority Purchaser Agents (or in the case of a Declining Notice or an Exiting Notice, such Declining Notice or Exiting Notice, as the case may be, has been revoked by the related Declining Conduit Purchaser or Exiting Purchaser, respectively and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Capital (or the Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably in accordance with each Purchaser’s Capital, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of Declining Notice or Exiting Notice, as the case may be, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess, if any, of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into each applicable Purchaser Agent’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date (for any Portion of Investment), Collections held for each Purchaser with respect to such Purchaser’s Portion(s) of Capital pursuant to clause (b)(i) or (f), plus the amount of Collections then held for the related Purchasers pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if C▇▇▇▇▇ Tire or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified C▇▇▇▇▇ Tire (or such Affiliate) that such right is revoked, C▇▇▇▇▇ Tire (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the aggregate of each Purchasers’ Share of the Servicing Fee.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and Fees (other than Servicing Fees) with respect to each Portion of Capital maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first if C▇▇▇▇▇ Tire or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second to each Purchaser Agent ratably (based on the aggregate accrued and unpaid Discount and Fees (other than Servicing Fees) payable to all Purchasers at such time) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third to each Purchaser Agent ratably according to the aggregate of the Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%) (determined as if such Collections had been applied to reduce the Aggregate Capital); it being understood that each Purchaser Agent shall distribute the amounts described in the first and second clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Discount and Capital, respectively, fourth, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants (x) the amount necessary to cash collateralize the LC Participation Amount until the amount of cash collateral held in such LC Collateral Account (other than amount representing LC Fee Expectation) equals 100% of the aggregate outstanding amount of the LC Participation Amount) and (y) if such day is a Termination Day of the type described in clause (b) of the definition thereof or a Termination Event is continuing, an amount equal to the LC Fee Expectation at such time (or such portion thereof not currently on deposit in the LC Collateral Account); fifth, if the Aggregate Capital and accrued Aggregate Discount with respect to each Portion of Capital for all Purchaser Groups have been reduced to zero, and the Purchasers’ Share of all accrued Servicing Fees payable to the Servicer (if other than C▇▇▇▇▇ Tire or an Affiliate thereof) have been paid in full, to each Purchaser Group ratably, based on the amounts payable to each (for the benefit of the Purchasers within such Purchaser Group), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder and, sixth, to the Servicer’s own account (if the Servicer is C▇▇▇▇▇ Tire or an Affiliate thereof) in payment in full of the aggregate of the Purchasers’ Share of all accrued Servicing Fees. After the Aggregate Capital, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, and (on and after a Termination Day) after an amount equal to 100% of the LC Participation Amount and the LC Fee Expectation has been deposited in the LC Collateral Account, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and shall immediately pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4;
(ii) if on any day any of the representations or warranties in Sections 1(j) or 3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full and shall immediately pay any and all such amounts to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to this Section 1.4 (Collections deemed to have been received pursuant to clause (i) or (ii) of this paragraph (e) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) except as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex E (each, a “Paydown Notice”) not later than 2:00 p.m. New York City time on the date that is one Business Day prior to the date of such reduction for any reduction of the Aggregate Capital, and each such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Capital, for payment to each such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) on the next Settlement Date (or such other date as agreed to by the Administrator) with respect to any Portions of Capital maintained by such Purchaser immediately following the related current Yield Period, and the Aggregate Capital (together with the Capital of any related Purchaser) shall be deemed reduced in the amount to be paid to such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) only when in fact finally so paid; provided, that:
(A) the amount of any such reduction shall be not less than $100,000 for each Purchaser Group and shall be an integral multiple of $100,000; and
(B) with respect to any Portion of Capital, the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Yield Period.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Cooper Tire & Rubber Co)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside identify, track, and hold hold, or cause to be held, in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Groupthe Purchasers, out of such Collections, (x) an amount equal to the sum of (x) the Aggregate Discount accrued through such day for each Portion of Capital and not previously set asideidentified, tracked and held in trust, (y) an amount equal to the fees set forth in each Purchaser Group the Fee Letter accrued and unpaid through such dayday and not previously identified, tracked and held in trust, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each the Purchasers’ Share of the Servicing Fee accrued through such day and not previously set asideidentified, tracked and held in trust;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Purchasers, the remainder of such Collections. Such remainder shall, to the extent representing a return on of the Aggregate Capital, be automatically reinvested, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if if, after giving effect to any such reinvestment, (x) the Purchased Interest would exceed 100%% or (y) the Aggregate Capital plus the Aggregate LC Amount would exceed the Purchase Limit then in effect, then the Servicer shall not Reinvestremit such remainder to the Seller or reinvest, but shall set aside identify, track and hold hold, or cause to be held, in trust for the Administrator (for the benefit of the Purchasers for distribution on the next Settlement Date pursuant to Section 1.4(d)(i)(C) or 1.4(d)(ii), as applicable) (and following the occurrence of a Termination Event or during the continuance of an Unmatured Termination Event shall, at the request of the Administrator, Administrators segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside identified and tracked pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%% or cause the Aggregate Capital plus the Aggregate LC Amount to not exceed the Purchase Limit, which amount shall as the case may be deposited ratably (determined as if such Collections set aside had been applied to each Purchaser Agent’s account (for reduce the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on Aggregate Capital and/or the next Weekly Settlement Date in accordance with Section 1.4(cAggregate LC Amount at such time); provided, further, that if the Facility Scheduled Termination Date has been extended by one or more Purchaser Groups pursuant to Section 1.11 and any 1.2(e) and, on such day, there are one or more Exiting Purchaser Groups with Adjusted Exposures greater than zero (or its each such day, a “Non-Extension Day”), then each Exiting Purchaser AgentGroup’s ratable share (determined based upon the respective Adjusted Exposures of the various Purchaser Groups) has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Exiting Purchaser and applied in accordance with Groups pursuant to clause (iii) below;
(iii) if such day is a Termination Day (or any Non-Extension Day), identify, track and hold, or cause to be held, in trust for the benefit of all Purchasers (in the case of a Termination Day) or Exiting Purchaser Groups (in the case of a Non-Extension Day that is not a Termination Day), as applicable (and following the occurrence of a Termination Event or during the continuance of an Unmatured Termination Event shall, at the request of the Administrators segregate in a separate account approved by the Administrator), the entire remainder of such Collections (or in the case of any Non-Extension Day that is not also a Termination Day, an amount equal to the Exiting Purchaser Groups’ ratable share of such Collections based on their respective Adjusted Exposures; provided, however, that solely for purposes of determining such Exiting Purchaser Groups’ ratable share of such Collections, such Exiting Purchaser Groups’ Adjusted Exposure shall be deemed to remain constant from the first Non-Extension Day until the date such Exiting Purchaser Groups’ Adjusted Exposures have been reduced to zero; it being understood that if a Termination Day occurs following a Non-Extension Day, such Exiting Purchaser Groups’ Adjusted Exposures shall be recalculated taking into account amounts received by such Exiting Purchaser Groups in respect of this parenthetical and, thereafter, Collections shall be set aside for all Purchasers ratably in respect of their respective Adjusted Exposures (as recalculated)); and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (w) amounts required to be reinvested in accordance with clause (ii) plus (x) the amounts that are required to be set aside pursuant to clause (i) above, pursuant to the proviso to clause (ii) above and pursuant to clause (iii) above, plus (y) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the Purchaser Agents, the Administrator, and any other Indemnified Party or Affected Person.
(c) On each Settlement Date, the Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit into the account specified by each Purchaser Agent all Collections held for the Administrator, the Purchaser Agents and the Purchasers pursuant to Section 1.4(b) and 1.4(f); provided, that if Celanese International or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified Celanese International (or such Affiliate) that such right is revoked, Celanese International (or such Affiliate), as Servicer, may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of the Purchasers’ Share of the Servicing Fee. On or prior to the fifth (5th) Business Day of each calendar month following the end of the Settlement Period, each Purchaser Agent will notify the Servicer telephonically, by electronic mail or by facsimile of the amount of Discount accrued with respect to each Portion of Capital during the most recently ended calendar month.
(d) The Servicer shall distribute the Collections held for the Administrator, the Purchaser Agents and the Purchasers described in Section 1.4(c) in the following order of priority:
(i) if such distribution occurs on a day that is not a Termination Day:
(A) first, to the Purchaser Agents ratably according to the Discount and Fees accrued during such Settlement Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Capital maintained by such Purchasers and all such accrued Fees; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within such Purchaser Agent’s Purchaser Group ratably according to Discount and Fees owing, respectively;
(B) second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to Section 1.4(b)(i) and has not retained such amounts pursuant to Section 1.4(c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside;
(C) third, if any such Collections are then being held in trust for the benefit of the Purchasers pursuant to Section 1.4(b)(ii) or 1.4(f), such Collections shall be distributed to the Purchaser Agents ratably (based on the Adjusted Exposures of their respective Purchaser Groups at such time) (for the benefit of the relevant Purchasers in their respective Purchaser Groups); provided, that each Purchaser Agent shall apply any amount distributed to it pursuant to this clause in the following order of priority: (x) first, in payment in full of the outstanding Capital of the Purchasers in its Purchaser Group, and (y) second, to the LC Collateral Account for the benefit of any LC Bank in its Purchaser Group to cash collateralize such LC Bank’s outstanding Letters of Credit until the amount held in the LC Collateral Account equals 100% of the aggregate amount available to be drawn under such Letters of Credit plus the amount of all Expected LC Fees with respect thereto; and
(D) fourth, if any such Collections are then being held in trust for the benefit of an Exiting Purchaser Group pursuant to Section 1.4(b)(iii), such Collections shall be distributed to the Purchaser Agent for such Existing Purchaser Group (for the benefit of the Purchasers in such Exiting Purchaser Group); provided, that such Purchaser Agent shall apply any amount distributed to it pursuant to this clause in the following order of priority: (x) first, in payment in full of the outstanding Capital of the Purchasers in such Exiting Purchaser Group, and (y) second, to the LC Collateral Account for the benefit of any LC Bank in such Exiting Purchaser Group to cash collateralize such LC Bank’s outstanding Letters of Credit until the amount held in the LC Collateral Account equals 100% of the aggregate amount available to be drawn under such Letters of Credit plus the amount of all Expected LC Fees with respect thereto; and
(ii) if such distribution occurs on a Termination Day:
(A) first, to the Servicer (if other than Celanese International or an Affiliate thereof), in payment in full of the Purchasers’ Share of all accrued Servicing Fees;
(B) second, to the Purchaser Agents ratably (based on the aggregate accrued and unpaid Discount and Fees payable to their respective Purchaser Groups at such time) (for the benefit of the relevant Purchasers in their respective Purchaser Groups) in payment in full of all accrued Discount with respect to each Portion of Capital funded or maintained by the Purchasers and all accrued Fees;
(C) third, to the Purchaser Agents ratably (based on the Adjusted Exposures of their respective Purchaser Groups at such time) (for the benefit of the relevant Purchasers in their respective Purchaser Groups) in an amount, for each Purchaser Group, equal to such Purchaser Group’s Aggregate Exposure; provided, that each Purchaser Agent shall apply any amount distributed to it pursuant to this clause in the following order of priority: (x) first, in payment in full of the outstanding Capital of the Purchasers in its Purchaser Group, and (y) second, to the LC Collateral Account for the benefit of any LC Bank in its Purchaser Group to cash collateralize such LC Bank’s outstanding Letters of Credit until the amount held in the LC Collateral Account equals 100% of the aggregate amount available to be drawn under such Letters of Credit plus the amount of all Expected LC Fees with respect thereto;
(D) fourth, if the Adjusted Exposures of all Purchaser Groups have been reduced to zero, all accrued Discount and Fees have been paid in full and the aggregate of the Purchasers’ Share of all accrued Servicing Fees payable to the Servicer (if other than Celanese International or an Affiliate thereof) have been paid in full, to each Purchaser Agent ratably, based on the remaining amounts, if any, payable to each Purchaser in such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder; and
(E) fifth, to the Servicer (if the Servicer is Celanese International or an Affiliate thereof) in payment in full of the aggregate of the Purchasers’ Share of all accrued Servicing Fees. After the Adjusted Exposures of all Purchaser Groups have been reduced to zero, all accrued Discount, Fees and Servicing Fees have been paid in full and all other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder and under the other Transaction Documents have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is either (A) reduced or canceled as a result of (I) any defective, rejected, returned goods or services, any cash or other discount, or any failure by an Originator to deliver any goods or perform any services or otherwise perform under the underlying Contract or invoice, (II) any change in or cancellation of any of the terms of such Contract or invoice or any other adjustment by the Originator, the Servicer or the Seller which reduces the amount payable by the Obligor on the related Receivable, (III) any rebates, warranties, allowances or charge-backs or (IV) any setoff or credit in respect of any claim by the Obligor thereof (whether such claim arises out of the same or a related transaction or an unrelated transaction) or (B) subject to any specific dispute, offset, counterclaim or defense whatsoever (except the discharge in bankruptcy of the Obligor thereof), in either case, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction, adjustment, cancellation or dispute and shall, (x) prior to the Termination Date, hold any and all such amounts in trust for the benefit of the Purchasers and their assigns and, on the following Settlement Date, apply such amounts in accordance with this Section 1.4 or (y) on or after the Termination Date, within two (2) Business Days of such reduction or adjustment, pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4;
(ii) if (x) the representation and warranty in Section l(j) of Exhibit III is not true on the day such representation and warranty is made or deemed made or (y) if any of the representations or warranties in Section 1(r) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received a Collection of the full Outstanding Balance of such Pool Receivable existing on the date of such designation, as applicable, and shall, within two (2) Business Days of the Seller or the Servicer having knowledge or notice of any such inaccuracy, pay the amount of such deemed Collection to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers for application pursuant to Section 1.4(b) (Collections deemed to have been received pursuant to Section 1.4(e)(i) or (ii) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) except as provided in Section 1.4(e)(i) and (ii) or as otherwise required by Applicable Law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates that its payment is to be applied to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause a voluntary reduction (in whole or in part) of the Aggregate Capital, the Seller may do so as follows:
(i) the
Appears in 1 contract
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Groupthe Purchasers, out of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each the Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the SellerSeller (or the Originators on behalf of the Seller to satisfy obligations of the Seller under the Purchase and Sale Agreement), ratably, on behalf of each Purchaser Groupthe Purchasers, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, be automatically reinvested, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, howeverthat if, that if after giving effect to any proposed reinvestment, the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestremit such remainder to the Seller or reinvest, but shall set aside and hold in trust for the Administrator (for the benefit of the Purchasers Purchasers) (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%% (determined as if such Collections set aside had been applied to reduce the Aggregate Capital at such time), which amount shall be deposited to the Administration Account (for the benefit of the Purchasers) (to be ratably distributed to each Purchaser Agent’s account Agent (for the benefit of its related Purchasers and to be applied in reduction of their respective CapitalPurchasers)) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if in the Facility Termination Date has been extended pursuant to Section 1.11 and case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”, which, for the avoidance of doubt shall not have any effect until the then Scheduled Commitment Termination Date) to its Purchaser Agent and the AdministratorAdministrator of its refusal, following any request by the Seller and to extend the Servicer of such Purchaser’s refusal, pursuant to Section 1.11then Scheduled Commitment Termination Date, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) ), then such Purchaser’s ratable share (determined according to outstanding Capital) of Collections shall not be Reinvested reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below,
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust for the benefit of the Purchasers or Exiting Purchasers, as applicable, (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator), the entire remainder of such Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Capital; provided, that solely for purposes of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Capital shall be deemed to remain constant from the date of the provision of an Exiting Notice, as the case may be, until the date such Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchasers in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated)), and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (w) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (x) the amounts that are required to be set aside pursuant to clause (i), the provisos to clause (ii) and clause (iii) plus (y) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the Purchaser Agents, the Administrator, and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit into the Administration Account, no later than noon (New York time) on each Settlement Date, Collections held for the Purchasers pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Purchasers pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if ▇▇▇▇▇ Corning Sales or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified ▇▇▇▇▇ Corning Sales (or such Affiliate) that such right is revoked, ▇▇▇▇▇ Corning Sales (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Servicing Fee. On or prior to the Business Day immediately preceding each Settlement Date, each Purchaser Agent will notify the Administrator no later than noon (New York time) telephonically, by electronic mail or by facsimile of the amount of Discount accrued with respect to each Portion of Capital during the related Settlement Period or portion thereof and thereafter no later than 5:00 p.m. (New York time) on such day the Administrator will notify the Servicer telephonically, by electronic mail or by facsimile of such amounts.
(d) The Administrator shall distribute the amounts described in clause (c) above promptly following receipt of such funds deposited into the Administration Account (but no later than 5:00 p.m. (New York time)) as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to each Purchaser Agent ratably according to the Discount and Fees accrued during such Settlement Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Capital maintained by such Purchasers and all such accrued Fees; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within such Purchaser Agent’s Purchaser Group ratably according to Discount and Fees, respectively, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, to the Servicer in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second, to each Purchaser Agent ratably (based on the aggregate accrued and unpaid Discount and Fees payable to all Purchasers at such time) (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group and all accrued Fees, third, to each Purchaser Agent ratably according to the aggregate of the Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%) (determined as if such Collections had been applied to reduce the Aggregate Capital); it being understood that each Purchaser Agent shall distribute the amounts described in the first, second and third clauses of this Section 1.4(d)(ii) to the Purchasers within such Purchaser Agent’s Purchaser Group ratably according to Discount, Fees and Capital, respectively, fourth, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants, the amount necessary to cash collateralize the LC Participation Amount until the amount of cash collateral held in such LC Collateral Account equals 100% of the LC Participation Amount (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%) (determined as if such Collections had been applied to reduce the aggregate outstanding amount of the LC Participation Amount), and fifth, if the Aggregate Capital and accrued Aggregate Discount with respect to each Portion of Capital for all Purchaser Groups have been reduced to zero, and the aggregate of the Purchasers’ Share of all accrued Servicing Fees payable to the Servicer have been paid in full, to each Purchaser Agent ratably, based on the amounts payable to each Purchaser in such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder. After the Aggregate Capital, Aggregate Discount, fees payable pursuant to the Fee Letters and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, and (on and after a Termination Day) after an amount equal to 100% of the LC Participation Amount is on deposit in the LC Collateral Account, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and, if such reduction or adjustment (x) causes the Purchased Interest to exceed 100% or (y) occurs after the occurrence of the Facility Termination Date, the Seller shall pay an amount equal to such reduction or adjustment to a Lock-Box Account for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4 within two (2) Business Days of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Sections l(j) or 3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full and, if such breach (x) causes the Purchased Interest to exceed 100% (determined on a pro forma basis after giving effect to such breach and subtraction of the Outstanding Balance of such Pool Receivables related to such breach from the Net Receivables Pool Balance) or (y) occurs after the occurrence of the Facility Termination Date, the Seller shall pay any and all such amounts in respect thereof to an Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4 within two (2) Business Days of knowledge of such breach;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in substantially the form of Annex C (each, a “Paydown Notice”) no later than noon (New York time) on the Business Day prior to the date of such reduction, such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) (A) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction or (B) the Seller shall remit to the Administrator in the Administration Account (for the benefit of the Purchasers), no later than noon (New York time), in immediately available funds, an amount equal to the desired amount of such reduction, and thereafter the Administrator shall remit to each Purchaser Agent’s account (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) such Purchaser Agent’s ratable amount, based on such Purchaser Agent’s Purchasers’ portion of the Aggregate Capital reduced thereby;
(iii) in the case of clause (ii)(A) above, the Servicer shall hold such Collections in trust for the benefit of the Administrator (for the benefit of each Purchaser based on their respective Portions of Capital funded thereby) for payment to the Administrator (for the benefit of each Purchaser) by deposit in the Administration Account on any Business Day designated by the Servicer in consultation with the Seller upon two Business Days’ notice thereof by the Servicer to the Administrator and each Purchaser Agent, and the Aggregate Capital (together with the Capital of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (on behalf of the Purchasers) only when in fact finally so paid; and
(iv) any such amounts owing by the Seller pursuant to Section 1.8 related to such reduction shall be deposited into the Administration Account pursuant to Section 1.4(c) on the Settlement Date immediately following the date of such reduction; provided, that the amount of any such reduction shall be not less than $2,500,000 and shall be an integral multiple of $250,000 in excess thereof. Upon receipt by the Administrator in the Administration Account of any amount paid in reduction of the Aggregate
Appears in 1 contract
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers Secured Parties (or, if so requested by the Administrative Agent at any time that an Event of Default shall have occurred and shall, at the request of the Administratorbe continuing, segregate in a separate account approved designated by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%Administrative Agent, which amount shall be deposited ratably to each Purchaser Agent’s an account (maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date application in accordance with Section 1.4(c)the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Borrowers or received in any Lock-Box, Mail-Box or Collection Account; provided, furtherhowever, that if so long as each of the Facility Termination Date has been extended pursuant to conditions precedent set forth in Section 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) 6.03 are satisfied on such date, the Servicer may release to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then Borrowers from such Collections shall not be Reinvested and shall instead be held in trust the amount (if any) necessary to pay (i) the purchase price for Receivables purchased by the benefit of Borrowers on such Purchaser and applied date in accordance with clause the terms of the applicable Purchase and Sale Agreement or (ii) amounts owing by the Borrowers to the Originators under any Intercompany Loan Agreement (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Collection Accounts, the Administrative Agent) shall, distribute such Collections in the following order of priority:
(i) 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 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 5.03 and 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 amount has not been distributed to such Lender or Credit Party;
(iii) third, as set forth in clause (x), (y) or (z) below;, as applicable:
Appears in 1 contract
Sources: Receivables Financing Agreement (Lamar Media Corp/De)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Groupthe Purchasers, out of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each the Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the SellerSeller (or the Originators on behalf of the Seller to satisfy obligations of the Seller under the Purchase and Sale Agreement), ratably, on behalf of each Purchaser Groupthe Purchasers, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, be automatically reinvested, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, howeverthat if, that if after giving effect to any proposed reinvestment, the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestremit such remainder to the Seller or reinvest, but shall set aside and hold in trust for the Administrator (for the benefit of the Purchasers Purchasers) (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%% (determined as if such Collections set aside had been applied to reduce the Aggregate Capital at such time), which amount shall be deposited ratably to the Administration Account (for the benefit of the Purchasers) (to be ratably, according to the aggregate of the Capital of all Purchasers in each Purchaser Group, distributed to each Purchaser Agent’s account Agent (for the benefit of its related Purchasers and to be applied in reduction of their respective CapitalPurchasers)) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if in the Facility Termination Date has been extended pursuant to Section 1.11 and case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”, which, for the avoidance of doubt shall not have any effect until the then Scheduled Commitment Termination Date) to its Purchaser Agent and the AdministratorAdministrator of its refusal, following any request by the Seller and to extend the Servicer of such Purchaser’s refusal, pursuant to Section 1.11then Scheduled Commitment Termination Date, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) ), then such Purchaser’s ratable share (determined according to outstanding Capital) of Collections shall not be Reinvested reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below,
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust for the benefit of the Purchasers or Exiting Purchasers, as applicable, (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator), the entire remainder of such Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Capital; provided, that solely for purposes of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Capital shall be deemed to remain constant from the date of the provision of an Exiting Notice, as the case may be, until the date such Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchasers in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated)), and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (w) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii), plus (x) the amounts that are required to be set aside pursuant to clause (i), the provisos to clause (ii) and clause (iii), plus (y) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables, plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the Purchaser Agents, the Administrator, and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit into the Administration Account, no later than noon (New York time) on each Settlement Date, Collections held for the Purchasers pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Purchasers pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if ▇▇▇▇▇ Corning Sales or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified ▇▇▇▇▇ Corning Sales (or such Affiliate) that such right is revoked, ▇▇▇▇▇ Corning Sales (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Servicing Fee. On or prior to the Business Day immediately preceding each Settlement Date, each Purchaser Agent will notify the Administrator no later than noon (New York time) telephonically, by electronic mail or by facsimile of the amount of Discount accrued with respect to each Portion of Capital during the related Settlement Period or portion thereof and thereafter no later than 5:00 p.m. (New York time) on such day the Administrator will notify the Servicer telephonically, by electronic mail or by facsimile of such amounts.
(d) The Administrator shall distribute the amounts described in clause (c) above promptly following receipt of such funds deposited into the Administration Account (but no later than 5:00 p.m. (New York time)) as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to each Purchaser Agent ratably according to the Discount and Fees accrued during such Settlement Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Capital maintained by such Purchasers and all such accrued Fees; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within such Purchaser Agent’s Purchaser Group ratably according to Discount and Fees, respectively, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, to the Servicer in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second, to each Purchaser Agent ratably (based on the aggregate accrued and unpaid Discount and Fees payable to all Purchasers at such time) (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group and all accrued Fees, third, to each Purchaser Agent ratably according to the aggregate of the Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%) (determined as if such Collections had been applied to reduce the Aggregate Capital); it being understood that each Purchaser Agent shall distribute the amounts described in the first, second and third clauses of this Section 1.4(d)(ii) to the Purchasers within such Purchaser Agent’s Purchaser Group ratably according to Discount, Fees and Capital, respectively, fourth, to the LC Collateral Account for the ratable benefit of the ▇▇ ▇▇▇▇▇, the amount necessary to cash collateralize the Aggregate LC Participation Amount until the amount of cash collateral held in such LC Collateral Account equals 100% of the Aggregate LC Participation Amount (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%) (determined as if such Collections had been applied to reduce the aggregate outstanding amount of the Aggregate LC Participation Amount), and fifth, if the Aggregate Capital and accrued Aggregate Discount with respect to each Portion of Capital for all Purchaser Groups have been reduced to zero, and the aggregate of the Purchasers’ Share of all accrued Servicing Fees payable to the Servicer have been paid in full, to each Purchaser Agent ratably, based on the amounts payable to each Purchaser in such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder. After the Aggregate Capital, Aggregate Discount, fees payable pursuant to the Fee Letters and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, and (on and after a Termination Day) after an amount equal to 100% of the Aggregate LC Participation Amount is on deposit in the LC Collateral Account, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and, if such reduction or adjustment (x) causes the Purchased Interest to exceed 100% or (y) occurs after the occurrence of the Facility Termination Date, the Seller shall pay an amount equal to such reduction or adjustment to a Lock-Box Account for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4 within two (2) Business Days of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Sections l(j) or 3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full and, if such breach (x) causes the Purchased Interest to exceed 100% (determined on a pro forma basis after giving effect to such breach and subtraction of the Outstanding Balance of such Pool Receivables related to such breach from the Net Receivables Pool Balance) or (y) occurs after the occurrence of the Facility Termination Date, the Seller shall pay any and all such amounts in respect thereof to an Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4 within two (2) Business Days of knowledge of such breach;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in substantially the form of Annex C (each, a “Paydown Notice”) no later than noon (New York time) on the Business Day prior to the date of such reduction, such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) (A) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction or (B) the Seller shall remit to the Administrator in the Administration Account (for the benefit of the Purchasers), no later than noon (New York time), in immediately available funds, an amount equal to the desired amount of such reduction, and thereafter the Administrator shall remit to each Purchaser Agent’s account (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) such Purchaser Agent’s ratable amount, based on such Purchaser Agent’s Purchasers’ portion of the Aggregate Capital reduced thereby;
(iii) in the case of clause (ii)(A) above, the Servicer shall hold such Collections in trust for the benefit of the Administrator (for the benefit of each Purchaser based on their respective Portions of Capital funded thereby) for payment to the Administrator (for the benefit of each Purchaser) by deposit in the Administration Account on any Business Day designated by the Servicer in consultation with the Seller upon two Business Days’ notice thereof by the Servicer to the Administrator and each Purchaser Agent, and the Aggregate Capital (together with the Capital of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (on behalf of the Purchasers) only when in fact finally so paid; and
(iv) any such amounts owing by the Seller pursuant to Section 1.8 related to such reduction shall be deposited into the Administration Account pursuant to Section 1.4(c) on the Settlement Date immediately following the date of such reduction; provided, that the amount of any such reduction shall be not less than $2,500,000 and shall be an integral multiple of $250,000 in excess thereof.
Appears in 1 contract
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers Secured Parties (and shallor, at the request of if so requested by the Administrator, segregate in a separate account approved designated by the Administrator, which shall be an account maintained and controlled by the Administrator unless the Administrator otherwise instructs in its sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Borrower or received in any Lock-Box Account the customer of record of which at the applicable Lock-Box Bank is the Borrower (each such Lock-Box Account, a “Lock-Box Account”); provided, however, that so long as each of the conditions precedent set forth in Section 3 of Exhibit II are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay (i) the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Sale Agreement or (ii) amounts owing by the Borrower to the Originators under the Subordinated Loans made by the Originators (each such release, a “Release”). On each Settlement Date, the Servicer (or, following (x) its assumption of control of the Lock-Box Accounts or (y) its receipt of any amounts payable under any Pool Receivable pursuant to Section 4.4(a), the Administrator) shall, distribute such Collections in the following order of priority:
(i) first, during the continuance of any Event of Default, to the Administrator, for the payment of costs and out-of-pocket expenses payable by the Borrower under Section 6.4(a) to the extent such costs arise from the replacement of the Servicer with any successor Servicer(s), including, without limitation, any upfront charges, ongoing fees, deposits, and transition costs;
(ii) second, to the Servicer for the payment of the accrued Servicing Fees payable to it for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable to it for any prior Interest Period to the extent such amount has not been distributed to the Servicer);
(iii) third, to each Lender and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest and Fees due to such Lender and other Credit Party accrued during the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 1.10 and 3.1 in respect of such payments), plus, if applicable, the amount of any such Interest and Fees (including any additional amounts or indemnified amounts payable under Sections 1.10 and 3.1 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;
(iv) fourth, as set forth in clause (x), (y) or (z) below, as applicable: (x) if such day is not a Termination Day, to the extent that the Coverage Percentage exceeds 100% on such date: (I) first, to the Lenders (ratably, based on the aggregate outstanding Capital of each Lender at such time) for the payment of a portion of the outstanding Aggregate Capital at such Collections thattime, together with the other Collections set aside pursuant in an aggregate amount equal to this paragraph, shall equal the amount necessary to reduce the Purchased Interest Coverage Percentage to 100% and (II) second, to each LC Collateral Account, in reduction of the Aggregate Adjusted LC Participation Amount, in an amount equal to the amount necessary (after giving effect to clause (I) above) to reduce the Coverage Percentage to 100%; (y) if such day is a Termination Day: (I) first, which to each Lender (ratably, based on the amount of 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 and (II) second, to each LC Collateral Account (A) the amount necessary to reduce the Aggregate Adjusted LC Participation Amount to zero ($0) and (B) an amount equal to the LC Fee Expectation at such time; or (z) if such day is not a Termination Day, at the election of the Borrower and in accordance with Section 1.2(b), to the payment of all or any portion of the outstanding Capital of the Lenders at such time (ratably, based on the amount of aggregate outstanding Capital of each Lender at such time);
(v) fifth, to the Credit Parties that are then Exiting Lenders (ratably, based on the amount due and owing at such time), for the payment of all other obligations then due and owing by the Borrower to such Credit Parties;
(vi) sixth, to the Credit Parties, the Affected Persons and the Indemnified Parties (ratably, based on the amount due and owing at such time), for the payment of all other obligations then due and owing by the Borrower to the Credit Parties, the Affected Persons and the Indemnified Parties;
(vii) seventh, the balance, if any, to be paid to the Borrower for its own account; provided, however, that in the event that an Event of Default has occurred and is continuing, no Servicing Fees shall be deposited ratably paid pursuant to each Purchaser clause (ii) above prior to the application of payments pursuant to clauses (iii) through (vi) above.
(b) [Reserved]
(c) All payments or distributions to be made by the Servicer, the Borrower or any other Person to the Lenders (or their respective related Affected Persons and Indemnified Parties) or the LC Bank hereunder shall be paid or distributed to the related Group Agent’s account . The applicable Group Agent shall distribute such amounts to the applicable Lenders, the LC Bank, Affected Persons and the Indemnified Parties ratably.
(d) [Reserved].
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected or returned goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Borrower or any Affiliate of the Borrower, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Borrower or any Affiliate of the Borrower, or the Servicer or any Affiliate of the Servicer and an Obligor (except any such revision, cancellation, allowance, discount or other adjustment made in settlement of such Pool Receivable resulting from the financial inability of the applicable Obligor to pay such Pool Receivable and, in the case of all Pool Receivables, made in accordance with the Credit and Collection Policies), the Borrower shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and shall immediately pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of its related Purchasers the Lenders and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended assigns and for application pursuant to Section 1.11 1.4;
(ii) if on any day it is determined that any of the representations or warranties in Sections 1(j) or 3(a) of Exhibit III was (and at the time of such determination remains) untrue with respect to any Purchaser Pool Receivable at the time a Loan was made with respect to such Pool Receivable, the Borrower shall be deemed to have received on such day a Collection of such Pool Receivable in full and shall immediately pay any and all such amounts to a Lock-Box Account (or its Purchaser Agentas otherwise directed by the Administrator at such time) has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust for the benefit of such Purchaser the Lenders and applied in accordance with their assigns and for application pursuant to this Section 1.4 (Collections deemed to have been received pursuant to clause (i) or (ii) of this paragraph (e) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) below;except as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in a manner consistent with the application and allocation procedures employed by the Servicer at such time; and
(iv) if and to the extent the Administrator, any Group Agent or any Lender shall be required for any reason to pay over to an Obligor (or any trustee, Receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Borrower and, accordingly, such Person shall have a claim against the Borrower for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
Appears in 1 contract
Sources: Receivables Financing Agreement (Cincinnati Bell Inc)
Settlement Procedures. 749336112 22708133
(a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers Secured Parties (and shallor, if so requested by the Administrator (with the consent or at the request direction of the AdministratorMajority Lenders), segregate in a separate account approved designated by the Administrator, which shall be an account maintained and/or controlled by the Administrator unless the Administrator otherwise instructs in its sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are actually received by the Servicer or the Borrower 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 on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay (i) the unpaid purchase price for Receivables purchased by the Borrower as of such date in accordance with the terms of the applicable Sale Agreement or (ii) amounts owing by the Borrower to the Originators under the Company Note (each such release, a “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Lock-Box Accounts, the Administrator) shall, distribute such Collections in the following order of priority:
(i) first, to the Servicer for the payment of the accrued Servicing Fees payable for the immediately preceding Accrual Period (plus, if applicable, the amount of Servicing Fees payable for any prior Accrual 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 Accrual Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage 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 Accrual 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, to the Lenders (ratably, based on the aggregate outstanding Principal of each Lender at such time) for the payment of a portion of the outstanding Aggregate Principal at such Collections thattime, together with the other Collections set aside pursuant in an aggregate amount equal to this paragraph, shall equal the amount necessary to reduce the Purchased Interest Borrowing Base Deficit to 100%zero ($0);
(B) on and after the occurrence of the Termination Date, to each Lender (ratably, based on the aggregate outstanding Principal of each Lender at such time) for the payment in full of the aggregate outstanding Principal of such Lender at such time; or 749336112 22708133
(C) prior to the occurrence of the Termination Date, at the election of the Borrower and in accordance with Section 2.02(d), to the payment of all or any portion of the outstanding Principal of the Lenders at such time (ratably, based on the aggregate outstanding Principal 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, including, without limitation, the payment of any amounts pursuant to a Release.
(b) All payments or distributions to be made by the Servicer, the Borrower and any other Person to the Lenders (or their respective related Affected Persons and the Borrower Indemnified Parties), shall be paid or distributed to the applicable party to which such amounts are owed.
(c) If and to the extent the Administrator, any Credit Party, any Affected Person or any Borrower 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 Insolvency Proceeding) any amount received on its behalf hereunder, such amount shall be deposited ratably deemed not to each Purchaser Agent’s account have been so received but rather to have been retained by the Borrower and, accordingly, the Administrator, such Credit Party, such Affected Person or such Borrower Indemnified Party, as the case may be, shall have a claim against the Borrower for such amount.
(d) For the purposes of this Section 4.01:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Borrower, any Originator, the Servicer or any Affiliate of the Servicer, or any setoff 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 such reduction or adjustment and shall, within two (2) Business Days, pay to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended Credit Parties for application pursuant to Section 1.11 4.01(a), an amount equal to (x) if such reduction or adjustment occurs prior to the Termination Date and no Event of Default has occurred and is continuing, the lesser of (A) the sum of all deemed Collections with respect to such reduction or adjustment and (B) an amount (if any) necessary to eliminate any Purchaser Borrowing Base Deficit that exists at such time and after giving effect to such reduction or adjustment and (y) if such reduction or adjustment 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 in respect thereof; 749336112 22708133
(ii) if on any day any of the representations or warranties in Section 7.01 is not true with respect to any Pool Receivable, the Borrower shall be deemed to have received on such day a Collection of such Pool Receivable in full and shall, within two (2) Business Days, pay to a Lock-Box Account (or its Purchaser Agentas otherwise directed by the Administrator at such time) has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust for the benefit of the Credit Parties for application pursuant to Section 4.01(a), an amount equal to (x) if such Purchaser breach occurs prior to the Termination Date and applied no Event of Default has occurred and is continuing, the lesser of (A) the sum of all deemed Collections with respect to such breach and (B) an amount (if any) necessary to eliminate any Borrowing Base Deficit that exists at such time and after giving effect to such breach 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 in accordance with clause respect thereof (Collections deemed to have been received pursuant to Section 4.01(d)(i) and 4.01(d)(ii) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) below;except as provided in clauses (i) or (ii) above or otherwise required by Applicable Law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Credit Party, any Affected Person or any Borrower Indemnified Party shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Borrower and, accordingly, such Person shall have a claim against the Borrower for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
Appears in 1 contract
Sources: Receivables Financing Agreement (Worthington Industries Inc)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Groupthe Purchasers, out of such Collections, (x) an amount equal to the sum of (i) the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (yii) an amount equal to the fees set forth in each Purchaser Group the Fee Letter Letters accrued and unpaid through such dayday and not previously set aside, and (ziii) to the extent funds are available therefor, an amount equal to the aggregate of each the Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Purchasers, the remainder of such Collections. Such remainder shall, to the extent representing a return on of the Aggregate Capital, be automatically reinvested, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if if, after giving effect to any such reinvestment, (x) the Purchased Interest would exceed 100%, or (y) the Aggregate Capital plus the Adjusted LC Participation Amount would exceed the Purchase Limit then in effect, then the Servicer shall not Reinvestremit such remainder to the Seller or reinvest, but shall set aside and hold in trust for the Administrator (for the benefit of the Purchasers Purchasers) (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%% or cause the Aggregate Capital plus the Adjusted LC Participation Amount not to exceed the Purchase Limit, as the case may be (determined as if such Collections set aside had been applied to reduce the Aggregate Capital and/or the Adjusted LC Participation Amount at such time), which amount shall be deposited ratably to each Purchaser Agent’s account accountdistributed to the Administrator (for the benefit of its related Purchasers relatedthe Purchasers) for distribution and to be applied in reduction of their respective Capital) application on the next Weekly Settlement Date in accordance with Section 1.4(c1.4(d); provided, further, that if in the Facility Termination Date has been extended pursuant to Section 1.11 and case of any Purchaser that has either (or i) provided notice to its Purchaser Agent) has provided notice (an “Exiting Notice”) to Agent and the AdministratorAdministrator of its refusal, following any request by the Seller and to extend the Servicer of such Purchaser’s refusal, pursuant to Section 1.11then-current Scheduled Termination Date, to extend its (or its related Committed Purchaser’s) Commitment hereunder or (ii) otherwise not affirmatively consented to any request by the Seller to extend the then-current Scheduled Termination Date (in either case, an “Exiting Purchaser”) ), then such Purchaser’s ratable share (determined according to outstanding Capital and Pro Rate Share of the Adjusted LC Participation Amount) of Collections shall not be Reinvested reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;
(iii) if such day is a Termination Day (or any Non-Extension Day), set aside, segregate and hold in trust for the benefit of the Purchasers or Exiting Purchasers, as applicable (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator), the entire remainder of such Collections (or in the case of any Non-Extension Day that is not also a Termination Day, an amount equal to the Exiting Purchasers’ ratable share of such Collections based on their respective Capital; provided, however, that solely for purposes of determining such Exiting Purchasers’ ratable share of such Collections, such Exiting Purchasers’ Capital shall be deemed to remain constant from the first Non-Extension Day until the date such Exiting Purchasers’ Capital has been paid in full; it being understood that if a Termination Day occurs following a Non-Extension Day, such Exiting Purchasers’ Capital shall be recalculated taking into account amounts received by such Exiting Purchasers in respect of this parenthetical and, thereafter, Collections shall be set aside for all Purchasers ratably in respect of their respective Capital (as recalculated)); and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (w) amounts required to be reinvested in accordance with clause (ii) plus (x) the amounts that are required to be set aside pursuant to clause (i) above, pursuant to the proviso to clause (ii) above and pursuant to clause (iii) above, plus (y) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the Purchaser Agents, the Administrator, and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by each Purchaser Agent on each Settlement Datein writing by the Administrator, Collections held for such Purchaser Agent (for the benefit of its relatedthe Purchasers) pursuant to Section 1.4(b)(i) or 1.4(f) plus the amount of Collections then held for such Purchaser Agent (for the benefit of its relatedthe Purchasers) pursuant to Sections 1.4(b)(ii) and 1.4(b)(iii); provided, that if Lyondell Chemical or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified Lyondell Chemical (or such Affiliate) that such right is revoked, Lyondell Chemical (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of the Purchasers’ Share of the Servicing Fee. On or prior to the last day of each Settlement Period, each Purchaser Agent will notify the Servicer and the Administrator telephonically, by electronic mail or by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such related Settlement Period.
(d) The Servicer shall distribute the amounts described in Section 1.4(c) as follows:
(i) if such distribution occurs on a day that is not a Termination Day:
(A) first, to the Administrator for distribution to each Purchaser Agent ratably according to the Discount and Fees accrued during such Settlement Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Capital funded or maintained by suchthe Purchasers within such Purchaser Agent’s Purchaser Group and all such accrued Fees; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within such Purchaser Agent’s Purchaser Group ratably according to Discount and Fees, respectively; and
(B) second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to Section 1.4(b)(i) and has not retained such amounts pursuant to Section 1.4(c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside; and
(ii) if such distribution occurs on a Termination Day:
(A) first, to the Servicer (if other than Lyondell Chemical or an Affiliate thereof), in payment in full of the Purchasers’ Share of all accrued Servicing Fees;
(B) second, to the Administrator for distribution to each Purchaser Agent ratably (based on the aggregate accrued and unpaid Discount and Fees payable to all Purchasers at such time) (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group and all such accrued Fees;
(C) third, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Capital; it being understood that each Purchaser Agent shall distribute thesuch amounts described in the first, second and third clauses of this Section 1.4(d)(ii) to the Purchasers within such Purchaser Agent’s Purchaser Group ratably according to Discount, Fees and Capital, respectively;
(D) fourth, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants, the amount necessary to cash collateralize the LC Participation Amount until the amount of cash collateral held in such LC Collateral Account equals 100% of the LC Participation Amount plus the aggregate amount of all LC Participation Fees and LC Fronting Fees to accrue thereon through the scheduled expiration of the related Letters of Credit;
(E) fifth, if the Aggregate Capital and accrued Aggregate Discount with respect to each Portion of Capital for all Purchaser Groups have been reduced to zero, and the aggregate of the Purchasers’ Share of all accrued Servicing Fees payable to the Servicer (if other than Lyondell Chemical or an Affiliate thereof) have been paid in full, to the Administrator for distribution to each Purchaser Agent ratably, based on the remaining amounts, if any, payable to each Purchaser in such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder; and
(F) sixth, to the Servicer (if the Servicer is Lyondell Chemical or an Affiliate thereof) in payment in full of the aggregate of the Purchasers’ Share of all accrued Servicing Fees. After the Aggregate Capital, Aggregate Discount, fees payable pursuant to the Fee Letters and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, and (on and after a Termination Day) after an amount equal to 100% of the LC Participation Amount and the Expected LC Fees is on deposit in the LC Collateral Account, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Notwithstanding anything to the contrary set forth in this Section 1.4, the Administrator shall have no obligation to distribute or pay any amount under this Section 1.4 except to the extent actually received by the Administrator. Additionally, each Purchaser Agent hereby covenants and agrees to provide timely and accurate responses to each of the Administrator’s requests for information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is either (A) reduced or canceled as a result of (I) any defective, rejected, returned goods or services, any cash or other discount, or any failure by an Originator to deliver any goods or perform any services or otherwise perform under the underlying Contract or invoice, (II) any change in or cancellation of any of the terms of such contract or invoice or any other adjustment by the Originator, the Servicer or the Seller which reduces the amount payable by the Obligor on the related Receivable, (III) any rebates, warranties, allowances or charge-backs or (IV) any setoff or credit in respect of any claim by the Obligor thereof (whether such claim arises out of the same or a related transaction or an unrelated transaction) or (B) subject to any specific dispute, offset, counterclaim or defense whatsoever (except the discharge in bankruptcy of the Obligor thereof), in either case, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction, adjustment, cancellation or dispute and shall, subject to Section 1.4(e)(v), (x) prior to the Termination Date, hold any and all such amounts in trust for the benefit of the Purchasers and their assigns and, on the following Settlement Date, apply such amounts in accordance with this Section 1.4 or (y) on or after the Termination Date, within two (2) Business Days of such reduction or adjustment, pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4;
(ii) if (x) the representation and warranty in Section l(j) of Exhibit III is not true on the day such representation and warranty is made or deemed made, (y) if any of the representations or warranties in Section 1(r) of Exhibit III is not true with respect to any Pool Receivable or (z) the Obligor with respect to any Pool Receivable is designated an Excluded Obligor in accordance with Section 4.2(b) on any day, the Seller shall be deemed to have received a Collection of the full Outstanding Balance of such Pool Receivable or such Excluded Receivable existing on the date of such designation, as applicable, and shall, within two (2) Business Days of such designation or of the Seller or the Servicer having knowledge or notice of any such inaccuracy, as applicable, subject to Section 1.4(e)(v), pay the amount of such deemed Collection to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4(b) (Collections deemed to have been received pursuant to Section 1.4(e)(i) or (ii) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) except as provided in Section 1.4(e)(i) and (ii) or as otherwise required by Applicable Law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates that its payment is to be applied to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(v) so long as no Termination Day then exists, the Seller may satisfy its obligation to deliver the amount of such Deemed Collections to a Lock-Box Account by instead recalculating (or being deemed to have recalculated) the Purchased Interest by decreasing the Net Receivables Pool Balance by the amount of such Deemed Collections, but only so long as the Purchased Interest does not exceed 100% after giving effect to such adjustment.
(f) If at any time the Seller shall wish to cause a voluntary reduction (in whole or in part) of the Aggregate Capital, the Seller may do so as follows:
(i) the Seller shall give the Administrator and each Purchaser Agent written notice in substantially the form of
Appears in 1 contract
Sources: Receivables Purchase Agreement (LyondellBasell Industries N.V.)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this AgreementAgreement and applicable regulatory law. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestreinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective CapitalPurchasers) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if (x) in the Facility Termination Date has been extended pursuant to Section 1.11 and case of any Purchaser (or its that is a Conduit Purchaser, if such Conduit Purchaser Agent) has provided notice (an a “Exiting Declining Notice”) to its Purchaser Agent, the Administrator, the Seller and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser’s refusal, Conduit Purchaser to be reinvested pursuant to Section 1.11this clause (ii), and (y) in the case of any Purchaser with respect to extend its (or its related Committed Purchaser’s) Commitment hereunder which the Purchaser Termination Date has occurred (an “Exiting Purchaser”) then in either case (x) or (y), above, such Collections shall not be Reinvested reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii), below.
(iii) if such day is a Termination Day (or any day following the provision of a Declining Notice or the occurrence of the Purchaser Termination Date with respect to any Purchaser), set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser an amount equal to such Declining Conduit Purchaser’s or Exiting Purchaser’s ratable share of such Collections based on its Capital; provided, that solely for the purpose of determining such Declining Conduit Purchaser’s or Exiting Purchaser’s ratable share of such Collections, such Declining Conduit Purchaser’s or Exiting Purchaser’s Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or the occurrence of the Purchaser Termination Date with respect to such Purchaser, as the case may be, until the date such Declining Conduit Purchaser’s or Exiting Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Declining Conduit Purchaser’s or Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day (or any day following the provision of a Declining Notice or the occurrence of the Purchaser Termination Date with respect to any Purchaser) and, thereafter, the conditions set forth in Section 2 of Exhibit II or giving rise to the related Facility Termination Date are satisfied or cured or waived by the Majority Purchaser Agents (or in the case of a Declining Notice or the occurrence of the Purchaser Termination Date with respect to any Purchaser, such Declining Notice or occurrence of the Purchaser Termination Date with respect to such Purchaser, as the case may be, has been revoked by the related Declining Conduit Purchaser or waived by the related Exiting Purchaser, as the case may be, and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Capital (or the Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably in accordance with each Purchaser’s Capital, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction, cure or -5- waiver of conditions or revocation of Declining Notice or waiver of such Purchaser Termination Date, as the case may be, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess, if any, of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into each applicable Purchaser Agent’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date in the case of Collections held for each Purchaser with respect to such Purchaser’s Portion(s) of Capital pursuant to clause (b)(i) or paragraph (f), plus the amount of Collections then held for the related Purchasers pursuant to clauses (b)(ii) and (iii) of this Section 1.4; provided, that if Triumph or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified Triumph (or such Affiliate) that such right is revoked, Triumph (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the aggregate Purchasers’ Share of the Servicing Fee.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day, first to each Purchaser Agent ratably according to the Discount accrued during the Yield Period ending on the Settlement Date on which such Discount is distributed (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued and unpaid Discount and Fees (other than Servicing Fees) with respect to each Portion of Capital maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount, and second, if the Servicer has set aside amounts in respect of the Purchasers’ Share of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to paragraph (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day, first if Triumph or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second to each Purchaser Agent ratably (based on the aggregate accrued and unpaid Discount and Fees (other than Servicing Fees) payable to all Purchasers at such time) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third to each Purchaser Agent ratably according to the aggregate of the Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the first and second clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Discount and Capital, respectively, fourth, if the Aggregate Capital and accrued Aggregate Discount with respect to each Portion of Capital for all Purchaser Groups have been reduced to zero, and the Purchasers’ Share of all accrued Servicing Fees payable to the Servicer (if other than Triumph or an Affiliate thereof) have been paid in full, to each Purchaser Group ratably, based on the amounts then due and payable to each (for the benefit of the Purchasers within such Purchaser Group), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts then due and payable thereto by the Seller or Servicer hereunder and, fifth, to the Servicer’s own account (if the Servicer is Triumph or an Affiliate thereof) in payment in full of the aggregate of the Purchasers’ Share of all accrued Servicing Fees. After the Aggregate Capital, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator, the Structuring Agent or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and shall immediately pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of the Purchasers and their assigns and for application pursuant to this Section 1.4;
(ii) if on any day any of the representations or warranties in Sections 1(j) or 3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full and shall immediately pay any and all such amounts to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to this Section 1.4 (Collections deemed to have been received pursuant to clause (i) or (ii) of this paragraph (e) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) except as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex E (each, a “Paydown Notice”) (A) at least two Business Days prior to the date of such reduction for any reduction of the Aggregate Capital less than or equal to $20,000,000 (or such greater amount as agreed to by the Administrator and the Majority Purchaser Agents) and (B) at least five Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $20,000,000, and each such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Capital, for payment to each such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) on the next Settlement Date (or such other date as agreed to by the Administrator) with respect to any Portions of Capital maintained by such Purchaser immediately following the related current Yield Period, and the Aggregate Capital (together with the Capital of any related Purchaser) shall be deemed reduced in the amount to be paid to such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) only when in fact finally so paid; provided, that:
(A) the amount of any such reduction shall be not less than $1,000,000 or an integral multiple of $100,000 in excess thereof (to be applied pro rata in accordance with the Aggregate Capital outstanding) and, on and after August 29, 2008, the entire Aggregate Capital after giving effect to such reduction shall be not less than $75,000,000 and the Purchased Interest shall not exceed 100%; and
(B) with respect to any Portion of Capital, the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Yield Period.
Appears in 1 contract
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Administrator (for the benefit of each Purchaser Groupthe Purchasers), out of such Collectionsthe percentage of Collections represented by the Purchased Interest, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group the Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ ' Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Purchasers, the remainder of such Collections. Such remainder shall, the percentage of Collections represented by the Purchased Interest (to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, ); such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestremit such remainder to the Seller, but shall set aside and hold in trust for the ratable benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,
(iii) if such day is a Termination Day, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers set aside, segregate and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) the entire remainder of the Purchasers' Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of "Termination Day" and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such Purchaser and applied previously set-aside amounts shall, to the extent representing a return on Capital, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (w) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) belowplus (x) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (y) the Seller's Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables plus (z) all other amounts owed by the Seller under this Agreement to the Issuer, the LC Bank, any LC Participant, the Administrator, and any other Indemnified Party or Affected Person.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date, Collections held for the Purchasers pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Purchasers pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if Peabody or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified Peabody (or such Affiliate) that such right is revoked, Peabody (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Purchasers' Share of the Servicing Fee. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Purchasers ratably (based on their respective Portions of Capital funded thereby) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Purchasers' Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Purchasers ratably (based on their respective Portions of Capital funded thereby) in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Purchasers ratably (based on their respective Portions of Capital funded thereby) in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants, the amount necessary to cash collateralize the LC Participation Amount until the amount of cash collateral held in such LC Collateral Account equals the aggregate outstanding amount of the LC Participation Amount, fourth, to the Servicer in payment in full of all accrued Servicing Fees, and fifth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Purchasers ratably (based on their respective Portions of Capital funded thereby), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Purchasers, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, and (on and after a Termination Day) after the LC Participation Amount has been cash collateralized in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section l(g) or (n) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or such Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator or such Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof
(f) If at any time the Seller shall wish to cause the reduction of Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the Seller shall give the Administrator and the Servicer written notice in the form of Annex C (the "Paydown Notice") (A) at least two Business Days' prior to the date of such reduction for any reduction of Capital less than or equal to $20,000,000 and (B) at least five Business Days' prior to the date of such reduction for any reduction of Capital greater than $20,000,000, in each case such notice shall include the amount of such reduction and the proposed date on which such reduction shall commence;
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the Purchaser, for payment to the Administrator on the next Settlement Date immediately following the current Settlement Period or such other date approved by the Administrator, and Capital shall be deemed reduced in the amount to be paid to the Administrator only when in fact finally so paid; provided, that the amount of any such reduction shall be not less than $300,000 and shall be an integral multiple of $100,000.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Peabody Energy Corp)
Settlement Procedures. (a) The collection Collection of the Pool Receivables shall be administered by the Servicer Collection Agent, in accordance with the terms of this Agreement. The Seller shall provide to the Servicer Collection Agent (if other than the Seller) on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Liquidation Day or Provisional Liquidation Day and current computations of the Purchased each Receivable Interest.
(b) The Servicer Collection Agent shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicerit with respect to any Receivable Interest owned by a Purchaser:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Groupsuch Purchaser, out of the percentage of such CollectionsCollections represented by such Receivable Interest, (x) an amount equal to such Purchaser's Yield and Pro Rata Share of the Aggregate Discount Collection Agent Fee, if any, accrued through such day for each Portion of Capital such Receivable Interest and not previously set aside; provided, (y) an amount equal that notwithstanding the preceding clause, unless the Administrative Agent shall have given notice at the direction of the Required Purchasers to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through contrary, such dayamounts may, and (z) if the Seller is the Collection Agent, be comingled with the Seller's other funds prior to their payment to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not neither a Termination Liquidation Day nor a Provisional Liquidation Day nor an Optional Reduction Day nor a Mandatory Reduction Day, remit to the Seller, ratably, reinvest on behalf of each such Purchaser Group, the remainder of such percentage of Collections. Such , to the extent representing a return of Capital, by recomputation of such Receivable Interest pursuant to Section 2.03;
(iii) if such day is a Liquidation Day or a ProvisiOnal Liquidation Day, refrain from making reinvestments and set aside and hold in trust for such Purchaser the entire remainder of such percentage of Collections; provided, that amounts set aside and held in trust on any Provisional Liquidation Day that is subsequently determined not to be a Liquidation Day thereupon shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s of Capital, be automatically reinvested in Pool Receivablesaccordance with the preceding subsection (ii);
(iv) if such day is an Optional Reduction Day, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit Purchaser the entire remainder of such percentage of Collections or, if the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion remainder of such Collections exceeds the remaining amount of the Optional Reduction Amount, the portion of the remainder of such Collections equal to such remaining amount of the Optional Reduction Amount; provided, that, together notwithstanding the preceding clause, unless the Administrative Agent shall have given notice at the direction of the Required Purchasers to the contrary, such amounts may, if the Seller is the Collection Agent, be commingled with the Seller's other funds prior to their payment to the Purchasers;
(v) if such day is a Mandatory Reduction Day, set aside and hold in trust for the Purchaser the entire remainder of such percentage of Collections, or if the remainder of such Collections exceeds the remaining amount of the Mandatory Reduction Amount for such day, the portion of the remainder of such Collections equal to such remaining amount of the Mandatory Reduction Amount; provided, that, notwithstanding the preceding clause, unless the Administrative Agent shall have given notice at the direction of the Required Purchasers to the contrary, such amounts may, if the Seller is then the Collection Agent, be commingled with the Seller's other funds prior to their payment to the Purchasers; and
(vi) during such times as amounts are required to be reinvested in accordance with the foregoing subsection (ii) or the proviso to subsection (iii), release to the Seller for its own account any Collections in excess of such amounts and the amounts that are required to be set aside pursuant to this paragraphsubsection (i) above.
(c) The Collection Agent shall deposit into an account designated by each Purchaser, shall equal on the amount necessary to reduce first Business Day after each Settlement Date, unless the Purchased Interest to 100%Required Purchasers, which amount shall be deposited ratably to in their sole discretion, require more frequent deposits, all amounts held by the Collection Agent for each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c2.04(b), unless deposited earlier as provided in the next succeeding sentence; provided, furtherhowever, that if Collections have been commingled with the Facility Termination Date has been extended Seller's other funds prior to their payment to the Purchasers as permitted by the terms of this Agreement, any deposits made pursuant to the preceding clause shall be made by the Seller from and to the extent of the Collections with respect to a Receivable Interest owned by such Purchaser. If the Collection Agent is not the Seller, and if a Liquidation Day or a Provisional Liquidation Day has occurred and is continuing, all amounts held by the Collection Agent for each Purchaser in accordance with Section 1.11 2.04(b) shall be deposited on the first Business Day following receipt by the Collection Agent into an account designated by such Purchaser. The aggregate amount so deposited with respect to a Receivable Interest owned by a Purchaser shall not exceed the sum of such Purchaser's Capital of, and accrued Yield and Pro Rata Share of the Collection Agent Fee, if any, on such Receivable Interest plus the aggregate of any other amounts then owed by the Seller to such Purchaser hereunder. If the amounts so deposited are insufficient to pay in full all amounts due to such Purchaser hereunder, such amounts shall be applied in the following order of priority (whether or not such funds are sufficient to pay in full all such amounts): first to the Collection Agent (if other than the Seller or its designee) in payment of all accrued and unpaid Collection Agent Fee, if any, second to such Purchaser in payment in full of all accrued and unpaid Yield, third to such Purchaser in reduction to zero of the Aggregate Capital of such Purchaser, and fourth to such Purchaser in payment of any other amounts owed by the Seller hereunder. After the Capital and Yield with respect to a Receivable Interest, and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) other amounts payable by the Seller to the AdministratorPurchasers or the Administrative Agent hereunder, have been paid in full, all additional Collections with respect to such Receivable Interest shall be paid to the Seller for its own account.
(d) For the purposes of this Section 2.04:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed merchandise or services, or any cash discount or other adjustment made by the Seller or a Seller Subsidiary, or any setoff, the Seller and the Servicer shall be deemed to have received on such day a Collection of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held Pool Receivable in trust for the benefit amount of such reduction or adjustment;
(ii) if on any day either (w) any of the representations or warranties contained in Sections 4.01(h) or 4.01(n) are no longer true with respect to any Pool Receivable, (x) the Seller shall fail to perform or observe any term, covenant or agreement contained in Section 5.01(d), (y) the Seller, any Seller Subsidiary or the Collection Agent (if the Seller or an Affiliate thereof) shall extend, amend or otherwise modify the terms of any Pool Receivable, or amend, modify or waive the terms or conditions of the Contract under which such Pool Receivable arises in a manner which materially and adversely affects the collectibility of such Pool Receivable, or (z) any Pool Receivable denominated in a currency other than United States dollars is deemed uncollectible by any Purchaser and applied as a result of the inability of the Obligor thereof to make any payment thereon due to restrictions imposed on the payment of the foreign currency in accordance with clause which such Pool Receivable is denominated outside of the country of such foreign currency, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) below;except as provided in subsection (i) or (ii) of this Section 2.04(d), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent any Purchaser shall be required for any reason to pay over to an Obligor 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, such Purchaser shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Georgia Pacific Corp)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the AdministratorAdministrator (with the consent or at the direction of the Majority Purchasers), segregate in a separate account approved by the AdministratorAdministrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of the Purchasers' Share of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital Investment and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchaser Group's Ratable Share of the Purchasers’ ' Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of the Purchasers' Share of such Collections. Such remainder shall, to the extent representing a return on the Aggregate CapitalInvestment, ratably, according to each Purchaser’s Capital's Investment, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestreinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the AdministratorAdministrator (with the consent or at the direction of the Majority Purchasers), segregate in a separate account approved by the AdministratorAdministrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if in the Facility Termination Date has been extended pursuant to Section 1.11 and case of any Purchaser (or its Purchaser Agent) that has provided notice (an “"Exiting Notice”") to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.111.10, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “"Exiting Purchaser”) "), then such Purchaser's ratable share of such Collections based on its Investment shall not be Reinvested reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below,
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Purchasers' Share of the Collections (or in the case of an Exiting Purchaser an amount equal to such Exiting Purchaser's ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Exiting Purchaser's ratable share of such Collections applicable to its Investment (and not for purposes of calculating any Fees or Discount payable to such Exiting Purchaser hereunder), such Exiting Purchaser's Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Exiting Purchaser's Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser's Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Exiting Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of "Termination Day" (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser, and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser's Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of Exiting Notice, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller's Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into each applicable Purchaser's account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date (or solely with respect to Collections held for the Purchasers pursuant to clause (f)(iii) of Section 1.4 such other date approved by the Administrator with at least (5) Business Days prior written notice to the Administrator of such payment), Collections held for each Purchaser with respect to such Purchaser's Portion(s) of Investment pursuant to clause (b)(i) or (f) plus the amount of Collections then held for such Purchaser pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, York may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the aggregate of each Purchaser Group's Ratable Share of the Purchasers' Share of the Servicing Fee. On or before the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer by facsimile of the amount of the Discount accrued with respect to each such Portion of Investment during the related Yield Period then ending.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent's Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer's own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group's Ratable Share of the Purchasers' Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Servicer's own account in payment in full of all accrued Servicing Fees, second to each Purchaser Agent ratably according to Discount (for the benefit of the relevant Purchasers within such Purchaser Agent's Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent's Purchaser Group, third to each Purchaser Agent ratably according to the Group Investment of such Purchaser Agent's Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent's Purchaser Group) in payment in full of each Purchaser's Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the first and second clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Discount and Investment, respectively and fourth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to each Purchaser Group ratably (for the benefit of the Purchasers within such Purchaser Group) in accordance with its Ratable Share, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the Form of Annex E (A) at least two Business Days' prior written notice thereof for any reduction of Aggregate Investment less than or equal to $10,000,000 and (B) at least ten Business Days' prior written notice thereof for any reduction of Aggregate Investment greater than $10,000,000 (in each case such notice shall include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to each such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) on the (i) next Settlement Date with respect to any Portions of Investment maintained by such Purchaser immediately following the related current Yield Period or (ii) such other date approved by the Administrator with at least five Business Days prior written notice to the Administrator of such payment, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) only when in fact finally so paid; provided, that:
(A) the amount of any such reduction shall be not less than $1,000,000 for each Purchaser Group and shall be an integral multiple of $100,000, and the entire Aggregate Investment after giving effect to such reduction shall be not less than $50,000,000 and shall be in an integral multiple of $100,000 (unless the Aggregate Investment shall have been reduced to zero); and
(B) with respect to any Portion of Investment, the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Yield Period.
Appears in 1 contract
Sources: Receivables Purchase Agreement (York International Corp /De/)
Settlement Procedures. (a) The collection Collection of the Pool Receivables shall be administered by the Servicer Servicers in accordance with the terms of this Agreement. The Each Seller shall provide to the Servicer Servicers on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased InterestAssets Coverage Percentage.
(b) The Each Applicable Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the a Seller or Servicer, transfer (or cause to be transferred) such Collections from the ServicerLock-Box Accounts and deposit (or cause to be deposited) such Collections into a Collection Account, except as otherwise permitted pursuant to Section 4.3(a) or Section 4.3(e). With respect to all Collections on deposit in the Collection Accounts on such day, the Servicers shall:
(i) set aside and hold maintain in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) Collection Accounts for the benefit of each the Purchaser Group(and, in the case of clause fourth below, the other applicable Purchaser Parties, subject to their right to receive such amounts solely in accordance with the priorities for payment set forth in Section 1.6(d) below), out of such Collections, (x) first an amount equal to the Aggregate all Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter sum of the Used Fees, Unused Fees and Breakage Costs accrued and unpaid through such dayday and not previously set aside, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside and fourth, to the extent funds are available therefor, any other amounts (other than return of Capital) owed to any Purchaser Party pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4 and not previously set aside;
(ii) subject to Section 1.4(f1.6(f), if such day is not a Termination Day, remit to the Seller, ratablySellers, on behalf of each Purchaser Groupthe Purchaser, the remainder of such Collections. Such remainder shall, (x) to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s of Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections Purchased Assets and other proceeds with respect thereto and (each such reinvestmenty) to the extent not representing a return of Capital, a “Reinvestment,” and “Reinvest” shall have be paid (on behalf of the correlative meaning)Purchaser) to the Sellers in respect of the Deferred Purchase Price for the Purchased Assets; provided, however, that if if, after giving effect to such Reinvestment, the Purchased Interest Assets Coverage Percentage would exceed 100%, then the Servicer shall not Reinvest, but Servicers shall set aside and hold maintain in trust the Collection Accounts for the benefit of the Purchasers Purchaser in accordance with clause (and shall, at iii) below the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such remaining Collections that, together with the any other Collections set aside pursuant to this paragraphclause (ii), shall equal equals the amount necessary to reduce the Purchased Interest Assets Coverage Percentage to 100% (or, if all such remaining Collections are not sufficient to reduce the Purchased Assets Coverage Percentage to 100%, which amount then all such remaining Collections shall be deposited ratably to each Purchaser Agent’s account (so set aside for the benefit of its related Purchasers and to be applied in reduction the Purchaser), rather than remitting all of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) such remaining Collections to the AdministratorSellers for Reinvestment or for payment of the Deferred Purchase Price;
(iii) if such day is a Termination Day, set aside and maintain in the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust Collection Account for the benefit of the Purchaser Parties the entire remainder of such Purchaser Collections; and
(iv) subject to Section 1.6(f), pay to the Sellers (on behalf of the Purchaser) for the Sellers’ own accounts and applied in payment of the Deferred Purchase Price for the Purchased Assets, any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) above, plus (y) the amounts that are required to be set aside pursuant to clause (i) above, pursuant to the proviso to clause (ii) above and pursuant to clause (iii) belowabove, plus (z) all reasonable and appropriate out-of-pocket costs and expenses of the Servicers for servicing, collecting and administering the Pool Receivables.
(c) On each Settlement Date, each Applicable Servicer shall (i) deposit into the applicable Purchaser’s Account (or such other account designated by the Agent) all Collections held on deposit in each Collection Account for the benefit of the Purchaser Parties pursuant to Section 1.6(b) and Section 1.6(f) and (ii) deposit to each Servicer’s own account, from Collections held on deposit in the Collection Account pursuant to clause third of Section 1.6(b)(i) in respect of the accrued Servicing Fee, an amount equal to such Servicer’s portion of such accrued Servicing Fee; provided, however, that no amounts shall be payable to Garland under clause (ii) above.
(d) Upon receipt of funds deposited into any of the Purchaser’s Accounts pursuant to Section 1.6(c), the Agent shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day, such funds shall be distributed in the following order of priority: first to the Purchaser in payment in full of all unpaid Discount accrued during the most recently ended Discount Accrual Period, second to the Purchaser in payment in full of all unpaid Used Fees, Unused Fees and Breakage Costs accrued during the most recently ended Discount Accrual Period, third to the Purchaser in payment of outstanding Capital (and accrued Discount thereon) to the extent that funds have been set aside for such purpose pursuant to Section 1.6(f), fourth to the Purchaser, the Agent and any other Purchaser Party in payment in full of any other amounts owed thereto pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4 and fifth, any remaining amounts shall be paid to the Purchaser in payment of outstanding Capital; and
(ii) if such distribution occurs on a Termination Day, such funds shall be distributed in the following order of priority: first to the Purchaser in payment in full of all accrued and unpaid Discount, second to the Purchaser in payment in full of all accrued and unpaid Used Fees, Unused Fees and Breakage Costs, third to the Purchaser in payment in full of all outstanding Capital, fourth to the Purchaser, the Agent and any other Purchaser Party in payment in full of any other amounts owed thereto by any Seller or any Servicer hereunder (including, without limitation, pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4) or under any other Transaction Document. After the occurrence of the Final Payout Date, all additional Collections with respect to the Purchased Assets shall be paid to the Sellers for their own accounts in payment of the Deferred Purchase Price for the Purchased Assets.
(e) For the purposes of this Section 1.6:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, damaged, rejected, returned, repossessed or foreclosed goods or services, or any discount, rebate, credit, counterclaim, billing error or other adjustment made by any Seller, Originator or Servicer, or any setoff or dispute between any Seller, Originator or Servicer and any Obligor, the Seller of such Pool Receivable shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in paragraphs (e), (f) or (k) of Section 1 of Exhibit III is not true with respect to any Pool Receivable, the Seller of such Pool Receivable shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) If an Obligor makes a payment but does not designate the Receivable to which such payment applies, then the Applicable Servicer shall contact such Obligor promptly in order to determine to which Receivable such payment relates; provided, that if the Obligor does not direct the Applicable Servicer to apply such payment to a particular Receivable or Receivables within thirty (30) days after such payment has been received in a Lock-Box Account or by the Applicable Servicer, then, except as otherwise required by applicable law or the relevant Contract, such payment shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable; and
(iv) if and to the extent the Agent, the Purchaser or any other Indemnified Party shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller of the relevant Pool Receivable and, accordingly, the Agent or the Purchaser, as the case may be, shall have a claim against such Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time a Seller shall wish to cause the reduction of the Aggregate Capital (in whole or in part), such Seller may do so as follows:
(i) such Seller shall give the Agent at least (x) one (1) Business Day’s prior written notice thereof in the case of any reduction of the aggregate U.S. Capital or (y) three (3) Business Days’ prior written notice in the case of any reduction of the aggregate CAD Capital or EUR Capital, in either case, in the form of Annex C (each, a “Paydown Notice”) setting forth the proposed amount of such reduction, the proposed date on which such reduction will commence (the “Paydown Date”) and the Approved Currency of the Capital to be reduced;
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections in the applicable Approved Currency with respect to the Capital or portion thereof to be reduced (including to any related Discount) not to be reinvested or used to pay the Deferred Purchase Price until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Applicable Servicer shall hold such Collections in a Collection Account for the benefit of the Purchaser, for payment to the Purchaser’s Account on the next Settlement Date (and in the case of a reduction of the entire Investment, the Servicers shall hold in the Collection Accounts for payment on such date an amount equal to all other obligations of the Sellers or Servicers to the Purchaser, the Agent and each other Purchaser Party hereunder) in accordance with Section 1.6(c), and the Aggregate Capital shall be deemed reduced in the amount to be paid to the Purchaser’s Account only when in fact finally so paid; provided that, the amount of any such reduction shall be not less than (A) one million U.S. Dollars ($1,000,000) or an integral multiple of one hundred thousand Dollars ($100,000) in excess thereof for reductions of U.S. Capital, (B) one million Euros (€1,000,000) or an integral multiple of one hundred thousand Euros (€100,000) in excess thereof for reductions of Euro Capital, and (C) one million Canadian Dollars (CAD 1,000,000) or an integral multiple of one hundred thousand Canadian Dollars (CAD 100,000) in excess thereof for reductions of CAD Capital, in each case, unless the aggregate U.S. Capital, Euro Capital or CAD Capital, as applicable, shall have been reduced to zero.
Appears in 1 contract
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter Fees accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)Rights; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestremit such remainder to the Seller or reinvest it, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraphclause (ii), shall equal the amount necessary to reduce the Purchased Interest to 100%% (determined as if such Collections set aside had been applied to reduce the Aggregate Capital at such time), which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective CapitalPurchasers) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if in the Facility Termination Date has been extended pursuant to Section 1.11 and case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.111.22, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then ), then, such Collections shall not be Reinvested reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below,
(iii) if such day is a Termination Day (or a day on which the Commitment of an Exiting Purchaser terminates), set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of such Collections (or, in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Capital; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Capital shall be deemed to remain constant from the day on which the Commitment of such Exiting Purchaser terminates, until the date such Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated); provided, further, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day on which the Commitment of such Exiting Purchaser terminates) and, thereafter, the conditions set forth in Section 3 of Exhibit II are satisfied or waived by the Administrator and the Majority Purchaser Agents (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Capital (or the Capital of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Capital, be reinvested in accordance with clause (ii) above on the day of such subsequent satisfaction or waiver of conditions or revocation of Exiting Notice, as the case may be, and
(iv) subject to Section 1.4(f), release to the Seller for its own account any Collections in excess of: (x) the amounts that are required to be set aside or reinvested pursuant to clauses (i), (ii) and (iii) above plus (y) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the LC Bank, the Administrator and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d) below, deposit into each applicable Purchaser Agent’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date (for any Portion of Capital), Collections held for each Purchaser pursuant to Sections 1.4(b)(i), (ii) and (iii) and Section 1.4(f); provided, that if ▇▇▇▇▇ or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified ▇▇▇▇▇ (or such Affiliate) that such right is revoked, ▇▇▇▇▇ (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchasers’ Share of the Servicing Fee. On or prior to the last day of each Yield Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Yield Period or portion thereof.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day, that is not a day on which the Commitment of an Exiting Purchaser terminates and on which the Purchased Interest does not exceed 100%, first to each Purchaser Agent ratably (based on the Discount and Fees accrued during such Yield Period) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and Fees with respect to each Portion of Capital maintained by the Purchasers within such Purchaser Agent’s Purchaser Group; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and Fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to Section 1.4(b)(i) and has not retained such amounts pursuant to Section 1.4(c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day, on a day on which the Commitment of an Exiting Purchaser terminates or on a day when the Purchased Interest exceeds 100%, first if ▇▇▇▇▇ or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second to each Purchaser Agent ratably (based on the Discount and Fees accrued during such Yield Period) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and Fees with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third to each Purchaser Agent ratably (based on the aggregate of the Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of (x) if such day is a Termination Day, each Purchaser’s Capital, (y) if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%; provided, that, prior to the Non-Pro Rata Funding Termination Date, so long as such day is not a Termination Day, any distribution to reduce the Purchased Interest pursuant to this clause (y) shall first be applied to the portion of the Purchased Interest relating to the MUFG Purchaser Group until the date on which no Capital in respect of such Purchased Interest shall be outstanding before reducing the Purchased Interest of the PNC Purchaser Group, or (z) if such day is a day on which the Commitment of an Exiting Purchaser terminates, an amount equal to the Exiting Purchaser’s ratable share of the Collections set aside pursuant to Section 1.4(b)(iii) based on its Capital (determined as if such Collections had been applied to reduce the Aggregate Capital); it being understood that each Purchaser Agent shall distribute the amounts described in the second and third clauses of this clause (ii) to the Purchasers within its Purchaser Group ratably (based on Discount and Fees and Capital, respectively), fourth, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants, (x) the amount necessary to cash collateralize the LC Participation Amount until the amount of cash collateral held in such LC Collateral Account equals 100% of the LC Participation Amount and (y) if such day is a Termination Day of the type described in clause (b) of the definition thereof or if a Termination Event is continuing, an amount equal to the LC Fee Expectation at such time (or such portion thereof not currently on deposit in the LC Collateral Account), fifth, if the Aggregate Capital and accrued Aggregate Discount with respect to each Portion of Capital for all Purchaser Groups have been reduced to zero, the Fees have been paid in full and the Purchasers’ Share of all accrued Servicing Fees payable to the Servicer (if other than ▇▇▇▇▇ or an Affiliate thereof) have been paid in full, to each Purchaser Group ratably (based on the amounts payable to each) (for the benefit of the Purchasers within such Purchaser Group), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder and sixth, to the Servicer’s own account (if the Servicer is ▇▇▇▇▇ or an Affiliate thereof) in payment in full of the aggregate of the Purchaser’s Share of all accrued Servicing Fees. After the Capital (on and after a day when the Purchased Interest exceeds 100% or any day on which the Commitment of an Exiting Purchaser terminates), Aggregate Discount, Fees and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder have been paid in full, and (on and after a Termination Day) after Aggregate Capital and an amount equal to 100% of the LC Participation Amount and the LC Fee Expectation has been deposited in the LC Collateral Account, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and shall, subject to Section 1.4(e)(v), immediately pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4(b);
(ii) if on any day any of the representations or warranties in Sections 1(j) or 3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of the full Outstanding Balance of such Pool Receivable and shall, subject to Section 1.4(e)(v), immediately pay any and all such amounts in respect thereof to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4(b) (Collections deemed to have been received pursuant to Sections 1.4(e)(i) or (ii) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) except as provided in Sections 1.4(e)(i) or (ii) or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables;
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof; and
(v) if at any time before the Facility Termination Date the Seller is deemed to have received any Deemed Collection under Sections 1.4(e)(i) and (ii), so long as no Termination Day then exists, the Seller may satisfy its obligation to deliver the amount of such Deemed Collections to a Lock-Box Account by instead recalculating (or being deemed to have recalculated) the Purchased Interest by decreasing the Net Receivables Pool Balance by the amount of such Deemed Collections, so long as such adjustment does not cause the Purchased Interest to exceed 100%.
(f) If at any time the Seller wishes to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex E (each, a “Paydown Notice”) (A) at least two (2) Business Days prior ▇▇▇▇ no later than 12:00 p.m. on the date of such reduction for any reduction of the Aggregate Capital less than or equal to $25,000,000 (or such greater amount as agreed to by the Administrator and the Majority Purchaser Agents) and (B) at least five (5) Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $25,000,000, and each such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser, for payment to each such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) on the next Settlement Date (or such other date a
Appears in 1 contract
Sources: Receivables Purchase Agreement (Kelly Services Inc)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this AgreementAgreement and applicable regulatory law. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestreinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective CapitalPurchasers) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if (x) in the Facility Termination Date has been extended pursuant to Section 1.11 and case of any Purchaser (or its that is a Conduit Purchaser, if such Conduit Purchaser Agent) has provided notice (an a “Exiting Declining Notice”) to its Purchaser Agent, the Administrator, the Seller and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser’s refusal, Conduit Purchaser to be reinvested pursuant to Section 1.11this clause (ii), and (y) in the case of any Purchaser with respect to extend its (or its related Committed Purchaser’s) Commitment hereunder which the Purchaser Termination Date has occurred (an “Exiting Purchaser”) then in either case (x) or (y), above, such Collections shall not be Reinvested reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii), below.
(iii) if such day is a Termination Day (or any day following the provision of a Declining Notice or the occurrence of the Purchaser Termination Date with respect to any Purchaser), set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser an amount equal to such Declining Conduit Purchaser’s or Exiting Purchaser’s ratable share of such Collections based on its Capital; provided, that solely for the purpose of determining such Declining Conduit Purchaser’s or Exiting Purchaser’s ratable share of such Collections, such Declining Conduit Purchaser’s or Exiting Purchaser’s Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or the occurrence of the Purchaser Termination Date with respect to such Purchaser, as the case may be, until the date such Declining Conduit Purchaser’s or Exiting Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Declining Conduit Purchaser’s or Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day (or any day following the provision of a Declining Notice or the occurrence of the Purchaser Termination Date with respect to any Purchaser) and, thereafter, the conditions set forth in Section 2 of Exhibit II or giving rise to the related Facility Termination Date are satisfied or cured or waived by the Majority Purchaser Agents (or in the case of a Declining Notice or the occurrence of the Purchaser Termination Date with respect to any Purchaser, such Declining Notice or occurrence of the Purchaser Termination Date with respect to such Purchaser, as the case may be, has been revoked by the related Declining Conduit Purchaser or waived by the related Exiting Purchaser, as the case may be, and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Capital (or the Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably in accordance with each Purchaser’s Capital, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction, cure or waiver of conditions or revocation of Declining Notice or waiver of such Purchaser Termination Date, as the case may be, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess, if any, of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into each applicable Purchaser Agent’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date in the case of Collections held for each Purchaser with respect to such Purchaser’s Portion(s) of Capital pursuant to clause (b)(i) or paragraph (f), plus the amount of Collections then held for the related Purchasers pursuant to clauses (b)(ii) and (iii) of this Section 1.4; provided, that if Triumph or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified Triumph (or such Affiliate) that such right is revoked, Triumph (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the aggregate Purchasers’ Share of the Servicing Fee.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day, first to each Purchaser Agent ratably according to the Discount accrued during the Yield Period ending on the Settlement Date on which such Discount is distributed (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued and unpaid Discount and Fees (other than Servicing Fees) with respect to each Portion of Capital maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount, and second, if the Servicer has set aside amounts in respect of the Purchasers’ Share of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to paragraph (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day, first if Triumph or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second to each Purchaser Agent ratably (based on the aggregate accrued and unpaid Discount and Fees (other than Servicing Fees) payable to all Purchasers at such time) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third to each Purchaser Agent ratably according to the aggregate of the Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the first and second clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Discount and Capital, respectively, fourth, if the Aggregate Capital and accrued Aggregate Discount with respect to each Portion of Capital for all Purchaser Groups have been reduced to zero, and the Purchasers’ Share of all accrued Servicing Fees payable to the Servicer (if other than Triumph or an Affiliate thereof) have been paid in full, to each Purchaser Group ratably, based on the amounts then due and payable to each (for the benefit of the Purchasers within such Purchaser Group), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts then due and payable thereto by the Seller or Servicer hereunder and, fifth, to the Servicer’s own account (if the Servicer is Triumph or an Affiliate thereof) in payment in full of the aggregate of the Purchasers’ Share of all accrued Servicing Fees. After the Aggregate Capital, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and shall immediately pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of the Purchasers and their assigns and for application pursuant to this Section 1.4;
(ii) if on any day any of the representations or warranties in Sections 1(j) or 3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full and shall immediately pay any and all such amounts to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to this Section 1.4 (Collections deemed to have been received pursuant to clause (i) or (ii) of this paragraph (e) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) except as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex E (each, a “Paydown Notice”) (A) at least two Business Days prior to the date of such reduction for any reduction of the Aggregate Capital less than or equal to $20,000,000 (or such greater amount as agreed to by the Administrator and the Majority Purchaser Agents) and (B) at least five Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $20,000,000, and each such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Capital, for payment to each such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) on the next Settlement Date (or such other date as agreed to by the Administrator) with respect to any Portions of Capital maintained by such Purchaser immediately following the related current Yield Period, and the Aggregate Capital (together with the Capital of any related Purchaser) shall be deemed reduced in the amount to be paid to such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) only when in fact finally so paid; provided, that:
(A) the amount of any such reduction shall be not less than $1,000,000 or an integral multiple of $100,000 in excess thereof (to be applied pro rata in accordance with the Aggregate Capital outstanding) and, on and after August 29, 2008, the entire Aggregate Capital after giving effect to such reduction shall be not less than $75,000,000 and the Purchased Interest shall not exceed 100%; and
(B) with respect to any Portion of Capital, the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Yield Period.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Triumph Group Inc /)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the AdministratorAgent, segregate in a separate account approved by the AdministratorAgent) for the benefit of each Purchaser Group, Purchasers out of such CollectionsCollections attributable to the Purchased Interest, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group the Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Purchaser’s Share of the Servicing Fee accrued through such day and not previously set aside;aside which will be paid over to the Servicer in accordance with and subject to Sections 1.4(c) and (d),
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Agent and the Purchasers, the remainder of such Collectionsthe Collections attributable to the Purchased Interest. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds Pool Assets with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestreinvest, but shall set aside and hold in trust for the Agent, for the benefit of itself and the Purchasers (and shall, at the request of the AdministratorAgent, segregate in a separate account approved by the Administrator) a Agent), such portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,
(iii) if such day is a Termination Day, which amount set aside, segregate and hold in trust (and shall, at the request of the Agent, segregate in a separate account approved by the Agent) for the Purchasers the entire balance of any and all Collections of all Pool Assets; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Agent, such previously set-aside amounts shall be deposited ratably reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(d)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Assets.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Agent), on each Settlement Date, Collections held for the Purchasers pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Purchasers pursuant to the proviso to clause (b)(ii) and clause (b)(iii), in each case, of this Section 1.4; provided, that if AAR or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Agent has not notified AAR (or such Affiliate) that such right is revoked, AAR (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Purchasers’ Share of the Servicing Fee. On the last day of each Settlement Period, the Agent will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Purchaser Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Agent shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Purchasers in payment in full of all accrued Discount and fees payable pursuant to the Fee Letter (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Purchasers in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Agent’s account (, for the benefit of its related Purchasers the Purchasers, in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); providedfourth, further, that if the Facility Termination Date has Capital and accrued Discount with respect to each Portion of Capital have been extended reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Purchasers, the Agent and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder.
(iii) after the Capital, Discount, fees payable pursuant to Section 1.11 the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, other amounts payable by the Seller and the Servicer to the Purchasers, the Agent or any other Indemnified Party or Affected Person hereunder, have been paid in full, the Purchased Interest shall be reduced to zero and all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Purchaser’s refusalPool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties relating to any Pool Receivable set forth in Section l(g) of Exhibit III hereof is not true, pursuant the Seller shall be deemed to Section 1.11have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii) immediately above, or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to extend the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Agent or the Purchasers shall be required for any reason to pay over to an Obligor (or its related Committed Purchaser’sany trustee, receiver, custodian or similar official in any insolvency Proceeding) Commitment hereunder any amount received by it hereunder, such amount shall be deemed not to have been so received by the Agent or the Purchasers but rather to have been retained by the Seller and, accordingly, the Agent or the Purchasers, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(an “Exiting Purchaser”f) then If at any time the Seller shall wish to cause the reduction of Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the Seller shall give the Agent and the Servicer written notice in the form of Annex C, (A) at least two Business Days’ prior to the date of such reduction for any reduction of Capital less than or equal to $10,000,000 and (B) at least five Business Days’ prior to the date of such reduction for any reduction of Capital greater than $10,000,000, in each case such notice shall include the amount of such reduction and the proposed date on which such reduction shall commence;
(ii) On the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections shall not be Reinvested and shall instead be held in trust for the benefit Purchasers, for payment to the Agent on the next Settlement Date immediately following the current Settlement Period or such other date approved by the Agent, and Capital shall be deemed reduced in the amount to be paid to the Agent only when in fact finally so paid; provided, that (A) the amount of any such Purchaser reduction shall be not less than $500,000 and applied shall be an integral multiple of $100,000 in accordance with clause excess thereof, and the entire Capital of the Purchased Interest after giving effect to such reduction shall be not less than $15,000,000 and shall be in an integral multiple of $100,000 and (iiiB) below;the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Settlement Period.
Appears in 1 contract
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the AdministratorAdministrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the AdministratorAdministrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser Group, out of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital Investment and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Purchaser Group’s Ratable Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate CapitalInvestment, ratably, according to each Purchaser’s CapitalInvestment, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestreinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the AdministratorAdministrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the AdministratorAdministrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.11 1.10 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.111.10, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;
(iii) if such day is a Termination Day (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator (with the consent or at the direction of a Simple Majority of the Purchasers), segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of the Collections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Investment; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Investment shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Purchaser’s Investment has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Investment shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Investment (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and a Simple Majority of the Purchasers (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided by such Exiting Purchaser or its Purchaser Agent to the Administrator, the Seller and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Investment (or the Investment of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Investment, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of such Exiting Notice; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit on each Settlement Date into the account from time to time specified by the Administrator, Collections held for the benefit of the Purchasers pursuant to Sections 1.4(b) and 1.4(f); provided, that if WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified WESCO (or such Affiliate) that such right is revoked, WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchaser Group’s Ratable Share of the Servicing Fee. Within three Business Days of the last day of each Yield Period with respect to any Portion of Investment, the applicable Purchaser Agent will notify the Servicer and the Administrator by e-mail of the amount of the Discount accrued with respect to such Portion of Investment during the related Yield Period.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Administrator for distribution to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of each Purchaser Group’s Ratable Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if WESCO or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of all accrued Servicing Fees, second, to the Administrator for distribution to each Purchaser Agent ratably according to Investment (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Investment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third, to the Administrator for distribution to each Purchaser Agent (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) ratably according to the fees accrued (other than Servicing Fees) in payment in full of all such accrued fees (other than Servicing Fees) with respect to each Portion of Investment maintained by such Purchasers, fourth, to the Administrator for distribution to each Purchaser Agent ratably according to the aggregate of the Investment of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%); it being understood that each Purchaser Agent shall distribute the amounts described in the second, third and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Investment or, in the case of the third clause of this Section 1.4(d)(ii), fees (not including the Servicing Fee), fifth, if the Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Investment for all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than WESCO or an Affiliate thereof) have been paid in full, to the Administrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, each Indemnified Party and each Affected Person, in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and sixth, to the Servicer’s own account (if the Servicer is WESCO or an Affiliate thereof) in payment in full of the Aggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the Aggregate Investment, Aggregate Discount, fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. Each Purchaser Agent hereby covenants and agrees to timely provide the Administrator with all information necessary for the Administrator to make the allocations to the Purchaser Agents required to be made by the Administrator pursuant to Sections 1.4(d) and 1.4(f), including the applicable account of each Purchaser Agent for which amounts should be distributed.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by Applicable Law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice thereof for any reduction of Aggregate Investment (such notice to include the amount of such proposed reduction and the proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) on the next Settlement Date, and the Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the amount to be paid to the Administrator (for the account of such Purchaser) only when in fact finally so paid; ; provided, that:
(A) the amount of any such reduction shall be not less than $500,000 in the aggregate for all Purchaser Groups (unless the Aggregate Investment at the time of such reduction is less than $500,000, in which case such reduction shall be in the amount required to reduce the Aggregate Investment to zero); and
(B) with respect to any Portion of Investment, the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Yield Period.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Wesco International Inc)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the AdministratorAdministrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser GroupIssuer, out of the Issuer's Share of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group the Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Issuer's Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Issuer, the remainder of the Issuer's Share of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestreinvest, but shall set aside and hold in trust for the benefit of the Purchasers Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the AdministratorAdministrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%;
(iii) if such day is a Termination Day, which amount set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer the entire remainder of the Issuer's Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of "Termination Day" and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be deposited ratably to each Purchaser Agent’s account reinvested in accordance with clause (for the benefit of its related Purchasers and to be applied in reduction of their respective Capitalii) on the next Weekly Settlement Date day of such subsequent satisfaction or waiver of conditions; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller's Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Monthly Settlement Date, Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4(c)1.4; provided, further, provided that if JLG or an Affiliate thereof is the Facility Servicer, such day is not a Termination Date Day and the Administrator has been extended not notified JLG (or such Affiliate) that such right is revoked, JLG (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.11 clause (b)
(i) that represents the Issuer's Share of the Servicing Fee. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Monthly Settlement Date) in payment in full of the Issuer's Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any Purchaser (other Indemnified Party or its Purchaser Agent) has provided notice (an “Exiting Notice”) Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the AdministratorFee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held Pool Receivable in trust for the benefit amount of such Purchaser and applied reduction or adjustment;
(ii) if on any day any of the representations or warranties in accordance Section 1(g) or (n) of Exhibit III is not true with clause respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) below;except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
Appears in 1 contract
Sources: Receivables Purchase Agreement (JLG Industries Inc)
Settlement Procedures. The parties hereto will take the following actions with respect to each Settlement Date:
(a) The collection By no later than the fifth (5th) Business Day prior to each Settlement Date and on the Closing Date (each a “Reporting Date” for and related to the Settlement Period ending immediately prior to such date and, to the extent required in clause (b) below, the Interest Period ending immediately prior to such Settlement Date), the Servicer shall deliver to the Collateral Agent and the Administrative Agent, which the Administrative Agent shall, upon receipt, forward to each Group Agent, an e-mail attaching an Excel file and a file in .pdf or similar format signed by a Responsible Officer of the Servicer containing the information described in Exhibit D, including the information calculated by the Servicer pursuant to this Section 3.01 (each, an “Information Package”) for and related to the Settlement Period ending immediately prior to such Reporting Date; provided, that the loan level data tape set forth in Exhibit D shall only be required to be provided in connection with the Settlement Dates occurring in March, June, September and December, and upon request thereof by M▇▇▇▇▇, within ten (10) Business Days of such request; provided further, that during the continuance of an Unmatured Event of Termination or Event of Termination, the Administrative Agent may (or at the request of the Required Lenders shall) request, in its reasonable discretion, the Servicer to, and the Servicer agrees to, deliver any information related to the Pool Receivables and Related Assets, or the transactions contemplated hereby as the Administrative Agent or the Required Lenders shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on request (including a timely basis all information needed for such administration, including notice calculation of the occurrence of any Termination Day Net Portfolio Balance, the Required Reserves, the Borrowing Base, the Enhanced Borrowing Base and current computations of each component or subcomponent thereof (including as determined on dates other than as set forth therein), the Purchased Interestdaily Collections, etc.) on each Business Day.
(b) On or before the fifth (5th) day of each calendar month, the applicable Group Agent for each Conduit Lender shall notify the Administrative Agent and the Servicer of the CP Rate for each Rate Tranche funded by Commercial Paper Notes of such Conduit Lender for the most recently ended Settlement Period and the amount of Interest accrued in respect of each such Rate Tranche of such Conduit Lender for each day during such most recently ended Settlement Period. On or before the second (2nd) Business Day prior to each Reporting Date, each Group Agent shall notify the Administrative Agent and the Servicer of (i) the amount of Interest accrued in respect of each related Rate Tranche funded by the Lenders in each Group for each day during the most recently ended Settlement Period, and (ii) all Fees accrued each day during the most recently ended Settlement Period, and (iii) all other amounts payable or to be paid by the Borrower under this Agreement and the other Transaction Documents on the immediately succeeding Settlement Date (other than amounts described in clause (c) below) to such Group Agent or any Lender in, or Affected Person related to, any Group. Such Interest, Fees and other amounts accrued in respect of such immediately preceding Settlement Period or Interest Period, as applicable, shall be due and payable by the Borrower on the next succeeding Settlement Date.
(c) On each Reporting Date, the Servicer shall include in the Information Package, calculations, as of the most recent Cut-off Date for the related Settlement Period, the following:
(i) without taking into account any Receivables included in any Transfers following such Cut-off Date, (A) the Unpaid Balance and Financed Unpaid Balance of each of the Pool Receivables, the Aggregate Principal, the aggregate Principal of the Enhanced Loans, the aggregate Principal of each Group, the Required Reserves, the Net Portfolio Balance, the Borrowing Base, the Enhanced Borrowing Base and each component of each of the foregoing, (B) the amount of the reduction or increase (if any) in each of the Required Reserves, the Net Portfolio Balance, the Borrowing Base, the Enhanced Borrowing Base, the Supporting LC Amount, the Aggregate Principal, the aggregate Principal of the Enhanced Loans and the aggregate Principal of each Group since the Cut-off Date immediately preceding the Cut-off Date for the most recently ended Settlement Period, and each component of each of the foregoing (including a breakdown of Collections and Deemed Collections and any related Dilutions or other reductions, if any, during such Settlement Period), (C) the excess (if any) of the aggregate Principal of the Non-Enhanced Loans over the Borrowing Base, (D) the excess (if any) of the Aggregate Principal over the Enhanced Borrowing Base, (E) the excess (if any) of the Aggregate Principal over the Facility Limit, (F) the excess (if any) of the aggregate Principal of the Enhanced Loans over the Supporting LC Amount, (G) the excess (if any) of the aggregate Principal of each Group over the Group Loan Limit of each such Group, (H) the aggregate Principal of any Exiting Lenders, (I) the Pool Deficiency Amount (if any), (J) the total Deemed Collections for such Settlement Period, (K) the amount of all other Obligations payable on the next Settlement Date, (L) the Excess Concentration Amount, (M) the Pool Receivables (and the aggregate Financed Unpaid Balance thereof) that are subject to the Conditional Service Guaranty and have been originated within the six (6) months prior to such Reporting Date, (N) the amount of Monthly Collections, and (O) the amount of Supporting LC Draw Proceeds received during such Settlement Period;
(ii) the information specified in clause (i) above as determined (including on a pro forma basis, as applicable) based on Financed Unpaid Balances as of the Cut-off Date, after giving effect to all Transfers effected since the most recent Cut-off Date, including any such Transfers to be effected on or prior to the next Settlement Date;
(iii) the computation of the Collections and Supporting LC Draw Proceeds available for allocation pursuant to each sub-sections (i) through (ix) of Section 3.01(d), (e) and (f) on the next Settlement Date; and
(iv) the computation of the Loans, if any, to be funded by the Lenders on the next Settlement Date.
(d) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shallSettlement Date, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available thereforin the Payment Account, transfer to the Administrative Agent the Monthly Collections for the Administrative Agent to distribute for the following purposes and in the following order of priority as identified in the related Information Package:
(i) first, to the Servicer, all accrued then due and unpaid Servicing Fee;
(ii) second, to the Collateral Agent and the Administrative Agent in respect of all costs, expenses, Fees and Indemnified Amounts then due and payable to the Collateral Agent and the Administrative Agent (solely in their capacities as such) under this Agreement and the other Transaction Documents; provided, that the expenses and Indemnified Amounts payable under this clause (ii) on any Settlement Date shall not in the aggregate exceed [REDACTED];
(iii) third, on a pro rata and pari passu basis, (A) to each Group Agent ratably (based on the aggregate accrued and unpaid Interest and Fees due and payable to them and the members of their respective Groups) Interest accrued and unpaid on all Rate Tranches relating to the Receivable Pool for the Lenders in its Group howsoever funded or maintained during or prior to the most recently ended Settlement Period and to the accrued and unpaid Fees for its Group then due and payable, and (B) to each Hedge Counterparty, any net amounts (other than Hedge Termination Payments) required to be paid to such Hedge Counterparty on or prior to such Settlement Date under the applicable Hedge Agreements;
(iv) fourth, on a pro rata and pari passu basis, (I) to the Group Agents to the reduction of the Aggregate Principal (A) if clause (C) below does not apply, to reduce, to the extent necessary, the Pool Deficiency Amount to zero in the priority set forth in Section 3.01(e), ratably (based upon the respective amounts of reduction of Principal owed to each Group in respect of each application to the Lenders in each such Group Agent’s Group), determined without taking into account any Receivables to be acquired by the Borrower on such Settlement Date funded by Loans made on such Settlement Date, (B) if clause (C) below does not apply, in the amount required (without duplication of any amounts otherwise paid under this Section 3.01(d)) pursuant to an optional prepayment in accordance with Section 3.02(b), ratably (based upon their respective aggregate Principal), or (C) during the continuance of an Event of Termination or an Unmatured Event of Termination or following the Termination Date, (1) first, the Administrative Agent shall apply Monthly Collections ratably (based upon their respective aggregate Principal of Non-Enhanced Loans) to reduce the aggregate Principal of the Non-Enhanced Loans to zero, and (2) second, the Administrative Agent shall apply Monthly Collections ratably (based upon their respective aggregate Principal of Enhanced Loans after giving effect to any application of Supporting LC Draw Proceeds on such Settlement Date pursuant to Section 3.01(f)) to reduce the aggregate Principal of the Enhanced Loans to zero; provided, that for the avoidance of doubt, any amounts paid to any Group Agent pursuant to this clause (iv) shall be applied in reduction of the Principal of the relevant Lenders in such Group Agent’s Group, and (II) to each Hedge Counterparty, any Senior Hedge Termination Payments required to be paid to such Hedge Counterparty on or prior to such Settlement Date under the applicable Hedge Agreements;
(v) fifth, to the Group Agents and the Lenders ratably (based on the aggregate accrued and unpaid Borrower Obligations owing) in respect of all costs, expenses and Indemnified Amounts due and payable to the Group Agents and the Lenders (solely in their capacities as such) under this Agreement and the other Transaction Documents;
(vi) sixth, ratably (based upon the amounts due and payable), to the Collateral Agent and the Administrative Agent in respect of expenses and Indemnified Amounts due and payable to the Collateral Agent and the Administrative Agent, to the extent such amounts were not paid pursuant to clause (ii) above,
(vii) seventh, to each Group Agent ratably (based on the aggregate accrued and unpaid Borrower Obligations owing to their respective Groups) all accrued and unpaid other Borrower Obligations due and payable to any Affected Persons in such Group Agent’s Group;
(viii) eighth, to the account bank(s) maintaining any Collection Account, Concentration Account or Payment Account, any fees, returned item amounts or other amounts due and owing to such account bank(s) in respect of such accounts or the related Control Agreements that remain unpaid;
(ix) ninth, to each Hedge Counterparty, any Subordinated Hedge Termination Payments required to be paid to such Hedge Counterparty on or prior to such Settlement Date under the applicable Hedge Agreements; and
(x) tenth, to the Borrower, for its own account, any remaining amounts.
(e) The Administrative Agent shall apply Monthly Collections in the Payment Account which are available to reduce the Pool Deficiency Amount in accordance with clause (iv)(I)(A) of Section 3.01(d) to the applicable Group Agents, pari passu based upon respective amounts owed to each Lender in the related Groups for each such specified application in the following order: (i) first, to apply such Monthly Collections to reduce the aggregate Principal of Non-Enhanced Loans to an amount equal to the Borrowing Base at such time, (ii) second, (after giving effect to any application of Supporting LC Draw Proceeds on such Settlement Date pursuant to Section 3.01(f)) to apply such Monthly Collections to reduce the Aggregate Principal to an amount equal to the Enhanced Borrowing Base at such time, (iii) third, to reduce the Aggregate Principal to an amount equal to the Facility Limit, (iv) fourth, to reduce each Group’s aggregate Principal to an amount equal to the related Group Loan Limit, and (v) fifth, to reduce the aggregate Principal of all Exiting Lenders to zero.
(f) The Administrative Agent shall, pursuant to Section 7.09, draw on one or more Supporting Letters of Credit and apply the resulting Supporting LC Draw Proceeds on each Purchasers’ Share Settlement Date as follows to the applicable Group Agents, pari passu based upon respective aggregate Principal of the Servicing Fee accrued through Enhanced Loans owed to each Lender in the related Groups for each such day specified application:
(i) If the following clause (f)(ii) does not apply, in the following order (A) first, to reduce the aggregate Principal of the Enhanced Loans so that the Aggregate Principal equals the Enhanced Borrowing Base at such time, (B) second, to reduce the aggregate Principal of the Enhanced Loans so that the Aggregate Principal equals the Facility Limit, and not previously set aside;(C) third, to reduce the aggregate Principal of the Enhanced Loans of a Group so that the aggregate Principal of all Loans of such Group equals the related Group Loan Limit; or
(ii) subject to Section 1.4(f), if such day is not a During the continuance of an Event of Termination Day, remit to or upon and after the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit occurrence of the Purchasers (and shallTermination Date, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest aggregate Principal of the Enhanced Loans to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;zero.
Appears in 1 contract
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased InterestAssets Coverage Percentage.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:, including pursuant to Section 1.6(g):
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Groupthe Purchasers, out of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter Fees accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f1.6(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, Seller the remainder of such Collections. Such remainder shall, (x) to the extent representing a return on of the Aggregate Capital, ratably, be automatically reinvested (ratably among the Purchasers according to each Purchaser’s Capital, be automatically reinvested ) in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto and (each such reinvestmenty) to the extent not representing a return of the Aggregate Capital, a “Reinvestment,” and “Reinvest” shall have be paid to the correlative meaning)Seller in respect of the Deferred Purchase Price for the Purchased Assets; provided, however, that if the Purchased Interest Assets Coverage Percentage would exceed 100%, then the Servicer shall not Reinvestreinvest or remit to the Seller, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest Assets Coverage Percentage to 100%% (determined as if such Collections set aside had been applied to reduce the Aggregate Capital or Aggregate Adjusted LC Participation Amount, as applicable, at such time), which amount shall either (A) be deposited ratably to each Purchaser Agent’s account the Administration Account (for the benefit of its related Purchasers and to the Purchasers) or (B) be applied deposited in reduction of their respective Capital) an LC Collateral Account, in each case, as applicable, on the next Weekly Settlement Date in accordance with Section 1.4(c1.6(c); provided, further, that if (x) in the Facility Termination Date has been extended pursuant to Section 1.11 and case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (or a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.111.12, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then in either case (x) or (y), above, such Purchaser’s ratable share (determined according to outstanding Capital) of such remaining Collections shall not be Reinvested reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) belowbelow (it being understood and agreed that the foregoing clause (x) shall not limit any obligation of a Committed Purchase in a Declining Conduit Purchaser’s Purchaser Group to make purchases and reinvestments hereunder),
(iii) if such day is a Termination Day (or any day following the provision of a Declining Notice or an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of the Purchasers the entire remainder of such Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser an amount equal to such Purchaser’s ratable share (determined according to outstanding Capital) of such Collections; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice, as the case may be, until the date such Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Declining Conduit Purchaser’s or Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated)); provided, further, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of a Declining Notice or an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and the Majority Purchaser Agents (or in the case of a Declining Notice or an Exiting Notice, such Declining Notice or Exiting Notice, as the case may be, has been revoked by the related Declining Conduit Purchaser or Exiting Purchaser, respectively and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return of Aggregate Capital (or the Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably (determined according to outstanding Capital), be reinvested and/or paid to the Seller in respect of the Deferred Purchase Price for the Purchased Assets in accordance with clause (ii) above on the day of such subsequent satisfaction or waiver of conditions or revocation of Declining Notice or Exiting Notice, as the case may be, and
(iv) subject to Section 1.6(f), pay to the Seller (on behalf of the Administrator and the Purchasers) for the Seller’s own account and in payment of the Deferred Purchase Price for the Purchased Assets any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) above or the last proviso to clause (iii) above, plus (y) the amounts that are required to be set aside pursuant to clause (i) above, the provisos to clause (ii) and clause (iii) above, plus (z) all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.6(d), deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or, solely with respect to Collections held for the Purchasers pursuant to Section 1.6(f)(iii), such other date approved by the Administrator with at least five (5) Business Days prior written notice to the Administrator of such payment), Collections held for the Purchasers pursuant to Section 1.6(b)(i), (ii) or (iii) or 1.6(f); provided, that if Peabody or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified Peabody (or such Affiliate) that the right to retain the portion of Collections set aside pursuant to Section 1.6(b)(i) that represents the Servicing Fee is revoked, Peabody (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.6(b)(i) that represents the Servicing Fee in payment in full of the accrued Servicing Fees so set aside. On the last day of each Settlement Period, each Purchaser (or its Purchaser Agent on its behalf) will notify the Servicer by electronic mail of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c) above, the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Assets Coverage Percentage does not exceed 100%, first to the Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) in payment in full of all accrued Discount and Fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) above and has not retained such amounts pursuant to clause (c) above, to the Servicer (payable in arrears on each Settlement Date) in payment in full of the accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Assets Coverage Percentage exceeds 100%, first to the Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) in payment in full of all accrued Discount and Fees, second to the Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Assets Coverage Percentage to 100%) (determined as if such Collections had been applied to reduce the aggregate outstanding Capital), third, to the LC Collateral Accounts for the benefit of the LC Bank and the LC Participants, (x) the amount (if any) necessary to cause the amount of cash collateral held in the LC Collateral Accounts (other than amounts representing LC Fee Expectation) to equal the aggregate outstanding amount of the Aggregate LC Participation Amount (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Assets Coverage Percentage to 100%) (determined as if such Collections had been applied to reduce the aggregate outstanding amount of the Aggregate LC Participation Amount) and (y) if such day is a Termination Day or a Termination Event is continuing, an amount equal to the LC Fee Expectation at such time (or such portion thereof not currently on deposit in the LC Collateral Accounts), fourth, to the Servicer in payment in full of all accrued Servicing Fees, fifth, if all amounts owing under clauses first through fourth above have been paid in full, to the Purchaser Agents (for the benefit of such Purchaser Agent and the Purchasers in their respective Purchaser Groups), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder, and sixth, after the occurrence of the Final Payout Date, all additional Collections with respect to the Purchased Assets shall be paid to the Seller for its own account in payment of the Deferred Purchase Price for such Purchased Assets.
(e) For the purposes of this Section 1.6:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section l(g) or (m) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full and upon receipt of cash payments in full of the amounts specified in this clause (ii) in a Lock-Box Account, all right, title and interest of the Administrator, any Purchaser Agent or any Purchaser to the relevant Pool Receivable and Related Security shall pass to the Seller (or, to the extent such interest of the Administrator, any Purchaser Agent or any Purchaser is a beneficial interest in the relevant Pool Receivable and Related Security, shall be extinguished); provided, that any such reconveyance or release shall be without representation or warranty, but free and clear of all liens, security interests, charges, and encumbrances created by the Administrator, any Purchaser Agent or any Purchaser;
(iii) except as provided in clause (i) or (ii) above, or as otherwise required by Applicable Law or the relevant Contract, all Collections received from an Obligor (or Eligible Supporting Letter of Credit Provider) of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator, such Purchaser Agent or such Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator, such Purchaser Agent or such Purchaser, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex C (the “Paydown Notice”) at least two Business Days prior to the date of such reduction for any reduction of Aggregate Capital and such notice shall include the amount of such reduction and the proposed date on which such reduction shall commence;
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of the Administrator (for the benefit of each Purchaser), for payment to the Administrator by deposit into the Administration Account on the next Settlement Date immediately following the current Settlement Period or such other date approved by the Administrator and the Majority Purchaser Agents, and Capital shall be deemed reduced in the amount to be paid to the Administrator only when in fact finally so paid; provided, that the amount of any such reduction shall be not less than $300,000 and shall be an integral multiple of $100,000. Upon receipt by the Administrator in the Administration Account of any amount paid in reduction of the Aggregate Capital pursuant to sub-clause (iii) above, the Administrator shall cause such funds to be distributed to the Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) in payment of each Purchaser’s outstanding Capital.
(g) In accordance with Section 2(l)(iv) of Exhibit IV, the Servicer will deliver an Interim Report to the Administrator once per week, provided, that following the occurrence of a Minimum Cash Liquidity Event or the occurrence and continuance of a Termination Event or Unmatured Termination Event, the Servicer will, at the request of the Administrator, deliver an Interim Report to the Administrator on each Business Day. Upon receipt of such Interim Report, the Administrator shall promptly review such Interim Report to determine if such Interim Report constitutes a Qualifying Interim Report. In the event that the Administrator reasonably determines that such Interim Report constitutes a Qualifying Interim Report, so long as no Termination Event
Appears in 1 contract
Sources: Receivables Purchase Agreement (Peabody Energy Corp)
Settlement Procedures. (a) The collection Collection of the Pool Receivables shall be administered by the Servicer a Collection Agent, in accordance with the terms of Article VI of this Agreement. The Seller shall provide to the Servicer Collection Agent (if other than the Seller) on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Liquidation Day and current computations of the Purchased each Receivable Interest.
(b) The Servicer Collection Agent shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicerit:
(i) with respect to each Receivable Interest, set aside and hold in trust (and shalland, at the request of the AdministratorAgent, segregate in a separate account approved by the Administratorsegregate) for the benefit of each Purchaser GroupInvestors that hold such Receivable Interest, out of the percentage of such Collections, (x) an amount equal to the Aggregate Discount accrued through Collections represented by such day for each Portion of Capital and not previously set aside, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available thereforReceivable Interest, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Yield, Fees and Collection Agent Fee accrued through such day for such Receivable Interest and not previously set aside;
(ii) subject with respect to Section 1.4(f)each Receivable Interest, if such day is not a Termination DayLiquidation Day for such Receivable Interest, remit to reinvest with the Seller, ratably, Seller on behalf of each Purchaser Group, the remainder Investors that hold such Receivable Interest the percentage of such Collections. Such remainder Collections represented by such Receivable Interest, to the extent representing a return of Capital, by recomputation of such Receivable Interest pursuant to Section 2.03;
(iii) if such day is a Liquidation Day for any one or more Receivable Interests, set aside and hold in trust (and, at the request of the Agent, segregate) for the Investors that hold such Receivable Interests all of the remaining Collections (but not in excess of the Capital of such Receivable Interests); PROVIDED that if amounts are set aside and held in trust on any Liquidation Day occurring prior to the Termination Date, and thereafter prior to the Settlement Date for such Fixed Period the conditions set forth in Section 3.02 are satisfied or waived by the Agent, such previously set aside amounts shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s of Capital, be automatically reinvested in Pool Receivablesaccordance with the preceding subsection (ii) on the day of such subsequent satisfaction or waiver of conditions; and
(iv) during such times as amounts are required to be reinvested in accordance with the foregoing subsection (ii) or the proviso to subsection (iii), release to the Seller for its own account any Collections in excess both of such amounts and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections amounts that are required to be set aside pursuant to subsection (i) above.
(c) The Collection Agent shall deposit into the Agent's Account, on the Settlement Date for each Receivable Interest, Collections held for the Investors that relate to such Receivable Interest pursuant to Section 2.04(b).
(d) Upon receipt of funds deposited into the Agent's Account, the Agent shall distribute them as follows:
(i) if such distribution occurs on a day that is not a Liquidation Day, first to the Investors that hold the relevant Receivable Interest and to the Agent in payment in full of all accrued Yield and Fees and then to the Collection Agent in payment in full of all accrued Collection Agent Fee.
(ii) if such distribution occurs on a Liquidation Day, first to the Investors that hold the relevant Receivable Interest and to the Agent in payment in full of all accrued Yield and Fees, second to such Investors in reduction to zero of all Capital, third to such Investors or the Agent in payment of any other amounts owed by the Seller hereunder, and fourth to the Collection Agent in payment in full of all accrued Collection Agent Fee. After the Capital, Yield, Fees and Collection Agent Fee with respect to a Receivable Interest, and any other amounts payable by the Seller to the Investors or the Agent hereunder, have been paid in full, all additional Collections with respect to such Receivable Interest shall be paid to the Seller for its own account.
(e) For the purposes of this paragraphSection 2.04:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected or returned merchandise or services, or any cash discount, discount for quick payment or other adjustment made by the Seller or an Originator, or any setoff, the Seller shall equal be deemed to have received on such day a Collection of such Pool Receivable in the amount necessary of such reduction or adjustment;
(ii) if on any day any of the representations or warranties contained in Section 4.01(h) is no longer true with respect to reduce any Pool Receivable, the Purchased Interest Seller shall be deemed to 100%have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in subsection (i) or (ii) of this Section 2.04(e), which or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivables shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Agent or the Investors shall be required for any reason to pay over to an Obligor any amount received on its behalf hereunder, such amount shall be deposited ratably deemed not to each Purchaser Agent’s account (have been so received but rather to have been retained by the Seller and, accordingly, the Agent or the Investors, as the case may be, shall have a claim against the Seller for the benefit of its related Purchasers such amount, payable when and to be applied in reduction of their respective Capital) the extent that any distribution from or on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.11 and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer behalf of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held Obligor is made in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;respect thereof.
Appears in 1 contract
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter Fees accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)Rights; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestremit such remainder to the Seller or reinvest it, but shall set aside and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraphclause (ii), shall equal the amount necessary to reduce the Purchased Interest to 100%% (determined as if such Collections set aside had been applied to reduce the Aggregate Capital at such time), which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective CapitalPurchasers) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if in the Facility Termination Date has been extended pursuant to Section 1.11 and case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s its refusal, pursuant to Section 1.111.22, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then ), then, such Collections shall not be Reinvested reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below,
(iii) if such day is a Termination Day (or a day on which the Commitment of an Exiting Purchaser terminates), set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of such Collections (or, in the case of an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Capital; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Capital shall be deemed to remain constant from the day on which the Commitment of such Exiting Purchaser terminates, until the date such Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated); provided, further, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day on which the Commitment of such Exiting Purchaser terminates) and, thereafter, the conditions set forth in Section 3 of Exhibit II are satisfied or waived by the Administrator and the Majority Purchaser Agents (or in the case of an Exiting Notice, such Exiting Notice has been revoked by the related Exiting Purchaser and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Capital (or the Capital of the Exiting Purchaser) and ratably in accordance with each Purchaser’s Capital, be reinvested in accordance with clause (ii) above on the day of such subsequent satisfaction or waiver of conditions or revocation of Exiting Notice, as the case may be, and
(iv) subject to Section 1.4(f), release to the Seller for its own account any Collections in excess of: (x) the amounts that are required to be set aside or reinvested pursuant to clauses (i), (ii) and (iii) above plus (y) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the LC Bank, the Administrator and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d) below, deposit into each applicable Purchaser Agent’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date (for any Portion of Capital), Collections held for each Purchaser pursuant to Sections 1.4(b)(i), (ii) and (iii) and Section 1.4(f); provided, that if ▇▇▇▇▇ or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified ▇▇▇▇▇ (or such Affiliate) that such right is revoked, ▇▇▇▇▇ (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of each Purchasers’ Share of the Servicing Fee. On or prior to the last day of each Yield Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Yield Period or portion thereof.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day, that is not a day on which the Commitment of an Exiting Purchaser terminates and on which the Purchased Interest does not exceed 100%, first to each Purchaser Agent ratably (based on the Discount and Fees accrued during such Yield Period) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and Fees with respect to each Portion of Capital maintained by the Purchasers within such Purchaser Agent’s Purchaser Group; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably according to Discount and Fees, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to Section 1.4(b)(i) and has not retained such amounts pursuant to Section 1.4(c), to the Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day, on a day on which the Commitment of an Exiting Purchaser terminates or on a day when the Purchased Interest exceeds 100%, first if ▇▇▇▇▇ or an Affiliate thereof is not the Servicer, to the Servicer’s own account in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second to each Purchaser Agent ratably (based on the Discount and Fees accrued during such Yield Period) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount and Fees with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, third to each Purchaser Agent ratably (based on the aggregate of the Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group) (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of (x) if such day is a Termination Day, each Purchaser’s Capital, (y) if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%; provided, that, prior to the Non-Pro Rata Funding Termination Date, so long as such day is not a Termination Day, any distribution to reduce the Purchased Interest pursuant to this clause (y) shall first be applied to the portion of the Purchased Interest relating to the MUFG Purchaser Group until the date on which no Capital in respect of such Purchased Interest shall be outstanding before reducing the Purchased Interest of the PNC Purchaser Group, or (z) if such day is a day on which the Commitment of an Exiting Purchaser terminates, an amount equal to the Exiting Purchaser’s ratable share of the Collections set aside pursuant to Section 1.4(b)(iii) based on its Capital (determined as if such Collections had been applied to reduce the Aggregate Capital); it being understood that each Purchaser Agent shall distribute the amounts described in the second and third clauses of this clause (ii) to the Purchasers within its Purchaser Group ratably (based on Discount and Fees and Capital, respectively), fourth, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants, (x) the amount necessary to cash collateralize the LC Participation Amount until the amount of cash collateral held in such LC Collateral Account equals 100% of the LC Participation Amount and (y) if such day is a Termination Day of the type described in clause (b) of the definition thereof or if a Termination Event is continuing, an amount equal to the LC Fee Expectation at such time (or such portion thereof not currently on deposit in the LC Collateral Account), fifth, if the Aggregate Capital and accrued Aggregate Discount with respect to each Portion of Capital for all Purchaser Groups have been reduced to zero, the Fees have been paid in full and the Purchasers’ Share of all accrued Servicing Fees payable to the Servicer (if other than ▇▇▇▇▇ or an Affiliate thereof) have been paid in full, to each Purchaser Group ratably (based on the amounts payable to each) (for the benefit of the Purchasers within such Purchaser Group), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder and sixth, to the Servicer’s own account (if the Servicer is ▇▇▇▇▇ or an Affiliate thereof) in payment in full of the aggregate of the Purchaser’s Share of all accrued Servicing Fees. After the Capital (on and after a day when the Purchased Interest exceeds 100% or any day on which the Commitment of an Exiting Purchaser terminates), Aggregate Discount, Fees and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder have been paid in full, and (on and after a Termination Day) after Aggregate Capital and an amount equal to 100% of the LC Participation Amount and the LC Fee Expectation has been deposited in the LC Collateral Account, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and shall, subject to Section 1.4(e)(v), immediately pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4(b);
(ii) if on any day any of the representations or warranties in Sections 1(j) or 3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of the full Outstanding Balance of such Pool Receivable and shall, subject to Section 1.4(e)(v), immediately pay any and all such amounts in respect thereof to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4(b) (Collections deemed to have been received pursuant to Sections 1.4(e)(i) or (ii) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) except as provided in Sections 1.4(e)(i) or (ii) or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables;
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof; and
(v) if at any time before the Facility Termination Date the Seller is deemed to have received any Deemed Collection under Sections 1.4(e)(i) and (ii), so long as no Termination Day then exists, the Seller may satisfy its obligation to deliver the amount of such Deemed Collections to a Lock-Box Account by instead recalculating (or being deemed to have recalculated) the Purchased Interest by decreasing the Net Receivables Pool Balance by the amount of such Deemed Collections, so long as such adjustment does not cause the Purchased Interest to exceed 100%.
(f) If at any time the Seller wishes to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex E (each, a “Paydown Notice”) (A) at least two (2) Business Days prior to the date of such reduction for any reduction of the Aggregate Capital less than or equal to $25,000,000 (or such greater amount as agreed to by the Administrator and the Majority Purchaser Agents) and (B) at least five (5) Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $25,000,000, and each such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser, for payment to each such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) on the next Settlement Date (or such other date as agreed to by the Administrat
Appears in 1 contract
Sources: Receivables Purchase Agreement (Kelly Services Inc)
Settlement Procedures. (a) The collection Collection of the Pool Receivables shall be administered by the Servicer in accordance with the terms of this Agreement. The Seller All Collections of Receivables shall provide be remitted on a daily basis to the Servicer on Lock-Box Accounts. All amounts deposited to a timely basis all information needed for such administration, including notice Lock-Box Account shall be identified as Collections of Receivables and collections of Excluded Receivables ("Excluded Receivables Collections"). All Excluded Receivables Collections shall be removed from each Lock-Box Account within one (1) Business Day of deposit thereof and remitted to the occurrence of any Termination Day and current computations of the Purchased InterestOriginator pursuant to Section 4.2(b).
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shalland, at the request of the AdministratorAgent, segregate in by depositing into a separate account approved by the AdministratorAgent) for the benefit of each Purchaser GroupIssuer, the Agent, the Affected Persons and the Indemnified Parties, as applicable, out of the percentage of such Collections, (x) Collections represented by the Purchased Interest an amount equal to (A) first, the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside; (B) second, (y) an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of Program Fees accrued through such day for the Purchased Interest and not previously set aside; (C) third, to the extent funds are available therefor, an amount equal to the Servicing Fee accrued through such day for the Purchased Interest and not previously set aside; and (D) if such day is a Termination Day, fourth, all other amounts (other than Capital) payable to the Issuer, the Agent, and any other Affected Person or Indemnified Party;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Issuer, the remainder of all such Collections. Such remainder shall, Collections that were not set aside pursuant to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, paragraph (i) above; such Collections shall be automatically reinvested in Pool Receivables, and in the Related Security, Security and Collections and other proceeds with respect thereto (each such reinvestmentthereto, a “Reinvestment,” and “Reinvest” the Purchased Interest shall have the correlative meaning)be automatically recomputed pursuant to Section 1.3; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvest, reinvest but shall set aside and hold in trust for the benefit of the Purchasers Issuer (and shall, at the request of the AdministratorAgent, segregate in a separate account approved by the AdministratorAgent) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%;
(iii) if such day is a Termination Day, which set aside, segregate and hold in trust (and shall at the request of the Agent, segregate in a separate account approved by the Agent) for the Issuer all Collections less the amount set aside pursuant to paragraph (i) above; provided that if amounts are set aside and held in trust, on any Termination Day of the type described in clause (a) of the definition of "Termination Day", and on such day or thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or are waived by the Agent, such previously set aside amounts shall be reinvested in accordance with the preceding paragraph (ii) on the day of such subsequent satisfaction or waiver of conditions; and
(iv) during such times as amounts are required to be reinvested in accordance with the foregoing paragraph (ii) or the proviso to paragraph (iii), release to the Seller within one (1) Business Day (subject to Section 1.4(f)) for its own account any Collections in excess of (x) such amounts, (y) the amounts that are required to be set aside pursuant to paragraph (i) above, the proviso to paragraph (ii) above and paragraph (iii) above and (z) all reasonable and appropriate out-of-pocket costs and expenses of the Servicer of servicing, collecting and administering the Receivables.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Agent), (i) on the last day of each Settlement Period relating to a Portion of Capital, Collections held for the Issuer pursuant to Section 1.4(b)(i)(A) and Section 1.4(f), if applicable, with respect to such Portion of Capital and the lesser of (x) the amount of Collections then held for the Issuer pursuant to Sections 1.4(b)(ii) and 1.4(b)(iii) and (y) the sum of such Portion of Capital and any amounts due under this Agreement other than Capital, Discount, Program Fees or Servicer Fees and (ii) on each Settlement Date, Collections held for the Issuer pursuant to clauses (B) and (C) of Section 1.4(b)(i), provided that so long as CITGO is the Servicer and the Agent has not requested the Servicer to deposit into a separate account those Collections set aside pursuant to Section 1.4(b)(i), the Servicing Fee may be retained by the Servicer rather than deposited into the Administration Account.
(d) Upon receipt of funds deposited into the Administration Account pursuant to Section 1.4(c) with respect to any Portion of Capital, the Agent shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Issuer in payment in full of all accrued Discount with respect to such Portion of Capital, second, to the Issuer (payable in arrears on the Settlement Date) in payment in full of all accrued Program Fees and third, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (C) of Section 1.4(b)(i) and deposited such amounts in the Administration Account pursuant to Section 1.4(c), to the Servicer (payable in arrears on the Settlement Date) in payment in full of accrued Servicing Fees so set aside; and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, to the Issuer in payment in full of all accrued Discount with respect to such Portion of Capital, second, to the Issuer in payment in full of all accrued Program Fees, third, if CITGO is not the Servicer and the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (C) of Section 1.4(b)(i) and deposited such amounts in the Administration Account pursuant to Section 1.4(c), to the Servicer in payment in full of all accrued Servicing Fees, fourth, to the Issuer, the Agent and any other Affected Person or Indemnified Party all other amounts (other than Indemnified Amounts) payable to the Issuer, the Agent and any other Affected Person or Indemnified Party under this Agreement and other Transaction Documents, including, without limitation, amounts payable pursuant to Section 5.04, fifth, to the Issuer in payment in full of such Portion of Capital (or if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), sixth, if the Capital and accrued Discount with respect to each Portion of Capital has been reduced to zero, all accrued Program Fees payable to the Issuer have been paid in full, all amounts payable to the Issuer, the Agent and any other Affected Person or Indemnified Party pursuant to clause fourth above, have been paid in full, and all accrued Servicing Fees payable to the Servicer pursuant to clause third above have been paid in full, to the Issuer, the Agent and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder and seventh, if CITGO is the Servicer and the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (C) of Section 1.4(b)(i) and deposited such amounts in the Administration Account pursuant to Section 1.4(c), to the Servicer in payment in full of all accrued Servicing Fees. After the Capital and Discount, Program Fees and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller to the Issuer, the Agent or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional or remaining Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any discount or other adjustment made by the Seller, or any setoff or dispute between the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties of the Seller in paragraphs (g) or (o) of Exhibit III or Sections 2, 3 or 4 of Exhibit VII is not true with respect to any Receivable, the Seller shall be deemed to have received on such day a Collection of such Receivable in full;
(iii) except as provided in paragraph (i) or (ii) of this Section 1.4(e), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor with respect to any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Agent or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deposited ratably deemed not to each Purchaser Agent’s account (have been so received but rather to have been retained by the Seller and, accordingly, the Agent or the Issuer, as the case may be, shall have a claim against the Seller for the benefit of its related Purchasers such amount, payable when and to be applied the extent that any distribution from or on behalf of such Obligor is made in respect thereof. The Seller shall deposit to the Administration Account an amount equal to all Collections deemed to have been received by the Seller pursuant to this Section 1.4(e).
(f) If at any time the Seller shall wish to cause the reduction of their respective Capitala Portion of Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the Seller shall give the Agent at least five Business Days' prior written notice thereof in substantially the form of Annex B (including the amount of such proposed reduction and the proposed date on which such reduction will commence),
(ii) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.11 proposed date of commencement of such reduction and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administratoron each day thereafter, the Seller and Servicer shall cause Collections with respect to such Portion of Capital not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction, and
(iii) the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then shall hold such Collections shall not be Reinvested and shall instead be held in trust for the benefit Issuer, for payment to the Agent on the last day of the current Settlement Period relating to such Purchaser Portion of Capital, and applied the applicable Portion of Capital shall be deemed reduced in accordance the amount to be paid to the Agent only when in fact finally so paid; provided that,
A. the entire Capital of the Purchased Interest after giving effect to such reduction shall be not less than $10,000,000,
B. the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Fixed Period, and
C. if two or more Portions of Capital shall be outstanding at the time of any proposed reduction, such proposed reduction shall be applied, unless the Seller shall otherwise specify in the notice given pursuant to Section 1.4(f)(i), to the Portion of Capital with clause (iii) below;the shortest remaining Fixed Period.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Citgo Petroleum Corp)
Settlement Procedures. (a) The collection Collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shalland, at the request of the Administrator, segregate in a separate account approved by the AdministratorAdministrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) for the benefit of each Purchaser GroupIssuer, out of the Issuer's Share of such Collections, (x) FIRST, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) SECOND, an amount equal to the fees set forth in each Purchaser Group the Fee Letter accrued and unpaid through such day, and (z) THIRD, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Issuer's Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section SECTION 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Issuer, the remainder of the Issuer's Share of such Collections. Such ; such remainder shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital, shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestmentthereto; PROVIDED, a “Reinvestment,” and “Reinvest” shall have the correlative meaning); provided, howeverHOWEVER, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestreinvest, but shall set aside and hold in trust for the benefit of the Purchasers Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the AdministratorAdministrator if, at the time of such request, there exists an Unmatured Termination Event or a Termination Event or if the failure to so segregate reasonably could be expected to cause a Material Adverse Effect) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraphCLAUSE (ii), shall equal the amount necessary to reduce the Purchased Interest to 100%; AND PROVIDED FURTHER, that any Collections received from a Letter of Credit Obligor for which disbursements have been made under a Letter of Credit shall be reimbursed to the Letter of Credit Issuer pursuant to SECTION 4.7(b);
(iii) if such day is a Termination Day, set aside, segregate and hold in trust for the Issuer the entire remainder of the Issuer's Share of the Collections; PROVIDED, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of "Termination Day" and, thereafter, the conditions set forth in Section 2 of EXHIBIT II are satisfied or waived by the Administrator, such previously set aside amounts shall be reinvested in accordance with CLAUSE (ii) above on the day of such subsequent satisfaction or waiver of conditions; AND PROVIDED FURTHER, that any Collections received from a Letter of Credit Obligor for which disbursements have been made under a Letter of Credit shall be reimbursed to the Letter of Credit Issuer pursuant to SECTION 4.7(b); and
(iv) subject to the Issuer's security interest under SECTION 1.2(d), release to the Seller (subject to SECTION 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with CLAUSE (ii) or the first proviso to CLAUSE (iii) PLUS (y) the amounts that are required to be set aside pursuant to CLAUSE (i), the first proviso to CLAUSE (ii) and CLAUSE (iii) PLUS (z) the Seller's Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables PLUS (aa) amounts required to be reimbursed to the issuer of a Letter of Credit in accordance with the second proviso to CLAUSE (ii) and/or the second proviso to CLAUSE (iii) PLUS (bb) any amounts reimbursable by the Seller to the issuer of a Letter of Credit pursuant to SECTION 4.7(b).
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on the last day of each Settlement Period (or on the Alternative Settlement Date, if applicable) relating to a Portion of Capital, Collections held for the Issuer pursuant to SECTION 1.4(b)(i) or SECTION 1.4(f) with respect to such Portion of Capital PLUS the lesser of: (i) the amount of Collections then held for the Issuer pursuant to SECTION 1.4(b)(ii) and SECTION 1.4(b)(iii) and (ii) such Portion of Capital; PROVIDED, that if Falcon is the Servicer and the Administrator has not notified Falcon that such right is revoked, Falcon may retain the portion of the Collections set aside pursuant to SECTION 1.4(b)(i) that represents the Issuer's Share of the Servicing Fee. On the last day of each Settlement Period (or on the Alternative Settlement Date, if applicable) relating to a Portion of Capital, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to such Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to SECTION 1.4(c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, FIRST to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to such Portion of Capital, and SECOND, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to SECTION 1.4(b)(i) and has not retained such amounts pursuant to SECTION 1.4(c), to the Servicer (payable in arrears on the last day of each Settlement Period) in payment in full of the Issuer's Share of accrued Servicing Fees so set aside with respect to such Portion of Capital; and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, FIRST to the Issuer in payment in full of all accrued Discount with respect to such Portion of Capital, SECOND to the Issuer in payment in full of such Portion of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), THIRD, if Falcon or an Affiliate thereof is not the Servicer, to the Servicer in payment in full of all accrued Servicing Fees with respect to such Portion of Capital, FOURTH, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than Falcon or an Affiliate thereof) have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder and, FIFTH, unless such amount has been retained by the Servicer pursuant to SECTION 1.4(c), then to the Servicer (if the Servicer is Falcon or an Affiliate thereof) in payment in full of the Issuer's Share of all accrued Servicing Fees. Notwithstanding the foregoing, if the Seller has elected to reduce a Portion of the Capital as of an Alternative Settlement Date pursuant to SECTION 1.4(f), on such Alternative Settlement Date the Servicer shall deposit into the Administration Account (or such other account designated by the Administrator) the portion of the Collections set aside pursuant to SECTION 1.4(f), and such amount shall be deposited ratably distributed to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied Issuer in reduction of their respective a Portion of the Capital) on , as selected by the next Weekly Settlement Date in accordance with Section 1.4(c); providedIssuer. After the Capital, furtherDiscount, that if the Facility Termination Date has been extended fees payable pursuant to Section 1.11 the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any Purchaser (or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this SECTION 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, or the Seller shall have received a Deemed Collection under the Sale Agreements (in each case, other than in respect of any Special Program Allowances), the Seller shall be deemed to have received on such day a Collection of such Purchaser’s refusalPool Receivable in the amount of such reduction, pursuant adjustment or Deemed Collection;
(ii) if on any day any of the representations or warranties in Section 1(h) or (o) of EXHIBIT III is not true with respect to Section 1.11any Pool Receivable, the Seller shall be deemed to extend have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in CLAUSE (i) or (ii) above, or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables;
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or its related Committed Purchaser’sany trustee, receiver, custodian or similar official in any Insolvency Proceeding) Commitment hereunder any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof; and
(v) on the Termination Date, the Seller shall be deemed to have received on such day Collections of Pool Receivables equal to: (A) the aggregate amount by which the Pool Receivables relating to the Special Program Allowances have been discounted, adjusted or otherwise reduced as noted in CLAUSE (i) MINUS (b) the Special Program Allowances.
(f) If at any time the Seller shall wish to cause the reduction of a Portion of Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the Seller shall give the Administrator and the Servicer at least two Business Days' prior written notice thereof (or at least three Business Days with regard to an “Exiting Purchaser”Alternative Settlement Date) then (including the amount of such proposed reduction and the proposed date on which such reduction will commence),
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections with respect to such Portion of Capital not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction, and
(iii) the Servicer shall hold such Collections shall not be Reinvested and shall instead be held in trust for the benefit Issuer, for payment to the Administrator on the last day of the current Settlement Period relating to such Purchaser Portion of Capital or on the next Alternative Settlement Date (as specified by the Seller), and applied the applicable Portion of Capital shall be deemed reduced in accordance the amount to be paid to the Administrator only when in fact finally so paid; PROVIDED, that:
A. the amount of any such reduction shall be not less than $1,000,000 and shall be an integral multiple of $250,000, and the entire Capital of the Purchased Interest after giving effect to such reduction shall be not less than $20,000,000 and shall be in an integral multiple of $250,000,
B. the Seller shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Settlement Period, and
C. if two or more Portions of Capital are outstanding at the time of any proposed reduction, such proposed reduction shall be applied, unless the Seller shall otherwise specify in the notice given pursuant to CLAUSE (f)(i), to the Portion of Capital with clause the shortest remaining Settlement Period (iii) below;or, if all such Portions of Capital have the same Settlement Period, pro rata).
Appears in 1 contract
Sources: Receivables Purchase Agreement (Falcon Building Products Inc)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day Business Day on which Collections of Pool Receivables are received (or deemed received) by the Seller or Servicer or are deposited into the ServicerLock-Box Accounts, transfer such Collections therefrom and deposit such Collections into a Collection Account. With respect to such Collections on such day, the Servicer shall:
(i) set aside and hold in trust (and shallby book entry or otherwise, at the request of or, if so requested by the Administrator, segregate segregated in a separate account approved by the Administrator) for the benefit of each Purchaser Group, out of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Group(ratably in accordance with the next succeeding sentence), the remainder of such Collections. Such remainder shall, to the extent representing a return on of the Aggregate Capital, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestremit such remainder to the Seller or reinvest, but shall set aside and hold in trust for the benefit of the Purchasers (and shallby book entry or otherwise or, at the request of if so requested by the Administrator, segregate segregated in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to be applied in reduction of their respective Capital) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that if (x) in the Facility Termination Date has been extended pursuant to Section 1.11 and case of any Purchaser that is an Uncommitted Purchaser, if such Purchaser has provided notice (or a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Uncommitted Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to the Administrator, the Seller and the Servicer its Purchaser Agent of such Purchaser’s either its refusal, pursuant to Section 1.111.22, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”) then in either case (x) or (y), above, such Collections shall not be Reinvested reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) ), below;
(iii) if such day is a Termination Day (or any day following the provision of a Declining Notice or an Exiting Notice), set aside, segregate and hold in trust (by book entry or otherwise or, if so requested by the Administrator, segregated in a separate account approved by the Administrator) for the benefit of each Purchaser Group the entire remainder of such Collections (or in the case of a Declining Uncommitted Purchaser or an Exiting Purchaser an amount equal to such Purchaser’s ratable share of such Collections based on its Capital; provided, that solely for the purpose of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice, as the case may be, until the date such Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Declining Uncommitted Purchaser’s or Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated)); provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of a Declining Notice or an Exiting Notice) and, thereafter, the conditions set forth in Section 2(b) of Exhibit II are satisfied or waived by the Administrator and the Majority Purchaser Agents (or in the case of a Declining Notice or an Exiting Notice, such Declining Notice or Exiting Notice, as the case may be, has been revoked by the related Declining Uncommitted Purchaser or Exiting Purchaser, respectively, and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on Aggregate Capital (or the Capital of the Declining Uncommitted Purchaser or Exiting Purchaser, as the case may be) and ratably in accordance with each Purchaser’s Capital, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of Declining Notice or Exiting Notice, as the case may be; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (w) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (x) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (y) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables plus (z) all other amounts due and unpaid by the Seller under this Agreement to the Purchasers, the LC Bank, any LC Participant, the Administrator, and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into each applicable Purchaser’s account (or such other account designated by such applicable Purchaser or its Purchaser Agent), on each Settlement Date for any Portion of Capital, Collections held for each Purchaser pursuant to clause (b)(i), (ii) and (iii) or (f) of Section 1.4; provided, that if Patriot or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified Patriot (or such Affiliate) that such right is revoked, Patriot (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the aggregate of the Purchasers’ Share of the Servicing Fee. Within two Business Days of the last day of each Yield Period with respect to any Portion of Capital, the applicable Purchaser Agent will notify the Servicer of the amount of the Discount accrued with respect to each such Portion of Capital during such related Yield Period or portion thereof.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first, to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Capital maintained by such Purchasers; second, to each Purchaser Agent ratably according to Fees accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Fees (other than Servicing Fees) with respect to each Portion of Capital maintained by such Purchasers; it being understood that each Purchaser Agent shall distribute the amounts described in the first and second clauses of this Section 1.4(d)(i) to the Purchasers within its Purchaser Group ratably according to Discount and Fees, respectively; third, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c) above, to the Servicer’s own account in payment in full of the Purchasers’ Share of all accrued and unpaid Servicing Fees and fourth, if such day is a day following the provision of a Declining Notice or an Exiting Notice, to each Purchaser Agent for each Declining Uncommitted Purchaser or Exiting Purchaser ratably according to the aggregate of the Capital of such Purchaser in accordance with clause (b)(iii) above in payment in full of such Purchaser’s Capital, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, to each Purchaser Agent ratably according to Discount (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, second, to each Purchaser Agent ratably according to Fees (for the benefit of the relevant Purchasers within such Purchaser Asset’s Purchaser Group), third, if (x) Patriot or an Affiliate thereof is not the Servicer and (y) the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c) above, to the Servicer’s own account in payment in full of the Purchasers’ Share of all accrued and unpaid Servicing Fees, fourth, to each Purchaser Agent ratably according to the aggregate of the Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), it being understood that each Purchaser Agent shall distribute the amounts described in the first, second and fourth clauses of this Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Discount, Fees and Capital, respectively, fifth, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants, the amount necessary to cash collateralize the LC Participation Amount until the amount of cash collateral held in such LC Collateral Account equals the aggregate outstanding amount of the LC Participation Amount (or, if such day is not a Termination Day, until the Purchased Interest is reduced to 100%), sixth, if the Aggregate Capital and accrued Aggregate Discount with respect to each Portion of Capital for all Purchaser Groups have been reduced to zero, and the Purchasers’ Share of all accrued Servicing Fees payable to the Servicer (if other than Patriot or an Affiliate thereof) have been paid in full, to each Purchaser Group ratably, based on the amounts payable to each (for the benefit of the Purchasers within such Purchaser Group), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller or Servicer hereunder, and seventh, to the Servicer’s own account (if the Servicer is Patriot or an Affiliate thereof) in payment in full of the Aggregate of the Purchasers’ Share of all accrued Servicing Fees. After the Aggregate Capital, Aggregate Discount, Fees payable pursuant to each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, and (on and after a Termination Day) after the LC Participation Amount has been cash collateralized in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and shall promptly (and in any event within three Business Days) pay any and all such amounts in respect thereof to a Collection Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4;
(ii) if on any day any of the representations or warranties in Sections 1(j), (n) or 3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full and shall promptly (and in any event within two Business Days) pay any and all such amounts to a Collection Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to this Section 1.4 (Collections deemed to have been received pursuant to clause (i) or (ii) of this paragraph (e) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) except as provided in clause (i) or (ii) above or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder and pays over such amount, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in substantially the form of Annex D (each, a “Paydown Notice”) at least one Business Day prior to the date of such reduction, which notice shall include the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of each Purchaser ratably according to its Capital, for payment to each such Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) on the next Settlement Date (or such other date as agreed to by the Administrator) with respect to any Portions of Capital funded or maintained by such Purchaser immediately following the r
Appears in 1 contract
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Groupthe Purchasers, out of such Collections, (x) an amount equal to the sum of (i) the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (yii) an amount equal to the fees set forth in each Purchaser Group the Fee Letter Letters accrued and unpaid through such dayday and not previously set aside, and (ziii) to the extent funds are available therefor, an amount equal to the aggregate of each the Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Purchasers, the remainder of such Collections. Such remainder shall, to the extent representing a return on of the Aggregate Capital, be automatically reinvested, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if if, after giving effect to any such reinvestment, (x) the Purchased Interest would exceed 100%, or (y) the Aggregate Capital plus the Adjusted LC Participation Amount would exceed the Purchase Limit then in effect, then the Servicer shall not Reinvestremit such remainder to the Seller or reinvest, but shall set aside and hold in trust for the Administrator (for the benefit of the Purchasers Purchasers) (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%% or cause the Aggregate Capital plus the Adjusted LC Participation Amount not to exceed the Purchase Limit, as the case may be (determined as if such Collections set aside had been applied to reduce the Aggregate Capital and/or the Adjusted LC Participation Amount at such time), which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers Purchasers) for distribution and to be applied in reduction of their respective Capital) application on the next Weekly Settlement Date in accordance with Section 1.4(c1.4(d); provided, further, that if in the Facility Termination Date has been extended pursuant to Section 1.11 and case of any Purchaser that has either (or i) provided notice to its Purchaser Agent) has provided notice (an “Exiting Notice”) to Agent and the AdministratorAdministrator of its refusal, following any request by the Seller and to extend the Servicer of such Purchaser’s refusal, pursuant to Section 1.11then-current Scheduled Termination Date, to extend its (or its related Committed Purchaser’s) Commitment hereunder or (ii) otherwise not affirmatively consented to any request by the Seller to extend the then-current Scheduled Termination Date (in either case, an “Exiting Purchaser”) ), then such Purchaser’s ratable share (determined according to outstanding Capital and Pro Rate Share of the Adjusted LC Participation Amount) of Collections shall not be Reinvested reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;
(iii) if such day is a Termination Day (or any Non-Extension Day), set aside, segregate and hold in trust for the benefit of the Purchasers or Exiting Purchasers, as applicable (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator), the entire remainder of such Collections (or in the case of any Non-Extension Day that is not also a Termination Day, an amount equal to the Exiting Purchasers’ ratable share of such Collections based on their respective Capital; provided, however, that solely for purposes of determining such Exiting Purchasers’ ratable share of such Collections, such Exiting Purchasers’ Capital shall be deemed to remain constant from the first Non-Extension Day until the date such Exiting Purchasers’ Capital has been paid in full; it being understood that if a Termination Day occurs following a Non-Extension Day, such Exiting Purchasers’ Capital shall be recalculated taking into account amounts received by such Exiting Purchasers in respect of this parenthetical and, thereafter, Collections shall be set aside for all Purchasers ratably in respect of their respective Capital (as recalculated)); and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (w) amounts required to be reinvested in accordance with clause (ii) plus (x) the amounts that are required to be set aside pursuant to clause (i) above, pursuant to the proviso to clause (ii) above and pursuant to clause (iii) above, plus (y) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the Purchaser Agents, the Administrator, and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit into the account specified by each Purchaser Agent on each Settlement Date, Collections held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to Section 1.4(b)(i) or 1.4(f) plus the amount of Collections then held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to Sections 1.4(b)(ii) and 1.4(b)(iii); provided, that if Lyondell Chemical or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified Lyondell Chemical (or such Affiliate) that such right is revoked, Lyondell Chemical (or such Affiliate) may retain the portion of the Collections set aside pursuant to Section 1.4(b)(i) that represents the aggregate of the Purchasers’ Share of the Servicing Fee. On or prior to the last day of each Settlement Period, each Purchaser Agent will notify the Servicer telephonically, by electronic mail or by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such related Settlement Period.
(d) The Servicer shall distribute the amounts described in Section 1.4(c) as follows:
(i) if such distribution occurs on a day that is not a Termination Day:
(A) first, to each Purchaser Agent ratably according to the Discount and Fees accrued during such Settlement Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all such accrued Discount with respect to each Portion of Capital maintained by such Purchasers and all such accrued Fees; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within such Purchaser Agent’s Purchaser Group ratably according to Discount and Fees, respectively; and
(B) second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to Section 1.4(b)(i) and has not retained such amounts pursuant to Section 1.4(c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside; and
(ii) if such distribution occurs on a Termination Day:
(A) first, to the Servicer (if other than Lyondell Chemical or an Affiliate thereof), in payment in full of the Purchasers’ Share of all accrued Servicing Fees;
(B) second, to each Purchaser Agent ratably (based on the aggregate accrued and unpaid Discount and Fees payable to all Purchasers at such time) (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group and all accrued Fees;
(C) third, to each Purchaser Agent ratably according to the aggregate of the Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Capital; it being understood that each Purchaser Agent shall distribute the amounts described in the first, second and third clauses of this Section 1.4(d)(ii) to the Purchasers within such Purchaser Agent’s Purchaser Group ratably according to Discount, Fees and Capital, respectively;
(D) fourth, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants, the amount necessary to cash collateralize the LC Participation Amount until the amount of cash collateral held in such LC Collateral Account equals 100% of the LC Participation Amount plus the aggregate amount of all LC Participation Fees and LC Fronting Fees to accrue thereon through the scheduled expiration of the related Letters of Credit;
(E) fifth, if the Aggregate Capital and accrued Aggregate Discount with respect to each Portion of Capital for all Purchaser Groups have been reduced to zero, and the aggregate of the Purchasers’ Share of all accrued Servicing Fees payable to the Servicer (if other than Lyondell Chemical or an Affiliate thereof) have been paid in full, to each Purchaser Agent ratably, based on the remaining amounts, if any, payable to each Purchaser in such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group), the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder; and
(F) sixth, to the Servicer (if the Servicer is Lyondell Chemical or an Affiliate thereof) in payment in full of the aggregate of the Purchasers’ Share of all accrued Servicing Fees. After the Aggregate Capital, Aggregate Discount, fees payable pursuant to the Fee Letters and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, and (on and after a Termination Day) after an amount equal to 100% of the LC Participation Amount and the Expected LC Fees is on deposit in the LC Collateral Account, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is either (A) reduced or canceled as a result of (I) any defective, rejected, returned goods or services, any cash or other discount, or any failure by an Originator to deliver any goods or perform any services or otherwise perform under the underlying Contract or invoice, (II) any change in or cancellation of any of the terms of such contract or invoice or any other adjustment by the Originator, the Servicer or the Seller which reduces the amount payable by the Obligor on the related Receivable, (III) any rebates, warranties, allowances or charge-backs or (IV) any setoff or credit in respect of any claim by the Obligor thereof (whether such claim arises out of the same or a related transaction or an unrelated transaction) or (B) subject to any specific dispute, offset, counterclaim or defense whatsoever (except the discharge in bankruptcy of the Obligor thereof), in either case, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction, adjustment, cancellation or dispute and shall, subject to Section 1.4(e)(v), (x) prior to the Termination Date, hold any and all such amounts in trust for the benefit of the Purchasers and their assigns and, on the following Settlement Date, apply such amounts in accordance with this Section 1.4 or (y) on or after the Termination Date, within two (2) Business Days of such reduction or adjustment, pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4;
(ii) if (x) the representation and warranty in Section l(j) of Exhibit III is not true on the day such representation and warranty is made or deemed made, (y) if any of the representations or warranties in Section 1(r) of Exhibit III is not true with respect to any Pool Receivable or (z) the Obligor with respect to any Pool Receivable is designated an Excluded Obligor in accordance with Section 4.2(b) on any day, the Seller shall be deemed to have received a Collection of the full Outstanding Balance of such Pool Receivable or such Excluded Receivable existing on the date of such designation, as applicable, and shall, within two (2) Business Days of such designation or of the Seller or the Servicer having knowledge or notice of any such inaccuracy, as applicable, subject to Section 1.4(e)(v), pay the amount of such deemed Collection to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4(b) (Collections deemed to have been received pursuant to Section 1.4(e)(i) or (ii) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) except as provided in Section 1.4(e)(i) and (ii) or as otherwise required by Applicable Law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates that its payment is to be applied to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(v) so long as no Termination Day then exists, the Seller may satisfy its obligation to deliver the amount of such Deemed Collections to a Lock-Box Account by instead recalculating (or being deemed to have recalculated) the Purchased Interest by decreasing the Net Receivables Pool Balance by the amount of such Deemed Collections, but only so long as the Purchased Interest does not exceed 100% after giving effect to such adjustment.
(f) If at any time the Seller shall wish to cause a voluntary reduction (in whole or in part) of the Aggregate Capital, the Seller may do so as follows:
(i) the Seller shall give the Administrator and each Purchaser Agent written notice in substantially the form of Annex C (each, a “Paydown Notice”) at least two Business Days prior to the date of such reduction, which Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) (A) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction or (B) the Seller shall remit to each Purchaser Agent’s account (for the benefit of the related Purchasers in such Purchaser Agent’s Purchaser Group), no later than 1:00 p.m. (New York City time), in immediately available funds, an amount equal to the desired amount of such reduction together with accrued and unpaid Aggregate Discount with respect to the amount of the Aggregate Capital reduced thereby and any amount due and payable under Section 1.8(a) in connection therewith, ratably based on such Purchaser Ag
Appears in 1 contract
Sources: Receivables Purchase Agreement (LyondellBasell Industries N.V.)
Settlement Procedures. (a) The collection of the Pool Receivables shall be administered by the Servicer in accordance with this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by remitted to the Seller or the Servicer:Servicer in accordance with this Agreement, including Section 1.4(g):
(i) set aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the benefit of each Purchaser Groupthe Secured Parties, out of such Collections, (x) first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, (y) second, an amount equal to the fees set forth in each Purchaser Group Fee Letter accrued and unpaid through such day, and (z) third, to the extent funds are available therefor, an amount equal to the aggregate of each the Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of each Purchaser Groupthe Purchasers, the remainder of such Collections. Such remainder shall, to the extent representing a return on the Aggregate Capital, be automatically reinvested, ratably, according to each Purchaser’s Capital, be automatically reinvested in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect thereto (each such reinvestment, a “Reinvestment,” and “Reinvest” shall have the correlative meaning)thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not Reinvestremit such remainder to the Seller or reinvest, but shall set aside and hold in trust for the Administrator (for the benefit of the Purchasers Secured Parties) (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%% (determined as if such Collections set aside had been applied to reduce the Aggregate Capital or LC Participation Amount, as applicable, at such time), which amount shall either (x) be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers and to Purchasers) or (y) be applied deposited in reduction of their respective Capital) the LC Collateral Account, in each case, as applicable, on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that (x) in the case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (a “Declining Notice”) to its Purchaser Agent and the Facility Termination Date has been extended Administrator that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to Section 1.11 and this clause (ii) or (y) in the case of any Purchaser (or its Purchaser Agent) that has provided notice (an “Exiting Notice”) to its Purchaser Agent and the AdministratorAdministrator of its refusal, following any request by the Seller and to extend the Servicer of such Purchaser’s refusal, pursuant to Section 1.11then Facility Termination Date, to extend its (or its related Committed Purchaser’s) Commitment hereunder (an “Exiting Purchaser”), then in either case set forth in clause (x) then or (y) above, such Purchaser’s ratable share (determined according to outstanding Capital) of Collections shall not be Reinvested reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;
(iii) if such day is a Termination Day (or any day following the provision of a Declining Notice or an Exiting Notice), set aside, segregate and hold in trust for the benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator), the entire remainder of such Collections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser, an amount equal to such Purchaser’s ratable share of such Collections based on its Capital; provided, that solely for purposes of determining such Purchaser’s ratable share of such Collections, such Purchaser’s Capital shall be deemed to remain constant from the date of the provision of a Declining Notice or an Exiting Notice, as the case may be, until the date such Purchaser’s Capital has been paid in full; it being understood that if such day is also a Termination Day, such Declining Conduit Purchaser’s or Exiting Purchaser’s Capital shall be recalculated taking into account amounts received by such Purchasers in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated)); provided, further, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” (or any day following the provision of a Declining Notice or an Exiting Notice) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and the Majority Purchaser Agents (or, in the case of a Declining Notice or an Exiting Notice, such Declining Notice or Exiting Notice, as the case may be, has been revoked by the related Declining Conduit Purchaser or Exiting Purchaser, respectively, and written notice thereof has been provided to the Administrator, the related Purchaser Agent and the Servicer), such previously set-aside amounts shall, to the extent representing a return on the Aggregate Capital (or the Capital of the Declining Conduit Purchaser or Exiting Purchaser, as the case may be) and ratably in accordance with each Purchaser’s Capital, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions or revocation of Declining Notice or Exiting Notice, as the case may be; and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (w) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (x) the amounts that are required to be set aside pursuant to clause (i), the provisos to clause (ii) and clause (iii) plus (y) the Seller’s Share of the Servicing Fee accrued and unpaid through such day and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables plus (z) all other amounts then due and payable by the Seller under this Agreement to the Purchasers, the Purchaser Agents, the Administrator, and any other Indemnified Party or Affected Person.
(c) The Servicer shall, in accordance with the priorities set forth in Section 1.4(d), deposit into each Purchaser Agent’s account, on each Settlement Date, Collections held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to clause (b)(i) or (f) plus the amount of Collections then held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if Arch Sales or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified Arch Sales (or such Affiliate) that such right is revoked, Arch Sales (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the aggregate of each Purchasers’ Share of the Servicing Fee. On or prior to the last day of each Settlement Period, each Purchaser Agent will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) The Servicer shall distribute the amounts described (and at the times set forth) in clause (c) above as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to each Purchaser Agent ratably according to the Discount accrued during such Yield Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Capital maintained by such Purchasers and all accrued Fees; it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within such Purchaser Agent’s Purchaser Group ratably according to Discount and Fees, respectively, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first, if Arch Sales or an Affiliate thereof is not the Servicer, to the Servicer in payment in full of the Purchasers’ Share of all accrued Servicing Fees, second, to each Purchaser Agent ratably (based on the aggregate accrued and unpaid Discount and Fees payable to all Purchasers at such time) (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each Portion of Capital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group and all accrued Fees, third, to each Purchaser Agent ratably according to the aggregate of the Capital of each Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group) in payment in full of each Purchaser’s Capital; it being understood that each Purchaser Agent shall distribute the amounts described in the first, second and third clauses of this Section 1.4(d)(ii) to the Purchasers within such Purchaser Agent’s Purchaser Group ratably according to Discount, Fees and Capital, respectively, fourth, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants (x) the amount necessary to cash collateralize the LC Participation Amount until the amount of cash collateral held in such LC Collateral Account (other than amount representing LC Fee Expectation) equals 100% of the LC Participation Amount (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%) (determined as if such Collections had been applied to reduce the aggregate outstanding amount of the LC Participation Amount) and (y) if such day is a Termination Day of the type described in clause (b) of the definition thereof or a Termination Event is continuing, an amount equal to the LC Fee Expectation at such time (or such portion thereof not currently on deposit in the LC Collateral Account), fifth, if the Aggregate Capital and accrued Aggregate Discount with respect to each Portion of Capital for all Purchaser Groups have been reduced to zero, and the aggregate of the Purchasers’ Share of all accrued Servicing Fees payable to the Servicer (if other than Arch Sales or an Affiliate thereof) have been paid in full, to each Purchaser Agent ratably, based on the amounts payable to each Purchaser in such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group), the Administrator and any other Secured Party in payment in full of any other amounts owed thereto by the Seller or the Servicer hereunder, and sixth, to the Servicer (if the Servicer is Arch Sales or an Affiliate thereof) in payment in full of the aggregate of the Purchasers’ Share of all accrued Servicing Fees. After the Aggregate Capital, Aggregate Discount, fees payable pursuant to the Fee Letters and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to each Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, and (on and after a Termination Day) after an amount equal to 100% of the LC Participation Amount and the LC Fee Expectation has been deposited in the LC Collateral Account, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller, any Affiliate of the Seller, any Originator, the Transferor, the Servicer or any Affiliate of the Servicer, or any setoff, netting of obligations or dispute between the Seller, any Affiliate of the Seller, any Originator, the Transferor, the Servicer or any Affiliate of the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and shall immediately pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of the Secured Parties pursuant to Section 1.4;
(ii) if on any day any of the representations or warranties in Sections l(j) or 3(a) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full and shall immediately pay any and all such amounts in respect thereof to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Secured Parties and for application pursuant to Section 1.4;
(iii) except as provided in clause (i) or (ii), or as otherwise required by Applicable Law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser Agent or any Purchaser shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Seller and, accordingly, such Person shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital), the Seller may do so as follows:
(i) the Seller shall give the Administrator, each Purchaser Agent and the Servicer written notice in substantially the form of Annex C (each, a “Paydown Notice”) (A) at least two Business Days prior to the date of such reduction for any reduction of the Aggregate Capital less than or equal to $20,000,000 and (B) at least five Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $20,000,000, in each case such Paydown Notice shall include, among other things, the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) (A) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of reduction or (B) the Seller shall remit to each Purchaser Agent’s account (for the benefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group), in immediately available funds, an amount equal to the desired amount of such reduction together with accrued and unpaid Aggregate Discount, and Aggregate Discount to accrue through the next Settlement Date, with respect to such Aggregate Capital, ratably (based on such Purchaser Agent’s Purchasers’ portion of the Aggregate Capital reduced thereby and portion of the related Aggregate Discount); and
(iii
Appears in 1 contract