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 Issuer, out of the Issuer’s Share of such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of 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, on behalf of the Issuer, the remainder of the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%, (iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer the entire remainder of the Issuer’s Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and (iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day. (c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof. (d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows: (i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, and (ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. (e) For the purposes of this Section 1.4: (i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment; (ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full; (iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and (iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof. (f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows: (i) the 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 in trust for the 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 payment, and the 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 $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 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 Issuerbenefit of each Purchaser Group, out of the Issuer’s Share of such Collections, first, (x) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, second, (y) an amount equal to the fees set forth in the each Purchaser Group Fee Letter accrued and unpaid through such day, and third, (z) to the extent funds are available therefor, an amount equal to the Issuer’s 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 the Issuereach Purchaser Group, the remainder of the Issuer’s Share of such Collections. Such remainder shall 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 theretothereto (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 reinvestReinvest, but shall set aside and hold in trust for the Issuer 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 (iiifor 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 such day is a the Facility Termination Day, set aside, segregate Date has been extended pursuant to Section 1.11 and hold in trust any Purchaser (and shall, at the request of or its Purchaser Agent) has provided notice (an “Exiting Notice”) to the Administrator, segregate in a separate account approved by the AdministratorSeller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) for the Issuer the entire remainder of the Issuer’s Share of the Collections; provided, that if amounts are set aside Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust on any Termination Day for the benefit 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 Purchaser and applied in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustmentbelow;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
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 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 Issuerbenefit of each Purchaser Group, out of the Issuer’s Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital Investment and not previously set aside, second, an amount equal to the fees set forth in the each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issueraggregate of each 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 the Issuereach Purchaser Group, the remainder of the Issuer’s Share of such Collections. Such remainder shall shall, to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s Investment, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer 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%,; provided, further, that if the Facility Termination Date has been extended pursuant to Section 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 1.10, to extend its (or its 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;
(iii) if such day is a Termination DayDay (or any day following the provision of an Exiting Notice), set aside, segregate 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 Administrator) for the Issuer benefit of each Purchaser Group the entire remainder of the IssuerCollections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s Share 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 Collectionsprovision 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 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, 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 dayday 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 shall, in accordance with the Administration Account (or such other account designated by the Administratorpriorities set forth in Section 1.4(d), deposit on each Settlement Date (or solely with respect into the account from time to Collections held for time specified by the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment)Administrator, Collections held for the Issuer benefit of the Purchasers pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(iiSections 1.4(b) and (iii) of Section 1.41.4(f); provided, that if UGI WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI WESCO (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(iSection 1.4(b)(i) that represents the Issueraggregate of each Purchaser Group’s Ratable Share of the Servicing Fee in payment in full Fee. Within three Business Days of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement PeriodYield Period with respect to any Portion of Investment, the Administrator applicable Purchaser Agent will notify the Servicer and the Administrator by facsimile e-mail of the amount of the Discount accrued with respect to each such Portion of Capital Investment during such Settlement Period or portion thereofthe related Yield Period.
(d) Upon receipt of funds deposited into The Servicer shall distribute the Administration Account pursuant to clause amounts described (cand at the times set forth) in 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 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 CapitalInvestment 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 Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the Issueraggregate 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 first, if WESCO or an Affiliate thereof is not the Servicer, to the Issuer 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 CapitalInvestment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, second third, to the Issuer 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 Capital 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, third and fourth clauses of this Section 1.4(d)(ii) to the Servicer Purchasers within its Purchaser Group ratably according to Investment or, in payment in full the case of all accrued the third clause of this Section 1.4(d)(ii), fees (not including the Servicing FeesFee), and fourthfifth, if the Capital Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Capital 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 IssuerAdministrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, the Administrator and any other each Indemnified Party or and each Affected Person 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 CapitalAggregate Investment, Aggregate Discount, fees payable pursuant to the 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 the Issuereach 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, 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 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%, (y) occurs after the occurrence of the Facility Termination Date or (z) occurs at any time when the Purchased Interest exceeds 100% or any Termination Event has occurred and is continuing, the Seller shall pay an amount equal to such reduction or adjustment to a Lock-Box Account (other than an Exception Account) (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers for application pursuant to Section 1.6(a) within one Business Day of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (nm) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day date, a Collection of such Pool Receivable in full, and if such breach (x) causes the Purchased Interest to exceed 100%, (y) occurs after the occurrence of the Facility Termination Date or (z) occurs at any time when the Purchased Interest exceeds 100% or any Termination Event has occurred and is continuing, the Seller shall pay the amount of such deemed Collection to a Lock-Box Account (other than an Exception Account) (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers for application pursuant to Section 1.6(a) within one Business Day of such breach; provided that, upon payment in full by the Seller of any Pool Receivable in accordance with this Section 1.4(d)(ii), the Administrator’s and each other Purchaser’s rights in such Receivable shall automatically be conveyed to the Seller, without representation or warranty, but free and clear of all liens, security interests, charges and encumbrances created by or through the Administrator or any Purchaser;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law 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 Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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, time the Seller shall wish to cause the reduction of the Capital Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased InterestAggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice in the form of Annex C (A) at least one Business Day prior to the date of such reduction thereof for any reduction of Capital less than or equal to $20,000,000; Aggregate Investment (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 to 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 in trust for the Issuerbenefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) 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 payment, and the Capital 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 that:
(A) the amount of any such reduction shall be not less than $1,000,000 and 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 an integral multiple of $100,000.in the amount required to reduce the Aggregate Investment to zero); and
(B) with resp
Appears in 3 contracts
Sources: Receivables Purchase Agreement (Wesco International Inc), Receivables Purchase Agreement (Wesco International Inc), 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 (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 Issuerbenefit of each Purchaser Group, out of the Issuer’s Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter Fees accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s 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 the Issuereach Purchaser Group, the remainder of the Issuer’s Share of such Collections. Such remainder shall 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 theretoRights; 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 Issuer 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) on the next Settlement Date in accordance with Section 1.4(c); provided, further, that in the case of any Purchaser that has provided notice (an “Exiting Notice”) to its Purchaser Agent of its refusal, pursuant to Section 1.22, to extend its 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,
(iii) if such day is a Termination DayDay (or a day on which the Commitment of an Exiting Purchaser terminates), set aside, segregate 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 Issuer benefit of each Purchaser Group the entire remainder of such Collections (or, in the Issuercase of an Exiting Purchaser, an amount equal to such Purchaser’s Share ratable share of the Collectionssuch 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 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 conditionsconditions or revocation of Exiting Notice, as the case may be, and
(iv) release to the Seller (subject to Section 1.4(f)) , release to the Seller 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 or reinvested pursuant to clause clauses (i), the proviso to clause (ii) and clause (iii) above plus (zy) the Seller’s Share of the Servicing Fee accrued and unpaid through such dayday 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 shall, in accordance with the priorities set forth in Section 1.4(d) below, deposit into the Administration Account each applicable Purchaser Agent’s account (or such other account designated by the Administratorsuch applicable Purchaser or its Purchaser Agent), 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 paymentany Portion of Capital), Collections held for the Issuer each Purchaser pursuant to clause Sections 1.4(b)(i), (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(iiii) and (iii) of and Section 1.41.4(f); provided, that if UGI Swift or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI Swift (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI Swift (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(iSection 1.4(b)(i) that represents the Issuer’s aggregate of each Purchasers’ Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set asideFee. On or prior to the last day of each Settlement Calculation Period, the Administrator each Purchaser Agent will notify the Servicer by facsimile email communications or other electronic delivery of the amount of Discount accrued with respect to each its Portion of Capital during such Settlement Calculation Period or portion thereof.
(d) Upon receipt of funds deposited into The Servicer shall distribute the Administration Account pursuant to clause amounts described (cand at the times set forth) in 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 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 Issuer 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 (other than Servicing Fees) Fees with respect to each Portion of CapitalCapital 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 clause (b)(iSection 1.4(b)(i) and has not retained such amounts pursuant to clause (cSection 1.4(c), to the Servicer Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the Issuer’s aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day 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 Issuer 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 CapitalCapital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, second third to each Purchaser Agent ratably (based on the Issuer 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 Capital (orx) 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), thirdfourth, to the Servicer 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 payment in full such LC Collateral Account equals 100% of all accrued Servicing Feesthe LC Participation Amount, and fourthfifth, 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 each Purchaser Group ratably (based on the Issueramounts 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 hereunderor 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 CapitalCapital (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 payable pursuant to the Fee Letter Fees and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuereach Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, 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 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 adjustmentadjustment 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 Section 1(gSections 1(j) or (n3(a) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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 fullrespect 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 clause (iSections 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 its payment for application to specific Receivables; andspecified an applicable Receivable;
(iv) if and to the extent the Administrator Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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, time the Seller shall wish wishes to cause the reduction of the Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex C E (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; (Beach, a “Paydown Notice”) at least two (2) Business Days prior to the date of such reduction for any reduction of Capital greater than $20,000,000 the Aggregate Capital, and less than or equal to $50,000,000; and (C) at least three Business Days prior to the date of each such reduction for any reduction of Capital greater than $50,000,000Paydown Notice shall include, in each case such notice shall have been received by 3:00 p.m. New York City time on such date and 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 Issuerbenefit of each Purchaser ratably according to its Capital, for payment to each such Purchaser (or its related Purchaser Agent for the Administrator benefit of such Purchaser) on the date specified in the Paydown Notice (1) solely with respect or such other date as agreed to any reduction described in subsections (f)(i)(B) or (f)(i)(C) by the next Weekly Settlement Date, or (2Administrator) with respect to any reduction described in subsection (f)(i)(A), Portions of Capital maintained by such other date with at least one (1) Business Day prior written notice to Purchaser immediately following the Administrator of such paymentrelated 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 Administrator benefit of such Purchaser) only when in fact finally so paid; provided, that that:
(A) the amount of any such reduction shall be not less than $1,000,000 and shall be an integral multiple of $100,000.any
Appears in 3 contracts
Sources: Receivables Purchase Agreement (Knight-Swift Transportation Holdings Inc.), Receivables Purchase Agreement (SWIFT TRANSPORTATION Co), Receivables Purchase Agreement (SWIFT TRANSPORTATION 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 Issuer, out of the Issuer’s Share of such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of 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, on behalf of the Issuer, the remainder of the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request benefit of the AdministratorSecured Parties (or, if so requested by the Administrative 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 or in any HSBC Exception Account; provided, however, that so long as each of the conditions precedent set forth in Section 5.03 are satisfied on such date, the Servicer may release to the Seller from such Collections the amount (if any) necessary to pay (i) the purchase price for Receivables purchased by the Seller on such date in accordance with the terms of the applicable Purchase and Sale Agreement or (ii) amounts owing by the Seller to any Originator under any Intercompany Loan Agreement (each such release, a portion “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Collection Accounts pursuant to Section 8.03, 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 of Servicing Fees payable for any prior Yield Period to the extent such amount has not been distributed to the Servicer);
(ii) second, to the Administrative Agent for distribution to each Purchaser (ratably, based on the amount then due and owing each Purchaser and any related Purchaser Party), all accrued and unpaid Yield, Fees and Breakage Fees due to such Purchaser and related Purchaser Party for the immediately preceding Yield Period (including any additional amounts or indemnified amounts payable under Sections 4.03 and 12.01 in respect of such Collections thatpayments), together with the other Collections set aside pursuant to this paragraphplus, shall equal if applicable, the amount necessary 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 reduce the Purchased Interest extent such amount has not been distributed to 100%,such Purchaser or Purchaser Party;
(iii) if such day is a Termination Daythird, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer the entire remainder of the Issuer’s Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such paymentx), Collections held for the Issuer pursuant to clause (b)(iy) or (fz) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuerbelow, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as followsapplicable:
(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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
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 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:
(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 Issuer, out of the Issuer’s Share of such Collections, firstRetail Merchants, an amount equal to (i) the Discount accrued through total amount of charges identified in all NMG Charge Transaction Data not yet paid in accordance with Section 8.4(a) less (ii) the sum of (A) the total amount of any credits included in such day NMG Charge Transaction Data, plus (B) the 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 NMG Goods and Services without giving effect to such discount(s). NMG shall reimburse Bank for the 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 Portion Fiscal Month, NMG Servicer shall deliver or cause to be delivered to Bank a report for such preceding Fiscal Month of Capital all Special Discounts reflected in the NMG Charge Transaction Data and not previously set asidepaid for by Bank in such preceding Fiscal Month (and, secondin 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 (i) 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 fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of 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, on behalf of the Issuer, the remainder of the Issuer’s Share product of such Collections. Such remainder net amount of Special Discounts and the Program Fee Percentage shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer paid by NMG to Bank within three (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator3) a portion Business Days of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,
(iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer the entire remainder of the Issuer’s Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereofreport.
(d) Upon receipt of funds deposited into NMG shall be responsible for allocating such remittances among the Administration Account pursuant Retail Merchants as appropriate and Bank shall have no responsibility or liability in connection therewith (it being agreed that Bank has no obligation to clause (c)accept NMG Charge Transaction Data directly from, 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%or make remittances to, first to the Issuer in payment in full of all accrued Discount and fees (any person 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 (cNMG), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
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 Each Servicer 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 for the request benefit of the AdministratorSecured Parties (or, if so requested by the Administrative Agent, segregate in a separate account approved by the Administrator) Administrative Agent), for application in accordance with the Issuer, out priority of the Issuer’s Share of such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees payments set forth below, all Collections on Pool Receivables that are received by such Servicer or any SPV Entity or received in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of 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, on behalf of the Issuer, the remainder of the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect theretoany 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 Purchased Interest would exceed 100%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, then on any day and if so requested by the Servicer 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, for the avoidance of doubt, any Collections that are not so Released shall not reinvest, but shall set aside and hold be held in trust by the Servicers for the Issuer (and shall, at the request benefit of the Administrator, segregate Secured Parties or segregated and held in a separate account approved by the AdministratorAdministrative Agent unless and until such Collections are Released or distributed on a Settlement Date, in each case, in accordance with the terms hereof. On each Settlement Date, the Servicers (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) a portion 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, that the payment of such fees, costs and expenses from Collections that, together on deposit in such Lock-Box Accounts on days other than Settlement Dates in accordance with the other Collections set aside pursuant terms of the applicable Lock-Box Agreements shall not constitute a breach or default under this Agreement for any purpose;
(ii) second, to this paragrapheach 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%,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 day is a Termination DayYield, 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 asideforth in clause (x) or (y) below, segregate and hold in trust as applicable:
(and shall, at x) prior to the request occurrence of the AdministratorMaturity Date, segregate in a separate account approved by to the AdministratorPurchasers (ratably, based on the aggregate outstanding Capital of each Purchaser at such time) for the Issuer the entire remainder payment of a portion of the Issuer’s Share 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 Collections; provided, that if amounts are set aside and held in trust on any Termination Day last day of the type preceding Fiscal Month assuming that the amount described in clause (aa)(ii) of the definition of “Termination DayCapital Coverage Amount” 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 (iiis zero) on the day of such subsequent satisfaction or waiver of conditions, andto exist; or
(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) on and after 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 occurrence of the Servicing Fee accrued and unpaid through Maturity Date, to each Purchaser (ratably, based on the aggregate outstanding Capital of each Purchaser at such day.
(ctime) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of aggregate outstanding Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of Purchaser at such reduction or adjustmenttime;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
Appears in 2 contracts
Sources: Receivables Purchase Agreement (NCR Corp), Receivables Purchase Agreement (NCR Corp)
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 Collection Accounts for the benefit of the AdministratorPurchaser (and, segregate in a separate account approved by the Administratorcase 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) for the Issuerbelow), out of the Issuer’s Share of such Collections, first, first an amount equal to the all Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in sum of the Fee Letter Used Fees, Unused Fees and Breakage Costs accrued and unpaid through such dayday and not previously set aside, and third, to the extent funds are available therefor, an amount equal to the Issuer’s 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 SellerSellers, on behalf of the IssuerPurchaser, the remainder of the Issuer’s Share of such Collections. Such remainder shall shall, (x) to the extent representing a return of Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections Purchased Assets and other proceeds with respect theretothereto and (y) to the extent not representing a return of Capital, be paid (on behalf of the 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 Issuer (and shall, at the request benefit of the Administrator, segregate Purchaser in a separate account approved by accordance with clause (iii) below 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%,, then all such remaining Collections shall be so set aside for the benefit of the Purchaser), rather than remitting all of such remaining Collections to the Sellers for Reinvestment or for payment of the Deferred Purchase Price;
(iii) if such day is a Termination Day, set aside, segregate aside and hold maintain in trust (and shall, at the request Collection Account for the benefit of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer Purchaser Parties the entire remainder of the Issuer’s Share of the such Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f1.6(f), pay to the Sellers (on behalf of the Purchaser) for its the Sellers’ own account 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) or the proviso to clause (iii) 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) the Seller’s Share all reasonable and appropriate out-of-pocket costs and expenses of the Servicing Fee accrued Servicers for servicing, collecting and unpaid through such dayadministering the Pool Receivables.
(c) The On each Settlement Date, each Applicable Servicer shall (i) deposit into the Administration applicable Purchaser’s Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Agent) all Collections held on deposit in each Collection Account for the Issuer 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 (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) third of Section 1.41.6(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 if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right no amounts shall be payable to retain the portion of the Collections set aside pursuant to Garland under clause (b)(iii) 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 thereofabove.
(d) Upon receipt of funds deposited into any of the Administration Account Purchaser’s Accounts pursuant to clause (cSection 1.6(c), the Administrator 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 Day, such funds shall be distributed in the Purchased Interest does not exceed 100%, following order of priority: first to the Issuer Purchaser in payment in full of all unpaid Discount accrued during the most recently ended Discount and fees (other than Servicing Fees) with respect to each Portion of CapitalAccrual Period, 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), second to the Servicer (payable in arrears on each Settlement Date) Purchaser in payment in full of all unpaid Used Fees, Unused Fees and Breakage Costs accrued during the Issuer’s Share most recently ended Discount Accrual Period, third to the Purchaser in payment of outstanding Capital (and accrued Servicing Fees so Discount thereon) to the extent that funds have been set asideaside 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 or on a day when Day, such funds shall be distributed in the Purchased Interest exceeds 100%, following order of priority: first to the Issuer Purchaser in payment in full of all accrued Discount with respect to each Portion of Capitaland unpaid Discount, 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 Purchaser in payment in full of all accrued Servicing and unpaid Used Fees, Unused Fees and fourthBreakage Costs, if third to the Capital and accrued Discount with respect to each Portion Purchaser in payment in full of Capital have been reduced to zeroall outstanding Capital, and all accrued Servicing Fees payable fourth to the Servicer have been paid in full, to the IssuerPurchaser, the Administrator Agent and any other Indemnified Purchaser Party or Affected Person in payment in full of any other amounts owed thereto by the any Seller hereunderor 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 Capital, Discount, fees payable pursuant to occurrence of the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in fullFinal Payout Date, all additional Collections with respect to the Purchased Interest Assets shall be paid to the Seller Sellers for its their own accountaccounts in payment of the Deferred Purchase Price for the Purchased Assets.
(e) For the purposes of this Section 1.41.6:
(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 revision, cancellation, allowancediscount, rebate, discount credit, counterclaim, billing error or other adjustment made by the Seller any Seller, Originator or any Affiliate of the SellerServicer, or any setoff or dispute between the Seller any Seller, Originator or Servicer and any Affiliate of the Seller and an 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 Section 1(gparagraphs (e), (f) or (nk) of Exhibit III, or Section 2, 3 or 4 1 of Exhibit VI 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 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 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, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator Agent, the Purchaser or the Issuer 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 by the Administrator or the Issuer but rather to have been retained by the Seller of the relevant Pool Receivable and, accordingly, the Administrator Agent or the IssuerPurchaser, as the case may be, shall have a claim against the 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, the time a Seller shall wish to cause the reduction of the Aggregate Capital (but not to commence the liquidation, in whole or reduction to zero, of the entire Capital of the Purchased Interestin part), the such Seller may do so as follows:
(i) the such Seller shall give the Administrator and the Servicer 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 (Aeach, a “Paydown Notice”) at least one Business Day prior to setting forth 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 proposed amount of such proposed reduction and reduction, the proposed date on which such reduction will commencecommence (the “Paydown Date”) and the Approved Currency of the Capital to be reduced;
(ii) on the proposed date of the 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 trust a Collection Account for the Issuerbenefit of the Purchaser, for payment to the Administrator Purchaser’s Account on (1) solely with respect to any reduction described in subsections (f)(i)(B) or (f)(i)(C) the next Weekly Settlement DateDate (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 (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 Servicers to the Administrator of such paymentPurchaser, 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 Administrator Purchaser’s Account only when in fact finally so paid; providedprovided that, that the amount of any such reduction shall be not less than (A) one million U.S. Dollars ($1,000,000 and shall be 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 Issuerbenefit of the Secured Parties, out of the Issuer’s Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the each Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s aggregate 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 the IssuerPurchasers, the remainder of the Issuer’s Share of such Collections. Such remainder shall shall, to the extent representing a return on the Aggregate Capital, be automatically reinvested reinvested, ratably, according to each Purchaser’s Capital, in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not remit such remainder to the Seller or reinvest, but shall set aside and hold in trust for the Issuer Administrator (for the benefit of the 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) or (y) be deposited in the LC Collateral Account, in each case, as applicable, on the next Settlement Date in accordance with Section 1.4(c); provided, further, that (x) in the case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (a “Declining Notice”) to its Purchaser Agent and the 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 this clause (ii) or (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to its Purchaser Agent and the Administrator of its refusal, following any request by the Seller to extend the then Facility Termination Date, to extend its Commitment hereunder (an “Exiting Purchaser”), then in either case set forth in clause (x) or (y) above, such Purchaser’s ratable share (determined according to outstanding Capital) of Collections shall not be reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;
(iii) if such day is a Termination DayDay (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) for the Issuer ), the entire remainder of such Collections (or in the Issuercase of a Declining Conduit Purchaser or an Exiting Purchaser, an amount equal to such Purchaser’s Share 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 Collectionsprovision 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 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 conditionsconditions 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: (xw) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (yx) the amounts that are required to be set aside pursuant to clause (i), the proviso provisos to clause (ii) and clause (iii) plus (zy) the Seller’s Share of the Servicing Fee accrued and unpaid through such dayday 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 shall, in accordance with the priorities set forth in Section 1.4(d), deposit into the Administration Account (or such other account designated by the Administrator)each Purchaser Agent’s account, 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)Date, Collections held for such Purchaser Agent (for the Issuer 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 Issuer benefit of its related Purchasers) pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI Arch Sales or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI Arch Sales (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI Arch Sales (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s aggregate of each Purchasers’ Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set asideFee. On or prior to the last day of each Settlement Period, the Administrator 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) Upon receipt of funds deposited into The Servicer shall distribute the Administration Account pursuant to amounts described (and at the times set forth) in clause (c), the Administrator shall cause such funds to be distributed ) 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 Issuer 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 and fees (other than Servicing Fees) with respect to each Portion of CapitalCapital 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 Issuer’s 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 first, if Arch Sales or an Affiliate thereof is not the Servicer, to the Issuer 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 CapitalCapital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group and all accrued Fees, second third, to each Purchaser Agent ratably according to the Issuer 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, thirdsecond 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 Servicer 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 payment 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 full clause (b) of all accrued Servicing Feesthe definition thereof or a Termination Event is continuing, and fourthan 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 Issueramounts 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 Secured 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 (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 Letter Letters and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuereach 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 Seller, any Affiliate of the Seller, or any setoff or dispute between Originator, the Seller Transferor, the Servicer or any Affiliate of the Seller 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 adjustmentadjustment 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 Section 1(gSections l(j) or (n3(a) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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 fullfull 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 Applicable Law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such 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 Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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, time the Seller shall wish to cause the reduction of the Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased InterestAggregate Capital), the Seller may do so as follows:
(i) the Seller shall give the Administrator Administrator, each Purchaser Agent and the Servicer written notice in substantially the form of Annex C (each, a “Paydown Notice”) (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 the Aggregate Capital greater than $20,000,000 and less than or equal to $50,000,000; 20,000,000 and (CB) at least three five Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $50,000,00020,000,000, in each case such notice Paydown Notice shall have been received by 3:00 p.m. New York City time on such date and shall include 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; and
reduction or (iiiB) the Servicer Seller shall hold such Collections in trust remit to each Purchaser Agent’s account (for the Issuerbenefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group), for payment in immediately available funds, an amount equal 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 desired amount of such paymentreduction together with accrued and unpaid Aggregate Discount, and Aggregate Discount to accrue through the 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 $1,000,000 and shall be an integral multiple of $100,000.next
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Core Natural Resources, Inc.), Receivables Purchase Agreement (Arch Resources, Inc.)
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 Issuer, out of the Issuer’s Share of such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of 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, on behalf of the Issuer, the remainder of the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request benefit of the AdministratorSecured Parties (or, if so requested by the Administrative 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, to the Administrative Agent for distribution to each Purchaser and other Purchaser Party (ratably, based on the amount then due and owing), all accrued and unpaid Yield and Fees due to such Purchaser and other Purchaser Party for the immediately preceding Yield Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such 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) if such day is a Termination Daythird, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer the entire remainder of the Issuer’s Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such paymentx), Collections held for the Issuer pursuant to clause (b)(iy) or (fz) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuerbelow, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as followsapplicable:
(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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
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 Issuerbenefit of each Purchaser Group, out of the Issuer’s Share of such Collections, first, 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, second, (x) an amount equal to the fees set forth in owing to the Fee Letter Purchasers and the Administrator accrued and unpaid through such day, and third, (y) 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 Issuer’s Share of Purchaser Agents, the Servicing Fee accrued through such day Administrator, and not previously set aside,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, on behalf of the Issuer, the remainder of the Issuer’s Share Collections not set aside pursuant to clause (b)(i) of such Collections. Such remainder shall this Section 1.4 shall, to the extent representing a return of Capital, be automatically reinvested Reinvested according to each Purchaser’s Capital in Pool Receivables, and in the associated Related Security, Collections and other proceeds with respect 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 reinvestso Reinvest, but shall set aside and hold in trust for the Issuer 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 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 Issuer benefit of each Purchaser Group, the entire remainder of the Issuer’s Share Collections not set aside pursuant to clause (b)(i) of the Collectionsthis Section 1.4; provided, that if amounts are so 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, then such previously set-aside amounts shall shall, to the extent representing a return on Capital, be reinvested Reinvested in accordance with clause (ii) above on the next day of such subsequent satisfaction or waiver of conditions, 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: (xw) amounts required to be reinvested Reinvested in accordance with clause (ii) or the proviso to clause (iii) above plus (yx) 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 (zy) the Seller’s Share of the Servicing Fee Fees accrued and unpaid through such day.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day fifth (5th) Business Day of each Settlement Periodcalendar month, the Administrator each Purchaser Agent will notify the Servicer by facsimile electronic mail of the amount of Discount accrued with respect to each Portion 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 Settlement Period Purchaser Agent (for the benefit of its related Purchasers) pursuant to Section 1.4(b)(i) or portion thereof1.4(f) plus the amount of Collections then held for such Purchaser Agent (for the benefit of its related Purchasers) pursuant to Sections 1.4(b)(ii) and 1.4(b)(iii); provided, however, that if the Information Package delivered by the Servicer indicates a Purchased Interest in excess of 100%, then the amount of Collections not Reinvested pursuant to clause (b)(ii) shall be deposited into the account for each Purchaser maintained by the applicable Purchaser Agent as may be designated from time to time by such Purchaser Agent to the Seller and the Servicer on the date such Information Package is received and on each day thereafter to the extent the Purchased Interest exceeds 100%.
(d) Upon receipt of funds deposited into The Servicer shall distribute the Administration Account pursuant to clause amounts described (c), and at the Administrator shall cause such funds to be distributed 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, first to the Issuer 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 of, all accrued Discount and fees (other than Servicing Fees) with respect to each Portion 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 secondthe Administrator, all accrued fees (including program fees) owing to the Purchasers (it being understood that each Purchaser Agent shall distribute such amounts to the Purchasers within its Purchaser Group ratably in accordance with each such Purchaser’s Capital) and to the Administrator; fourth, if the Servicer has set aside amounts in respect of a reduction of the Servicing Fee Aggregate Capital pursuant to clause (b)(if) and has not retained below, to each Purchaser Agent (for the benefit of the Purchasers within such amounts pursuant to clause (cPurchaser Agent’s Purchaser Group), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuerrelated 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 Share of accrued Servicing Fees so set asideCapital; and fifth, andto the Seller for its own account.
(ii) if such distribution occurs on a Termination Day or on a any day when on which the Purchased Interest exceeds 100%: first, first to the Issuer 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 of, all accrued Discount with respect to each Portion portion of Capital, second Capital maintained by such Purchasers (it being understood that each Purchaser Agent shall distribute such amounts to the Issuer 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, or if such day is not a Termination DayDay but is a day on which the Purchased Interest exceeds 100%, the amount necessary to reduce the Purchased Interest to 100%), third, ) it being understood that each Purchaser Agent shall distribute such amounts to the Servicer Purchasers within its Purchaser Group ratably in payment in full of all accrued Servicing Fees, and fourthaccordance with each Purchaser’s Capital; fifth, if the Aggregate Capital and accrued Aggregate Discount and fees with respect to each Portion of Capital thereto have been reduced to zerozero (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 IssuerPurchasers, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts Aggregate Unpaids owed thereto by the Seller hereunder. After the Capitalhereunder (other than contingent indemnification obligations); and sixth, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted canceled as a result of any defective(x) without duplication, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount 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 Seller, the Servicer or any Affiliate Originator, including in connection with the cancellation and reissuance of the Sellerany Pool Receivable, or (y) any setoff set-off or dispute between the Seller or any Affiliate of the Seller Originator and an ObligorObligor (any such reduction or cancellation, a “Dilution”), in any such case, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction, adjustment, cancellation or dispute (which, in the case of a cancellation and reissuance of any Pool Receivable, shall be an amount equal to the full Outstanding Balance of the cancelled Pool Receivable) and shall, subject to Section 1.4(e)(v), (x) if such day is not a Termination Day, hold any and all such amounts in trust for the benefit of each Purchaser Group and, on the following Settlement Date, apply such amounts in accordance with this Section 1.4 or (y) if such day is a Termination Day, within two (2) Business Days of such reduction or adjustment, pay from its own funds any and all such amounts in respect thereof to a Collection Account or the Concentration Account for the benefit of each Purchaser Group and for application pursuant to this Section 1.4;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI III is not true with respect to any Pool Receivable a Collection of the full Outstanding Balance of such Pool Receivable, the Seller shall be 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 on such day a Collection of such Pool Receivable in fullpursuant to Sections 1.4(e)(i) or (ii) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant ContractLaw, 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; and;
(iv) if and to the extent the Administrator or the Issuer 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 the Issuer such Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuersuch 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) If at At any time, the Seller shall wish may elect to cause the a reduction of the Capital in accordance with this clause (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interestf), the . The Seller may do so as follows:
(i) the Seller shall give deliver to the Administrator Administrator, each Purchaser Agent and the Servicer written notice in substantially the form of Annex C (Athe “Paydown Notice”) at least one two Business Day Days’ 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 $50,000,000Aggregate Capital, in each case such which 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 Reinvested until the amount thereof not so reinvested Reinvested shall equal the desired amount of reductionthe reduction of Aggregate Capital; and
(iii) the Servicer shall hold (or cause the Seller to set aside and hold) such Collections in trust for the Issuereach Purchaser, for payment to each Purchaser Agent for the Administrator benefit of such Purchaser 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 payment, and the Aggregate Capital shall be deemed reduced in the amount to be paid to the Administrator 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 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 Issuerbenefit of each Purchaser Group, out of the Issuer’s Purchasers’ Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital Investment and not previously set aside, second, an amount equal to the fees set forth in the each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issueraggregate 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 the Issuereach Purchaser Group, the remainder of the Issuer’s Purchasers’ Share of such Collections. Such remainder shall shall, to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s Investment, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer 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, set aside, segregate 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 Administrator) for the Issuer benefit of each Purchaser Group the entire remainder of the Issuer’s 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 AdministratorAdministrator and a Simple Majority of the Purchasers, such previously set-aside amounts shall 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 dayday 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 shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into the Administration Account each applicable Purchaser’s account (or such other account designated by the Administratorsuch applicable Purchaser or its Purchaser Agent), 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)Date, Collections held for the Issuer 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 the Issuer such Purchaser pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI Worthington or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI Worthington (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) Worthington may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issueraggregate of each Purchaser Group’s Ratable Share of the Purchasers’ Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set asideFee. On or before the last day of each Settlement PeriodYield Period with respect to any Portion of Investment, the Administrator applicable Purchaser Agent will notify the Servicer by facsimile of the amount of the Discount accrued with respect to each such Portion of Capital Investment during such Settlement the related Yield Period or portion thereofthen ending.
(d) Upon receipt of funds deposited into The Servicer shall distribute the Administration Account pursuant to clause amounts described (cand at the times set forth) in 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 each Purchaser Agent ratably according to the Issuer 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 CapitalInvestment 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 Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the Issueraggregate 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 Issuer 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 CapitalInvestment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, second third to each Purchaser Agent ratably according to the Issuer 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 Capital each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, ; 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 Servicer in payment in full of all accrued Servicing FeesPurchasers within its Purchaser Group ratably according to Discount and Investment, and respectively, fourth, if the Capital Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Capital 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 full, to each Purchaser Group ratably (for the Issuerbenefit 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 hereunderor Servicer hereunder and, fifth, to the Servicer’s own account (if the 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 CapitalAggregate Investment, Aggregate Discount, fees payable pursuant to the 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 the Issuereach 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 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, or Section 2, 3 or 4 of Exhibit VI 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 Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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, time the Seller shall wish to cause the reduction of the Capital Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased InterestAggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex C (A) at least one two Business Day Days’ prior to the date of such reduction written notice thereof for any reduction of Capital Aggregate Investment less than or equal to $20,000,000; 10,000,000 and (B) at least two ten Business Days Days’ prior to the date of such reduction written notice thereof for any reduction of Capital Aggregate Investment greater than $20,000,000 and less than or equal to $50,000,000; and 10,000,000 (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 in trust for the Issuerbenefit of each Purchaser ratably according to its Investment, for payment to each such Purchaser (or its related Purchaser Agent for the Administrator benefit of such Purchaser) on the (1i) solely next Settlement Date with respect to any reduction described in subsections (f)(i)(B) Portions of Investment maintained by such Purchaser immediately following the related current Yield Period or (f)(i)(Cii) the next Weekly Settlement Date, or (2) with respect to any reduction described in subsection (f)(i)(A), such other date approved by the Administrator with at least one (1) five Business Day Days prior written notice to the Administrator of such payment, and the Capital 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 Administrator benefit of such Purchaser) only when in fact finally so paid; provided, that 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 $100,000500,000, 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 2 contracts
Sources: Receivables Purchase Agreement (Worthington Industries Inc), Receivables Purchase Agreement (Worthington Industries Inc)
Settlement Procedures. (a) The collection of the Pool Receivables Servicer 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 for the request benefit of the AdministratorSecured Parties (or, if so requested by the Administrative Agent, segregate in a separate account approved by the Administrator) 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 Issuer, out priority of the Issuer’s Share of such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Borrower or received in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of 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, on behalf of the Issuer, the remainder of the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect theretoany 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 reinvestmay release to the Borrower from such Collections the amount (if any) necessary to pay (i) the purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement or (ii) amounts owing by the Borrower to the Originators under the Subordinated Notes (each such release, but shall set aside and hold 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 trust the following order of priority:
(i) first, to the Servicer for the Issuer (and shall, at the request payment of the Administratoraccrued Servicing Fees payable for the immediately preceding Interest Period (plus, segregate if applicable, the amount of Servicing Fees payable for any prior Interest Period to the extent such amount has not been distributed to the Servicer);
(ii) second, to the Lender and each other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due to the Lender and each such Credit Party for the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 4.03 and 11.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including any additional amounts or indemnified amounts payable under Sections 4.03 and 11.01 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to the Lender or each such Credit Party;
(iii) third, as set forth in clause (A), (B) or (C) below, as applicable:
(A) prior to the occurrence of the Termination Date, to the extent that a separate account approved by Borrowing Base Deficit exists on such date or the Administrator) Aggregate Capital on such date exceeds the Facility Limit, to the Lender for the payment of a portion of the 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 Borrowing Base Deficit to 100%,
zero (iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer the entire remainder of the Issuer’s Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii$0) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest Aggregate Capital to 100%)an amount equal to or less than the Facility Limit, thirdas applicable;
(B) on and after the occurrence of the Termination Date, to the Servicer in Lender for the payment in full of all accrued Servicing Fees, and fourth, if the aggregate outstanding Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable the Lender at such time; or
(C) prior to the Servicer have been paid occurrence of the Termination Date, at the election of the Borrower from time to time and in fullaccordance with Section 2.02(c), to the Issuerpayment of all or any portion of the outstanding Capital of the Lender at such time;
(iv) fourth, to each Credit Party, the Administrator Affected Persons and any the Borrower Indemnified Parties (ratably, based on the amount due and owing at such time), for the payment of all other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto Borrower Obligations then due and owing by the Seller hereunder. After Borrower to each such Credit Party, 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 Affected Persons and the Servicer to the IssuerBorrower Indemnified Parties; and
(v) fifth, the Administrator or any other Indemnified Party or Affected Person hereunderbalance, have been paid in fullif any, all additional Collections with respect to the Purchased Interest shall be paid to the Seller Borrower for its own account, including, without limitation, the payment of any amounts pursuant to a Release.
(eb) All payments or distributions to be made by the Servicer, the Borrower and any other Person to the Lender (or their respective related Affected Persons and the Borrower Indemnified Parties) shall be paid or distributed to the Administrative Agent at its Administrative Agent’s Account. The Administrative Agent, upon its receipt in the applicable Administrative Agent’s Account of any such payments or distributions, shall distribute such amounts to the Lender, Affected Persons and the Borrower Indemnified Parties, as applicable; provided that if the Administrative Agent shall have received insufficient funds to pay all of the above amounts in full on any such date, the Administrative Agent shall pay such amounts to the Lender, Affected Persons and the Borrower Indemnified Parties in accordance with the priority of payments set forth above, and with respect to any such category above for which there are insufficient funds to pay all amounts owing on such date, ratably (based on the amounts in such categories owing to each such Person) among all such Persons entitled to payment thereof.
(c) If and to the extent the Administrative Agent, the Lender, any Affected Person or any Borrower Indemnified Party shall be required for any reason to pay over to any Person any amount owed and received on its behalf hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Borrower and, accordingly, the Administrative Agent, the Lender, such Affected Person or such Borrower Indemnified Party, as the case may be, shall have a claim against the Borrower for such amount.
(d) For the purposes of this Section 1.43.01:
(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, credit memo, discount or other adjustment made by the Seller Borrower, any Originator, the Servicer or any Affiliate of the SellerServicer, or any setoff setoff, counterclaim or dispute between the Seller Borrower or any Affiliate of the Seller Borrower, an Originator or any Affiliate of an Originator, or the Servicer or any Affiliate of the Servicer, and an Obligor, the Seller Borrower shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustmentadjustment and, if an Event of Default or Unmatured Event of Default exists or if the Purchase and Sale Termination Date has occurred and, in each case, if an Originator has made a related payment in cash to the Borrower pursuant to Section 3.2(c) of the Purchase and Sale Agreement, the Borrower shall immediately pay (or cause the applicable Originator to pay pursuant to Section 3.3 of the Purchase and Sale Agreement) any and all such amounts in respect thereof to a Collection Account (or as otherwise directed by the Administrative Agent at such time) for the benefit of the Credit Parties for application pursuant to Section 3.01(a); provided that if a Pool Receivable’s “Purchase Price” has been reduced by the full Outstanding Balance thereof pursuant to Section 3.3(a) of the Purchase and Sale Agreement and such reduction has been made in accordance with Section 3.3(c) of the Purchase and Sale Agreement, then the Borrower shall deliver to the applicable Originator any payments thereafter received by the Borrower on account of such Pool Receivable’s Outstanding Balance in accordance with the Borrower’s obligations under the proviso to Section 3.3(a) of the Purchase and Sale Agreement;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 6.01 is not true with respect to any Pool Receivable, the Seller Borrower shall be deemed to have received on such day a Collection of such Pool Receivable in fullfull and, if an Event of Default or Unmatured Event of Default exists or if the Purchase and Sale Termination Date shall have occurred and, in each case, if an Originator has made a related payment in cash to the Borrower pursuant to Section 3.2(c) of the Purchase and Sale Agreement, the Borrower shall immediately pay the amount of such deemed Collection to a Collection Account (or as otherwise directed by the Administrative Agent at such time) for the benefit of the Credit Parties for application pursuant to Section 3.01(a) (Collections deemed to have been received pursuant to Section 3.01(d) are hereinafter sometimes referred to as “Deemed Collections”);
(iii) except as provided in clause clauses (i) or (ii), ) above or as otherwise required by applicable law 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 Administrative Agent, the Lender, any Affected Person or the Issuer 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 the Administrator or the Issuer such Person but rather to have been retained by the Seller Borrower and, accordingly, the Administrator or the Issuer, as the case may be, such Person shall have a claim against the Seller 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.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
Appears in 2 contracts
Sources: Receivables Financing Agreement (Waystar Holding Corp.), Receivables Financing Agreement (Waystar Holding 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 Issuerbenefit of each Purchaser Group, out of the Issuer’s Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s 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 the Issuereach Purchaser Group, the remainder of the Issuer’s Share of such Collections. Such remainder shall 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; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers) on the next Weekly Settlement Date in accordance with Section 1.4(c); provided, further, that (x) in the case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to its Purchaser Agent of either its refusal, pursuant to Section 1.12, to extend its Commitment hereunder (an “Exiting Purchaser”) then in either case (x) or (y), above, such Collections shall not be reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii), below.
(iii) if such day is a Termination DayDay (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 Issuer benefit of each Purchaser Group the entire remainder of the IssuerCollections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser an amount equal to such Purchaser’s Share 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 Collectionsprovision 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 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 conditionsconditions 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 dayday 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 shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into the Administration Account each applicable Purchaser’s account (or such other account designated by the Administratorsuch applicable Purchaser or its Purchaser Agent), (x) on each Monthly Settlement Date (or solely in the case of Collections held for each Purchaser with respect to Collections held for the Issuer pursuant to clause (fsuch Purchaser’s Portion(s) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer of Capital pursuant to clause (b)(i) or and (fy) plus on each Weekly Settlement Date, in the amount case of Collections then held for the Issuer such Purchaser pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI FleetCor or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI FleetCor (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI FleetCor (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s aggregate of each Purchasers’ 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 thereofFee.
(d) Upon receipt of funds deposited into The Servicer shall distribute the Administration Account pursuant to clause amounts described (cand at the times set forth) in 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 each Purchaser Agent ratably according to the Issuer 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 CapitalCapital 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 Servicer’s own account (payable in arrears on each Monthly Settlement Date) in payment in full of the Issuer’s 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 Issuer 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 CapitalCapital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, second third to each Purchaser Agent ratably according to the Issuer 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%), third, ; 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 Servicer in payment in full of all accrued Servicing FeesPurchasers within its Purchaser Group ratably according to Discount and Capital, and 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 Issueramounts 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 hereunderor 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 the 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 the Issuereach 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 other Person (including, if applicable, the originator of such Receivable), or any setoff or dispute between the Seller or any Affiliate of the Seller 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 adjustmentadjustment 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 Section 1(gSections 1(j) or (n3(a) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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;
full and shall immediately pay any and all such amounts to a Lock-Box Account (iiior as otherwise directed by the Administrator at such time) except as provided in 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”), or ;
(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 Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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, time the Seller shall wish to cause the reduction of the Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex C 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 $20,000,000; 15,000,000 (or such greater amount as agreed to by the Administrator and the Majority Purchaser Agents) and (B) at least two 3 Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $20,000,000 15,000,000, and less than or equal to $50,000,000; and (C) at least three Business Days prior to the date of each such reduction for any reduction of Capital greater than $50,000,000Paydown Notice shall include, in each case such notice shall have been received by 3:00 p.m. New York City time on such date and 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 Issuerbenefit of each Purchaser ratably according to its Capital, for payment to each such Purchaser (or its related Purchaser Agent for the Administrator benefit of such Purchaser) on (1) solely the next Weekly Settlement Date with respect to any reduction described in subsections (f)(i)(B) or (f)(i)(C) Portions of Capital maintained by such Purchaser immediately following 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 paymentrelated 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 Administrator benefit of such Purchaser) only when in fact finally so paid; provided, that that:
(A) the amount of any such reduction shall be not less than $1,000,000 100,000 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 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 Issuer, out of the Issuer’s 's Share of such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s '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, on behalf of the Issuer, the remainder of the Issuer’s 's Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,
(iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer the entire remainder of the Issuer’s 's Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “"Termination Day” " and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s 's Share of the Servicing Fee accrued and unpaid through such day.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator reasonable and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.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: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 Issuerbenefit of the Secured Parties, out of the Issuer’s Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the each Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s aggregate 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 the IssuerPurchasers, the remainder of the Issuer’s Share of such Collections. Such remainder shall shall, to the extent representing a return on the Aggregate Capital, be automatically reinvested reinvested, ratably, according to each Purchaser’s Capital, in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not remit such remainder to the Seller or reinvest, but shall set aside and hold in trust for the Issuer Administrator (for the benefit of the 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) or (y) be deposited in the LC Collateral Account, in each case, as applicable, on the next Settlement Date in accordance with Section 1.4(c); provided, further, that (x) in the case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (a “Declining Notice”) to its Purchaser Agent and the 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 this clause (ii) or (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to its Purchaser Agent and the Administrator of its refusal, following any request by the Seller to extend the then Facility Termination Date, to extend its Commitment hereunder (an “Exiting Purchaser”), then in either case set forth in clause (x) or (y) above, such Purchaser’s ratable share (determined according to outstanding Capital) of Collections shall not be reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;
(iii) if such day is a Termination DayDay (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) for the Issuer ), the entire remainder of such Collections (or in the Issuercase of a Declining Conduit Purchaser or an Exiting Purchaser, an amount equal to such Purchaser’s Share 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 Collectionsprovision 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 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 conditionsconditions 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: (xw) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (yx) the amounts that are required to be set aside pursuant to clause (i), the proviso provisos to clause (ii) and clause (iii) plus (zy) the Seller’s Share of the Servicing Fee accrued and unpaid through such dayday 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 shall, in accordance with the priorities set forth in Section 1.4(d), deposit into the Administration Account (or such other account designated by the Administrator)each Purchaser Agent’s account, 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)Date, Collections held for such Purchaser Agent (for the Issuer 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 Issuer benefit of its related Purchasers) pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI Arch Sales or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI Arch Sales (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI Arch Sales (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s aggregate of each Purchasers’ Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set asideFee. On or prior to the last day of each Settlement Period, the Administrator 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) Upon receipt of funds deposited into The Servicer shall distribute the Administration Account pursuant to amounts described (and at the times set forth) in clause (c), the Administrator shall cause such funds to be distributed ) 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 Issuer 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 CapitalCapital 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 Issuer’s 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 first, if Arch Sales or an Affiliate thereof is not the Servicer, to the Issuer 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 CapitalCapital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group and all accrued Fees, second third, to each Purchaser Agent ratably according to the Issuer 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, thirdsecond 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 Servicer 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 payment 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 full clause (b) of all accrued Servicing Feesthe definition thereof or a Termination Event is continuing, and fourthan 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 Issueramounts 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 Secured 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 (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 Letter Letters and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuereach 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 Seller, any Affiliate of the Seller, or any setoff or dispute between Originator, the Seller Transferor, the Servicer or any Affiliate of the Seller 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 adjustmentadjustment 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 Section 1(gSections l(j) or (n3(a) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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 fullfull 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 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 Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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, time the Seller shall wish to cause the reduction of the Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased InterestAggregate Capital), the Seller may do so as follows:
(i) the Seller shall give the Administrator Administrator, each Purchaser Agent and the Servicer written notice in substantially the form of Annex C (each, a “Paydown Notice”) (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 the Aggregate Capital greater than $20,000,000 and less than or equal to $50,000,000; 20,000,000 and (CB) at least three five Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $50,000,00020,000,000, in each case such notice Paydown Notice shall have been received by 3:00 p.m. New York City time on such date and shall include 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; and
reduction or (iiiB) the Servicer Seller shall hold such Collections in trust remit to each Purchaser Agent’s account (for the Issuerbenefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group), for payment in immediately available funds, an amount equal 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 desired amount of such paymentreduction together with accrued and unpaid Aggregate Discount, and the Capital shall be deemed reduced in the amount Aggregate Discount 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.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 Each Servicer 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 for the request benefit of the AdministratorSecured Parties (or, if so requested by the Administrative Agent, segregate in a separate account approved by the Administrator) Administrative Agent), for application in accordance with the Issuer, out priority of the Issuer’s Share of such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees payments set forth below, all Collections on Pool Receivables that are received by such Servicer or any SPV Entity or received in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of 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, on behalf of the Issuer, the remainder of the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect theretoany 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 Purchased Interest would exceed 100%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, then on any day and if so requested by the Servicer 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, for the avoidance of doubt, any Collections that are not so Released shall not reinvest, but shall set aside and hold be held in trust by the Servicers for the Issuer (and shall, at the request benefit of the Administrator, segregate Secured Parties or segregated and held in a separate account approved by the AdministratorAdministrative Agent unless and until such Collections are Released or distributed on a Settlement Date, in each case, in accordance with the terms hereof. On each Settlement Date, the Servicers (or, following its assumption of control of the Lock-Box Accounts, the Administrative Agent) a portion 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, that the payment of such fees, costs and expenses from Collections that, together on deposit in such Lock-Box Accounts on days other than Settlement Dates in accordance with the other Collections set aside pursuant terms of the applicable Lock-Box Agreements shall not constitute a breach or default under this Agreement for any purpose;
(ii) second, to this paragrapheach 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%,such Servicer) plus any applicable Canadian Sales Taxes thereon;
(iii) if 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 Breakage Fees due to such day is a Termination Day, set aside, segregate Purchaser and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) other Purchaser Party for the Issuer the entire remainder of the Issuer’s Share of the Collections; providedimmediately preceding Yield Period, that plus, 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, thereafterapplicable, the conditions set forth in Section 2 amount of Exhibit II are satisfied 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 waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, andPurchaser Party;
(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)fourth, 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)(ix) or (fy) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuerbelow, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as followsapplicable:
(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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
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 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 Issuer, out of the Issuer’s Share of such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of 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, on behalf of the Issuer, the remainder of the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer benefit of the 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 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 other priority of payments set forth below, all Collections set aside pursuant to this paragraph, shall equal on Pool Receivables that are received by the amount necessary to reduce U.S. Servicer or the Purchased Interest to 100%,
(iii) if such day is a Termination Day, set aside, segregate and hold U.S. Borrower or received in trust (and shall, any Lock-Box Account the customer of record of which at the request of applicable Lock-Box Bank is the AdministratorU.S. Borrower (each such Lock-Box Account, segregate in a separate account approved by the Administrator) for the Issuer the entire remainder of the Issuer’s Share of the Collections“U.S. Lock-Box Account”); provided, however, that if amounts are set aside and held in trust on any Termination Day so long as each of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions precedent set forth in Section 2 3 of Exhibit II are satisfied or waived on such date, the U.S. Servicer may release to the U.S. Borrower from such Collections the amount (if any) necessary to pay (i) the purchase price for Receivables purchased by the Administrator, U.S. Borrower on such previously set-aside amounts shall be reinvested date in accordance with clause the terms of the U.S. Sale Agreement or (ii) on amounts owing by the day 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 subsequent satisfaction or waiver Collections in the following order of conditions, andpriority:
(ivi) release first, to the Seller U.S. Servicer for the payment of the accrued Servicing Fees payable to it for the immediately preceding Interest Period (subject plus, if applicable, the amount of Servicing Fees payable to Section 1.4(fit for any prior Interest Period to the extent such amount has not been distributed to the U.S. Servicer)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause ;
(ii) or second, to each Lender and other Credit Party (ratably, based on the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (iamount then due and owing), the proviso U.S. Borrower’s Share of all accrued and unpaid Interest and Fees due to clause such Lender and other Credit Party accrued during the immediately preceding Interest Period (ii) including any additional amounts or indemnified amounts payable under Sections 1.10 and clause (iii) plus (z) 3.1 in respect of such payments), plus, if applicable, the SellerU.S. Borrower’s Share of the Servicing Fee accrued amount of any such Interest and unpaid through Fees (including any additional amounts or indemnified amounts payable under Sections 1.10 and 3.1 in respect of such day.payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;
(ciii) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator)third, 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 paymentx), Collections held for the Issuer pursuant to clause (b)(iy) or (fz) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuerbelow, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as followsapplicable:
(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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
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 IssuerAdministrator (for the benefit of the Purchasers), out of the Issuer’s Purchasers’ Share of such Collections, first, an amount equal to the Purchasers’ aggregate amount of Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter Letters accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issueraggregate 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 the Issuereach Purchaser Group, the remainder of the Issuer’s Purchasers’ Share of such Collections. Such remainder shall shall, to the extent representing a return on the aggregate Capital, be automatically deemed to be reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect theretothereto ratably, according to each Purchaser’s Capital; 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 Administrator (for the Issuer 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%; provided, further, that in the case of any Purchaser that has provided notice (an “Exiting Notice”) to its Purchaser Agent of its refusal, to extend its Commitment hereunder (an “Exiting Purchaser”), then such Exiting Purchaser’s ratable share of such Collections based on its Capital shall not be reinvested (after the termination of its Commitment) and shall instead be held in trust for Administrator (for the benefit of such Exiting Purchaser) and applied in accordance with clause (iii) below,
(iii) if such day is a Termination DayDay (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 Issuer benefit of each Purchaser Group the entire remainder of the Issuer’s 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 Administratorappropriate Person or Persons, such previously set-aside amounts shall 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 dayday 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 Administration Account (date hereof, or such other account designated by the Administratorsuch Purchaser to Servicer from time to time), 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)Date, Collections held for the Issuer applicable Purchaser, pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer Administrator (for the benefit of such Purchaser) pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI CONSOL Energy or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI CONSOL Energy (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI CONSOL Energy (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issueraggregate of each Purchaser Group’s Ratable Share of the Purchasers’ Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set asideFee. On the last day of each Settlement Period, the Administrator 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 into the Administration Account pursuant to clause (c), the Administrator 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 Issuer 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 CapitalCapital 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 Issueraggregate 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 Issuer 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 CapitalCapital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, second to such Purchaser Agent ratably according to the Issuer 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, and 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 each Portion the Purchasers in its Purchaser Group’s percentage interest of Capital have been reduced to zerozero 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 IssuerAdministrator for distribution to each Purchaser, each Purchaser Agent, the Administrator and any other Indemnified Party or Affected Person in payment in full of 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 Letter Letters and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuereach 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, or Section 2, 3 or 4 of Exhibit VI 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 the Issuer 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 the Issuer such Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuersuch 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, 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 Administrator, the Purchaser Agents 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“Paydown Notice”) 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 commencereduction;
(ii) on 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 IssuerPurchasers ratably (based on their respective Portions of Capital funded thereby), for payment to the Administrator Purchaser Agents on (1) solely with respect to any reduction described in subsections (f)(i)(B) or (f)(i)(C) the next Weekly Settlement Date, Date immediately following the current Settlement Period 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 approved by the Administrator of such paymentPurchaser Agents, and the Capital shall be deemed reduced in the amount to be paid to the Administrator Purchaser Agents 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 2 contracts
Sources: Receivables Purchase Agreement (Consol Energy Inc), Receivables Purchase Agreement (Consol Energy Inc)
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 IssuerInvestors or the Banks that hold such Receivable Interest, out of the Issuer’s Share percentage of such Collections, firstCollections represented by such Receivable Interest, an amount equal to the Discount Yield, Fees and Collection Agent Fee accrued through such day for each Portion of Capital such Receivable Interest and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of the Servicing Fee accrued through such day 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, Seller on behalf of the Issuer, Investors or the remainder of Banks that hold such Receivable Interest the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion percentage of such Collections thatrepresented by such Receivable Interest, together with to the other Collections set aside extent representing a return of Capital, by recomputation of such Receivable Interest pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,Section 2.03;
(iii) if such day is a Termination DayLiquidation Day for any one or more Receivable Interests, set aside, segregate aside and hold in trust (and shalland, at the request of the AdministratorAgent, segregate in a separate account approved by the Administratorsegregate) for the Issuer Investors or the entire remainder Banks that hold such Receivable Interests (x) if such day is a Liquidation Day for less than all of the Issuer’s Share Receivable Interests, the percentage of such Collections represented by such Receivable Interests, and (y) if such day is a Liquidation Day for all of the CollectionsReceivable Interests, all of the remaining Collections (but not in excess of the Capital of such Receivable Interests); provided, provided that if amounts are set aside and held in trust on any Liquidation Day occurring prior to the Termination Day of Date, and thereafter prior to the type described in clause (a) of the definition of “Termination Day” and, thereafter, Settlement Date for such Fixed Period the conditions set forth in Section 2 of Exhibit II 3.02 are satisfied or waived by the AdministratorAgent, such previously set-set aside amounts shall shall, to the extent representing a return of Capital, be reinvested in accordance with clause the preceding subsection (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 dayremaining Collections.
(c) The Servicer Collection Agent shall deposit into the Administration Account (or such other account designated by the Administrator)Agent's Account, on each the 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)each Receivable Interest, Collections held for the Issuer Investors or the Banks that relate to such Receivable Interest pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof2.04(b).
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c)Agent's Account, the Administrator Agent shall cause such funds to be distributed distribute them as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%Liquidation Day, 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 Investors or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.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 Issuerbenefit of each Investor, out of the Issuer’s Share percentage of such CollectionsCollections represented by the Purchased Interest of such Investor, first, first an amount equal to the Discount accrued through such day for each Portion of Capital of such Purchased Interest and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter Fees payable to such Investor and accrued and unpaid through such dayday and not previously set aside, and third, to the extent funds are available therefor, an amount equal to the Issuer’s 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, on behalf of the Issuersuch Investor, the remainder of the Issuer’s Share percentage of such Collections. Such remainder , represented by its Purchased Interest, to the extent representing a return on the Capital; such Collections shall be automatically reinvested in Pool Receivables, and in the Related Security, Security and Collections and other proceeds with respect thereto; provided, however, that if and the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside Investor shall be automatically recomputed pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,Section 1.3;
(iii) if such day is a Termination Day, (A) set asideaside and retain in the Collection Account for such Investor, 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 percentage of the CollectionsCollections represented by the Purchased Interest of such Investor; providedprovided that, that so long as the Facility Termination Date has not occurred, if any amounts are so set aside and held retained in trust the Collection Account on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, and thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.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 Issuer, out of the Issuer’s 's Share of such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s '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, on behalf of the Issuer, the remainder of the Issuer’s 's Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,
(iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer the entire remainder of the Issuer’s Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.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 Collection Account for the benefit of the AdministratorPurchaser (and, segregate in a separate account approved by the Administratorcase 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) for the Issuerbelow), out of the Issuer’s Share of such Collections, first, first an amount equal to the all Discount accrued through such day for each Portion of Capital and not previously set aside, aside and second, an amount equal to the fees set forth in sum of the Fee Letter Utilization Fees, Commitment Fees and Breakage Costs accrued and unpaid through such dayday and not previously set aside, and third, to the extent funds are available therefor, an amount equal to the Issuer’s 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, on behalf of the IssuerPurchaser, the remainder of the Issuer’s Share of such Collections. Such remainder shall shall, (x) to the extent representing a return of Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections Purchased Assets and other proceeds with respect theretothereto and (y) to the extent not representing a return of Capital, be paid (on behalf of the 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 Issuer (and shall, at the request benefit of the Administrator, segregate Purchaser in a separate account approved by accordance with clause (iii) below 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%,, then all such remaining Collections shall be so set aside for the benefit of the Purchaser), rather than remitting all of such remaining Collections to the Seller for Reinvestment or for payment of the Deferred Purchase Price;
(iii) if such day is a Termination Day, set aside, segregate aside and hold maintain in trust (and shall, at the request Collection Account for the benefit of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer Purchaser the entire remainder of the Issuer’s Share of the such Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release subject to Section 1.6(f), pay to the Seller (subject to Section 1.4(f)on behalf of the Purchaser) for its 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) or the proviso to clause (iii) 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) the Seller’s Share all reasonable and appropriate out-of-pocket costs and expenses of the Servicing Fee accrued Servicer for servicing, collecting and unpaid through such dayadministering the Pool Receivables.
(c) The On each Settlement Date, the Servicer shall (i) deposit into the Administration Purchaser’s Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Agent) all Collections held on deposit in the Collection Account for the Issuer 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 (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) third of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate1.6(b)(i) that the right to retain the portion in respect of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement PeriodFee, the Administrator will notify the Servicer by facsimile of the an amount of Discount equal to such accrued with respect to each Portion of Capital during such Settlement Period or portion thereofServicing Fee.
(d) Upon receipt of funds deposited into the Administration Purchaser’s Account pursuant to clause (cSection 1.6(c), the Administrator 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 Day, such funds shall be distributed in the Purchased Interest does not exceed 100%, following order of priority: first to the Issuer Purchaser in payment in full of all unpaid Discount accrued during the most recently ended Discount and fees (other than Servicing Fees) with respect to each Portion of CapitalAccrual Period, 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), second to the Servicer (payable in arrears on each Settlement Date) Purchaser in payment in full of all unpaid Utilization Fees, Commitment Fees and Breakage Costs accrued during the Issuer’s Share most recently ended Discount Accrual Period, third to the Purchaser in payment of outstanding Capital (and accrued Servicing Fees so Discount thereon) to the extent that funds have been set asideaside 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 or on a day when Day, such funds shall be distributed in the Purchased Interest exceeds 100%, following order of priority: first to the Issuer Purchaser in payment in full of all accrued Discount with respect to each Portion of Capitaland unpaid Discount, 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 Purchaser in payment in full of all accrued Servicing and unpaid Utilization Fees, Commitment Fees and fourthBreakage Costs, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable third to the Servicer have been paid Purchaser in fullpayment in full of all outstanding Capital, fourth to the IssuerPurchaser, the Administrator Agent and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunderor the Servicer hereunder (including, without limitation, pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4). After the Capital, Discount, fees payable pursuant to occurrence of the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in fullFinal Payout Date, all additional Collections with respect to the Purchased Interest Assets shall be paid to the Seller for its own accountaccount in payment of the Deferred Purchase Price for such Purchased Assets.
(e) For the purposes of this Section 1.41.6:
(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 revision, cancellation, allowancediscount, rebate, discount credit, counterclaim, billing error or other adjustment made by the Seller Seller, any Originator or any Affiliate of the SellerServicer, or any setoff or dispute between the Seller Seller, any Originator or any Affiliate of the Seller 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(gparagraphs (e), (f) or (nk) of Exhibit III, or Section 2, 3 or 4 1 of Exhibit VI 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 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 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, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator Agent, the Purchaser or the Issuer 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 by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator Agent or the IssuerPurchaser, 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, time the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, in whole or reduction to zero, of the entire Capital of the Purchased Interestin part), the Seller may do so as follows:
(i) the Seller shall give the Administrator and Agent at least (x) five (5) Business Days’ prior written notice thereof in the Servicer case of any reduction of the Capital to zero ($0) or (y) one (1) Business Day’s prior written notice in the form case of Annex C (A) at least one Business Day prior to the date of such reduction for any partial 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 $50,000,000Capital, in each case such notice shall have been received by 3:00 p.m. New York City time on such date and shall include either case, setting forth the proposed 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 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 trust the Collection Account for the Issuerbenefit of the Purchaser, for payment to the Administrator Purchaser’s Account on (1) solely with respect to any reduction described in subsections (f)(i)(B) or (f)(i)(C) the next Weekly Settlement DateDate (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 (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 Servicer to the Administrator of such paymentPurchaser, 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 Administrator Purchaser’s Account only when in fact finally so paid; providedprovided that, that the amount of any such reduction shall be not less than one million dollars ($1,000,000 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 Collection Account for the benefit of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer, out of the Issuer’s Share percentage of such CollectionsCollections represented by the Purchased Interest, first, first an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set asidetransferred, second, an amount equal to the fees set forth in the Fee Letter all accrued and unpaid through such dayFees not previously transferred, and third, to the extent funds are available therefor, an amount equal to the Issuer’s '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, on behalf of the Issuer, the remainder of the Issuer’s Share percentage of such Collections. Such remainder , represented by the Purchased Interest, to the extent representing a return on the Capital; such Collections shall be automatically reinvested in Pool Receivables, and in the Related Security, Security and Collections and other proceeds with respect thereto; provided, however, that if and 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 not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce 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 be remitted to 100%,the Seller but shall be set aside within the Collection Account for the benefit of the Issuer in accordance with paragraph (iii) below;
(iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at aside within the request Collection Account for the benefit of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer the entire remainder of the Issuer’s Share percentage of the CollectionsCollections represented by the Purchased Interest; provided, provided that so long as the Facility Termination Date has not occurred if any amounts are set aside and held in trust so transferred to the Collection Account on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, and thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or are waived by the Administrator, such previously set-aside transferred amounts shall shall, to the extent representing a return on the Capital, be reinvested in accordance with clause the preceding paragraph (ii) on the day of such subsequent satisfaction or waiver of conditions, ; and
(iv) if such day is not a Termination Day, release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: of (x) any amounts that are required to be reinvested in accordance with clause the foregoing paragraph (ii) or the proviso to clause paragraph (iii) plus ), (y) the amounts that are required to be set aside pursuant to clause paragraph (i), the proviso to clause (ii) above and clause (iii) plus (z) in the Seller’s Share 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 Servicing Fee accrued and unpaid through such dayPool Receivables.
(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)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 UGI BAX or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI BAX (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI BAX (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(ib)
(i) that represents the Issuer’s 's Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set asideFee. On the last day of each Settlement 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 Settlement Yield Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
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 Issuerbenefit of each Purchaser Group, out of the Issuer’s Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s aggregate 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 the Issuereach Purchaser Group, the remainder of the Issuer’s Share of such Collections. Such remainder shall shall, to the extent representing a return on the Aggregate Capital, be automatically reinvested ratably, according to each Purchaser’s Capital, in Pool Receivables, and in the Related Security, Collections and other proceeds with respect 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 reinvest, but shall set aside and hold in trust for the Issuer 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 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) or (y) be deposited in the LC Collateral Account, as applicable, on the next Settlement Date in accordance with Section 1.4(c); provided, further, that (x) in the case of any Purchaser that is a Conduit Purchaser, if such Conduit Purchaser has provided notice (a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Conduit Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser with respect to which the Purchaser Termination Date has occurred (an “Exiting Purchaser”) then in either case (x) or (y), above, such Collections shall not be reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii), below.
(iii) if such day is a Termination DayDay (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 Issuer benefit of each Purchaser Group the entire remainder of the IssuerCollections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser an amount equal to such Declining Conduit Purchaser’s Share 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 Collectionsprovision 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 type described in clause (aPurchaser Termination Date with respect to any Purchaser) of the definition of “Termination Day” 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 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 satisfaction, cure or waiver of conditionsconditions 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 excess, if any, of: (xw) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (yx) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (zy) the Seller’s Share of the Servicing Fee accrued and unpaid through such dayday 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 shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into the Administration Account each applicable Purchaser Agent’s account (or such other account designated by the Administratorsuch applicable Purchaser or its Purchaser Agent), on each Settlement Date (or solely in the case of Collections held for each Purchaser with respect to Collections held for the Issuer pursuant to clause (fsuch Purchaser’s Portion(s) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer of Capital pursuant to clause (b)(i) or paragraph (f) ), plus the amount of Collections then held for the Issuer related Purchasers pursuant to clauses (b)(ii) and (iii) of this Section 1.4; provided, that if UGI Triumph or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI Triumph (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI Triumph (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s aggregate Purchasers’ 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 thereofFee.
(d) Upon receipt of funds deposited into The Servicer shall distribute the Administration Account pursuant to clause amounts described (cand at the times set forth) in 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%Day:
(1) first, first to each Purchaser Agent ratably according to the Issuer 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 Fees (other than Servicing Fees) with respect to each Portion of CapitalCapital maintained by such Purchasers, and 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 clause paragraph (c), to the Servicer Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the Issuer’s aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day Day:
(1) first, if Triumph or on a day when an Affiliate thereof is not the Purchased Interest exceeds 100%Servicer, first to the Issuer 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 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 CapitalCapital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group,
(3) third, second to each Purchaser Agent ratably according to the Issuer 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 Capital each Purchaser’s Capital,
(or4) fourth, if such day is not a Termination Day, 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 Purchased Interest to 100%), third, aggregate outstanding amount of the LC Participation Amount) and (y) an amount equal to the Servicer LC Fee Expectation at such time (or such portion thereof not currently on deposit in payment in full of all accrued Servicing Fees, and fourththe 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 Issueramounts 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 owed 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 the 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 the Issuereach Purchaser Group, the Administrator Administrator, the Structuring Agent 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.
(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 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 adjustmentadjustment 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 Section 1(gSections 1(j) or (n3(a) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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;
full and shall immediately pay any and all such amounts to a Lock-Box Account (iiior as otherwise directed by the Administrator at such time) except as provided in 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”), or ;
(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 Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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, time the Seller shall wish to cause the reduction of the Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex C E (each, a “Paydown Notice”) (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 the Aggregate Capital greater than $20,000,000 and less than or equal to $50,000,000; 20,000,000 (or such greater amount as agreed to by the Administrator and the Majority Purchaser Agents) and (CB) at least three five Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $50,000,00020,000,000, in and each case such notice Paydown Notice shall have been received by 3:00 p.m. New York City time on such date and shall include 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 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.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 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:
(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 Issuerbenefit of the Purchasers, out of the Issuer’s Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter Fees accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s 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, on behalf of the Issuer, Seller the remainder of the Issuer’s Share of such Collections. Such remainder shall shall, (x) to the extent representing a return of the Aggregate Capital, be automatically reinvested (ratably among the Purchasers according to each Purchaser’s Capital) in Pool Receivables, and in the Related Security, Collections and other proceeds with respect theretothereto and (y) to the extent not representing a return of the Aggregate Capital, be paid to the Seller in respect of the Deferred Purchase Price for the Purchased Assets; provided, however, that if the Purchased 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 Issuer 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 at such time), which amount shall be deposited to the Administration Account (for the benefit of the Purchasers) on the next Settlement Date in accordance with Section 1.6(c); provided, further, that (x) in the case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to its Purchaser Agent of its refusal, pursuant to Section 1.12, to extend its Commitment hereunder (an “Exiting Purchaser”) then in either case (x) or (y), above, such Purchaser’s ratable share (determined according to outstanding Capital) of such remaining Collections shall not be reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below,
(iii) if such day is a Termination DayDay (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 Issuer benefit of the Purchasers the entire remainder of such Collections (or in the Issuercase of a Declining Conduit Purchaser or an Exiting Purchaser an amount equal to such Purchaser’s Share ratable share (determined according to outstanding Capital) of the 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 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 conditionsconditions or revocation of Declining Notice or Exiting Notice, as the case may be, and
(iv) release subject to Section 1.6(f), pay to the Seller (subject to Section 1.4(f)on behalf of the Administrator and the Purchasers) for its 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 proviso provisos to clause (ii) and clause (iii) above, plus (z) the Seller’s Share all reasonable and appropriate out-of-pocket costs and expenses of the Servicing Fee accrued Servicer for servicing, collecting and unpaid through such dayadministering the Pool Receivables.
(c) The Servicer shall 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 or, solely with respect to Collections held for the Issuer Purchasers pursuant to clause (f) Section 1.6(f)(iii), such other date as set forth in clause approved by the Administrator with at least five (f)(iii5) for Business Days prior written notice to the Administrator of such payment), Collections held for the Issuer Purchasers pursuant to clause (b)(iSection 1.6(b)(i) or (f1.6(f) plus the amount of Collections then held for the Issuer Purchasers pursuant to clauses (b)(ii) and (iii) of Section 1.41.6; provided, that if UGI Peabody or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI Peabody (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(iSection 1.6(b)(i) that represent the Issuer’s Share of represents the Servicing Fee is revoked, UGI Peabody (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(iSection 1.6(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)) 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 Interest Assets Coverage Percentage does not exceed 100%, first to the Issuer Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) in payment in full of all accrued Discount and fees (other than Servicing Fees) Fees with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) above and has not retained such amounts pursuant to clause (c)) above, to the Servicer (payable in arrears on each Settlement Date) in payment in full of the 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 Assets Coverage Percentage exceeds 100%, first to the Issuer Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) in payment in full of all accrued Discount and Fees with respect to each Portion of Capital, second to the Issuer 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 Interest Assets Coverage Percentage to 100%) (determined as if such Collections had been applied to reduce the aggregate outstanding Capital), third, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants, the amount (if any) necessary to cause the amount of cash collateral held in the LC Collateral Account to equal the aggregate outstanding amount of the LC Participation Amount (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Assets Coverage Percentage to 100%) (determined as if such Collections had been applied to reduce the aggregate outstanding amount of the LC Participation Amount), fourth, to the Servicer in payment in full of all accrued Servicing Fees, and fourthfifth, 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 IssuerPurchaser 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. 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 sixth, after the Seller and occurrence of the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in fullFinal Payout Date, all additional Collections with respect to the Purchased Interest Assets shall be paid to the Seller for its own accountaccount in payment of the Deferred Purchase Price for such Purchased Assets.
(e) For the purposes of this Section 1.41.6:
(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 1(gl(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii)) above, or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator Administrator, any Purchaser Agent or the Issuer 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 Administrator, such Purchaser Agent or the Issuer such Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator Administrator, such Purchaser Agent or the Issuersuch 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, time the Seller shall wish to cause the reduction of the Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased InterestAggregate Capital), the Seller may do so as follows:
(i) the Seller shall give the Administrator Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex C (the “Paydown Notice”) (A) at least one two Business Day Days’ prior to the date of such reduction for any reduction of Aggregate Capital less than or equal to $20,000,000; 20,000,000 and (B) at least two five Business Days Days’ prior to the date of such reduction for any reduction of Aggregate 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 $50,000,00020,000,000, 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 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 Issuerbenefit of the Administrator (for the benefit of each Purchaser), for payment to the Administrator by deposit into the Administration Account on (1) solely with respect to any reduction described in subsections (f)(i)(B) or (f)(i)(C) the next Weekly Settlement Date, Date immediately following the current Settlement Period 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 approved by the Administrator of such paymentand the Majority Purchaser Agents, and the 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 $1,000,000 300,000 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.
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 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 Issuer, out priority of the Issuer’s Share of such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, 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 the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of 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, on behalf of the Issuer, the remainder of the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect theretoany 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 and hold 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 trust for accordance with the Issuer (and shall, at the request terms of the Administrator, segregate in a separate account approved by Transfer Agreement and (B) release to the Administrator) SPE all or a portion of Collections received on Sold Assets in exchange for the SPE designating an equivalent amount (based on aggregate Outstanding Balances) of Unsold Receivables as new Sold Receivables on 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 Purchaser/Lenders) 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 (so long as the Administrative Agent has not taken exclusive control of the Collection Accounts) shall distribute such Collections that(or, together 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 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/Lender’s Capital with respect to the Yield Period most recently ended prior to such Settlement Date, (x) all unpaid Fees accrued up to (but not including) such Settlement Date, (y) any indemnity payments under Section 4.02 due to such Purchaser/Lender and other Collections 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 aside pursuant forth in clause (A), (B) or (C) below, as applicable:
(A) prior to this paragraphthe occurrence of the Termination Date, shall to the extent that a Capital Coverage Amount Deficit exists on such date, to the Purchaser/Lenders (ratably, based on the aggregate outstanding Capital of each Purchaser/Lender at such time) for the payment of a portion of the outstanding Aggregate Capital at such time, in an aggregate amount equal to the amount necessary to reduce the Purchased Interest Capital Coverage Amount Deficit to 100%,zero ($0);
(iiiB) if on and after the occurrence of the Termination Date, to each Purchaser/Lender (ratably, based on the aggregate outstanding Capital of each Purchaser/Lender at such day is a time) for the payment in full of the aggregate outstanding Capital of such Purchaser/Lender at such time; or
(C) prior to the occurrence of the Termination Day, set aside, segregate and hold in trust (and shallDate, at the request election 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 SPE 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 Section 2.03(d), to the payment of all or any portion of the outstanding Capital of the Purchaser/Lenders at such time (ii) ratably, based on the day aggregate outstanding Capital of each Purchaser/Lender at such subsequent satisfaction or waiver of conditions, andtime);
(iv) release fourth, to the Seller Secured Parties (subject 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 Section 1.4(f)the Secured Parties; and
(v) fifth, the balance, if any, to be paid to the SPE for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or account. For the proviso to clause (iii) plus (y) avoidance of doubt, the amounts that are required 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 set aside 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), the proviso shall be paid or distributed to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such dayPurchaser/Lender Party.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if If and to the extent the Administrator Administrative Agent or the Issuer any other Secured Party shall be required for any reason to pay over to an any Person (including any Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Relief Proceeding) any amount received by it on its behalf 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 SPE and, accordingly, the Administrator Administrative Agent or the Issuersuch other Secured Party, as the case may be, shall have a claim against the Seller 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.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
Appears in 1 contract
Sources: Receivables Purchase and Financing Agreement (Phillips 66)
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 InterestParticipation.
(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 Account(s) and deposit on such day such Collections into the Collection Account. With respect to all Collections on deposit in the Collection Account on such day, the Servicer shall:
(i) if such day is not a Termination Day, set aside and hold in trust within the Collection Account (and shallor if such day is a Termination Day, at transfer to the request of the Administrator, segregate in a separate account approved by the AdministratorLiquidation Account) for the Issuerbenefit of the Purchaser, out of the Issuer’s Share percentage of such CollectionsCollections represented by the Participation, first, first an amount equal to the Discount accrued through such day for each Portion of Capital Investment and not previously set aside, aside and second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of Servicing Fee, the Servicing Commitment Fee and 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, on behalf of the IssuerPurchaser, the remainder of the Issuer’s Share percentage of such Collections. Such remainder , represented by the Participation, to the extent representing a return on the Investment; such Collections shall be automatically reinvested in Pool Receivables, and in the Related Security, Security and Collections and other proceeds with respect thereto, and the Participation shall 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 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 the Collection Account for the Issuer (and shall, at the request benefit of the Administrator, segregate Purchaser in a separate account approved by the Administratoraccordance with paragraph (iii) 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%,below;
(iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at A) transfer to the request Liquidation Account for the benefit of the Administrator, segregate Purchaser (x) the amounts set aside in a separate account approved by the Administrator) Collection Account for the Issuer benefit of the Purchaser pursuant to paragraph (i) and (ii) above and not so previously transferred to the Liquidation Account, and (y) the entire remainder of the Issuer’s Share percentage of the CollectionsCollections represented by the Participation; provided, provided that so long as the Facility Termination Date has not occurred if any amounts are set aside and held in trust 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 amounts previously transferred to the Liquidation Account shall, to the extent representing a return on the Investment, 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 type described Collections in the Collection Account represented by the Seller's share of the Collections, if any; provided that so long as the Facility Termination Date has not occurred if any amounts are so transferred to the Liquidation Account pursuant to clause (aB) of the definition of “above on any Termination Day” and, Day and thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or are waived by the AdministratorAgent, such previously set-set aside amounts shall be reinvested in accordance with clause (ii) distributed to the Seller on the day of such subsequent satisfaction or waiver of conditions; provided, further, if any amounts are so transferred to the Liquidation Account on any Termination Day and thereafter the Investment, Program Fees, Discount and Servicing Fees with respect to the Participation and all other amounts payable by the Seller to the Purchaser, the Agent or any other Indemnified Party or Affected Person hereunder shall have been paid in full, any remaining amounts on deposit in the Liquidation Account shall be distributed to the Seller for its own account; 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: of (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus such amounts, (y) the amounts that are required to be set aside within the Collection Account pursuant to clause paragraph (i), the proviso to clause (ii) above and clause (iii) plus (z) in the Seller’s Share 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 Servicing Fee accrued and unpaid through such dayPool Receivables.
(c) The Servicer shall deposit into the Administration Purchaser's Account (or such other account designated by the AdministratorAgent), on the last day of each Settlement Date Period relating to a Portion of Investment:
(or solely i) Collections held on deposit in the Collection Account and 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 and Commitment Fees with respect to such Portion of Investment;
(ii) Collections held on deposit in the Liquidation Account for the Issuer benefit of the Purchaser pursuant to clause Section 1.4(f) with respect to such Portion of Investment; and
(fiii) such other date as set forth in clause the lesser of (f)(iiix) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held on deposit in the Liquidation Account for the Issuer benefit of the Purchaser pursuant to clauses (b)(iiSection 1.4(b)(iii) and (iiiy) such Portion of Section 1.4; provided, that if UGI or an Affiliate thereof is Investment. The Servicer shall deposit to its own account from Collections held on deposit in the Servicer, such day is not a Termination Day Collection Account and the Administrator has not notified UGI (or such AffiliateLiquidation Account pursuant to Section 1.4(b)(i) that the right to retain the portion in respect of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement PeriodFee, the Administrator will notify the Servicer by facsimile of the an amount of Discount equal to such accrued with respect to each Portion of Capital during such Settlement Period or portion thereofServicing Fee.
(d) Upon receipt of funds deposited into the Administration Purchaser's Account pursuant to clause (c)Section 1.4(c) with respect to any Portion of Investment, the Administrator 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%Day, first to the Issuer Purchaser in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each such Portion of CapitalInvestment, second, to the Purchaser in payment of accrued and unpaid Program Fees and Commitment Fees, and secondthird, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(iSection 1.4(b)(i) and has not retained deposited such amounts to its own account pursuant to clause (cSection 1.4(c), to the Servicer (payable in arrears on the last day of each Settlement Datecalendar month) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, aside with respect to such Portion of Investment; and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%Day, first to the Issuer Purchaser in payment in full of all accrued Discount with respect to each such Portion of CapitalInvestment, second to the Issuer Purchaser in payment in full of Capital (orsuch Portion of Investment, third to the Purchaser in payment of accrued and unpaid Program Fees and Commitment Fees, fourth, if such day Seller or any of its Affiliates is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), thirdServicer, to the Servicer in payment in full of all accrued Servicing FeesFees with respect to such Portion of Investment, and fourthfifth, if the Capital Investment and accrued Discount with respect to each Portion of Capital Investment have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than the Seller) have been paid in full, to the IssuerPurchaser, the Administrator Agent and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunderhereunder and then to the Servicer (if the Servicer is the Seller) in payment in full of all accrued Servicing Fees. After the CapitalInvestment, DiscountProgram Fees, fees payable pursuant to the Fee Letter Discount and Servicing Fees with respect to the Purchased InterestParticipation, and any other amounts payable by the Seller and the Servicer to the IssuerPurchaser, the Administrator Agent or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest 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 defective, rejected, returned, repossessed or foreclosed goods or services, or any revisiondiscount, cancellation, allowance, rebate, discount rebate or other adjustment made by the Seller Seller, any Originator or any Affiliate of the SellerServicer, or any setoff or dispute between the Seller Seller, any Originator or any the Servicer (if the Servicer is IDI or an Affiliate of the Seller thereof) 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(gparagraphs (f) or (nl) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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 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 after a Termination Day 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 Agent or the Issuer 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 the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator Agent or the IssuerPurchaser, 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, time the Seller shall wish to cause the reduction of the Capital a Portion of Investment (but not to commence the liquidation, or reduction to zero, of the entire Capital Investment of the Purchased InterestParticipation), the Seller may do so as follows:
(i) the Seller shall give the Administrator and the Servicer Agent at least five Business Days' prior written notice in the form of Annex C thereof (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 including 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 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 trust the Liquidation Account for the Issuerbenefit of the Purchaser, for payment to the Administrator Agent on (1) solely with respect the last day of the current Settlement Period relating 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 Portion of such paymentInvestment, and the Capital applicable Portion of Investment shall be deemed reduced in the amount to be paid to the Administrator Agent only when in fact finally so paid; provided, that provided that,
A. the amount of any such reduction shall be not less than $1,000,000 5,000,000 and shall be an integral multiple of $100,0001,000,000, and the entire Investment of the Participation after giving effect to such reduction shall be not less than $5,000,000 unless the entire Investment 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 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 (Imperial Sugar Co /New/)
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 Issuerbenefit of each Purchaser Group, out of the Issuer’s Purchasers' Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital Investment and not previously set aside, second, an amount equal to the fees set forth in the each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s 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 the Issuereach Purchaser Group, the remainder of the Issuer’s Purchasers' Share of such Collections. Such remainder shall shall, to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser's Investment, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer 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, further, that in the case of any Purchaser that has provided notice (an "Exiting Notice") to its Purchaser Agent of its refusal, pursuant to Section 1.10, to extend its Commitment hereunder (an "Exiting Purchaser"), then such Purchaser's ratable share of such Collections based on its Investment shall not be reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below,
(iii) if such day is a Termination DayDay (or any day following the provision of an Exiting Notice), set aside, segregate 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 Administrator) for the Issuer benefit of each Purchaser Group the entire remainder of the Issuer’s Purchasers' Share of the CollectionsCollections (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 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 conditionsconditions 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 's Share of the Servicing Fee accrued and unpaid through such dayday 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 shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into the Administration Account each applicable Purchaser's account (or such other account designated by the Administratorsuch applicable Purchaser or its Purchaser Agent), on each Settlement Date (or solely with respect to Collections held for the Issuer Purchasers pursuant to clause (ff)(iii) of Section 1.4 such other date as set forth in clause approved by the Administrator with at least (f)(iii5) for Business Days prior written notice to the Administrator of such payment), Collections held for the Issuer 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 the Issuer such Purchaser pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) York may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s aggregate of each Purchaser Group's Ratable Share of the Purchasers' Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set asideFee. On or before the last day of each Settlement PeriodYield Period with respect to any Portion of Investment, the Administrator applicable Purchaser Agent will notify the Servicer by facsimile of the amount of the Discount accrued with respect to each such Portion of Capital Investment during such Settlement the related Yield Period or portion thereofthen ending.
(d) Upon receipt of funds deposited into The Servicer shall distribute the Administration Account pursuant to clause amounts described (cand at the times set forth) in 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 each Purchaser Agent ratably according to the Issuer 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 CapitalInvestment 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 Servicer's own account (payable in arrears on each Settlement Date) in payment in full of the Issuer’s 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 Issuer 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 CapitalInvestment funded or maintained by the Purchasers within such Purchaser Agent's Purchaser Group, second third to each Purchaser Agent ratably according to the Issuer 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 Capital each Purchaser's Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, ; 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 Servicer in payment in full of all accrued Servicing FeesPurchasers within its Purchaser Group ratably according to Discount and Investment, respectively and fourth, if the Capital Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Capital 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 Issuerbenefit 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 CapitalAggregate Investment, Aggregate Discount, fees payable pursuant to the 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 the Issuereach 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 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, or Section 2, 3 or 4 of Exhibit VI 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 Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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, time the Seller shall wish to cause the reduction of the Capital Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased InterestAggregate 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 Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex C E hereto (A) at least one two Business Day Days' prior to the date of such reduction written notice thereof for any reduction of Capital Aggregate Investment less than or equal to $20,000,000; 10,000,000 and (B) at least two three Business Days Days' prior to the date of such reduction written notice thereof for any reduction of Capital Aggregate Investment greater than $20,000,000 and less than or equal to $50,000,000; and 10,000,000 (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 in trust for the Issuerbenefit of each Purchaser ratably according to its Investment, for payment to each such Purchaser (or its related Purchaser Agent for the Administrator benefit of such Purchaser) on the (1i) solely next Settlement Date with respect to any reduction described in subsections (f)(i)(B) Portions of Investment maintained by such Purchaser immediately following the related current Yield Period or (f)(i)(Cii) the next Weekly Settlement Date, or (2) with respect to any reduction described in subsection (f)(i)(A), such other date approved by the Administrator with at least one (1) five Business Day Days prior written notice to the Administrator of such payment, and the Capital 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 Administrator benefit of such Purchaser) only when in fact finally so paid; provided, that 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 IssuerAdministrator (for the benefit of the Purchasers), out of the Issuer’s Share percentage of such CollectionsCollections represented by the Purchased Interest, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s 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, on behalf of the IssuerPurchasers, the remainder of the Issuer’s Share percentage of such Collections. Such Collections represented by the Purchased Interest (to the extent representing a return on Capital); such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not remit such remainder to the Seller or reinvest, but shall set aside and hold in trust for the Issuer 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, 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 Issuer the entire remainder of the Issuer’s 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 Administratorappropriate Person or Persons, such previously set-aside amounts shall 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: (xw) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (yx) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (zy) the Seller’s Share of the Servicing Fee accrued and unpaid through such dayday 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 (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)Date, Collections held for the Issuer Administrator (for the benefit of the Purchasers) pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer Administrator (for the benefit of the Purchasers) pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI Arch Sales or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI Arch Sales (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI Arch Sales (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Purchasers’ Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set asideFee. 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 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 Issuer’s 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 first, if Arch Sales or an Affiliate thereof is not the Servicer, to the Issuer 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, second third, to the Issuer 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%), thirdfourth, to the Servicer 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 payment in full such LC Collateral Account equals the aggregate outstanding amount of all accrued Servicing Feesthe LC Participation Amount, and fourthfifth, 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 IssuerPurchasers 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 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 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 IssuerPurchasers, 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 SellerSeller 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 adjustmentadjustment 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 Section 1(gSections l(j) or (n3(a) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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 fullfull 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 payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer 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 the Issuer such Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuersuch 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, 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 substantially the form of Annex C (each, a “Paydown Notice”) (A) at least one two Business Day Days prior to the date of such reduction for any reduction of Capital less than or equal to $20,000,000; 20,000,000 and (B) at least two five 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 $50,000,00020,000,000, in each case such notice Paydown Notice shall have been received by 3:00 p.m. New York City time on such date and shall include 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 reductionreduction 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 in trust for the Issuerbenefit of each of the Purchasers ratably (based on their respective Portions of Capital funded thereby), 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, Date immediately following the current Settlement Period 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 approved by the Administrator of such paymentAdministrator, and the 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 $1,000,000 300,000 and shall be an integral multiple of $100,000100,000 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 Issuerbenefit of each Purchaser Group, out of the Issuer’s Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter Fees accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s 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 the Issuereach Purchaser Group, the remainder of the Issuer’s Share of such Collections. Such remainder shall 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; 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 Issuer 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%% (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) on the next Settlement Date in accordance with Section 1.4(c); provided, further, that (x) in the case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to its Purchaser Agent of its refusal, pursuant to Section 1.22, to extend its Commitment hereunder (an “Exiting Purchaser”) then in either case set forth in subclauses (x) or (y), above, such Collections shall not be reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below,
(iii) if such day is a Termination DayDay (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 Issuer benefit of each Purchaser Group the entire remainder of such Collections (or in the Issuercase of a Declining Conduit Purchaser or an Exiting Purchaser an amount equal to such Purchaser’s Share 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 Collectionsprovision 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 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 conditionsconditions 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 excess, if any, of: (xw) amounts required to be reinvested in accordance with clause (ii) or ii)or the proviso to clause (iii) plus (yx) the amounts that are required to be set aside pursuant to clause (i), the proviso provisos to clause (ii) and clause (iii) plus (zy) the Seller’s Share of the Servicing Fee accrued and unpaid through such dayday 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 shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into the Administration Account each applicable Purchaser Agent’s account (or such other account designated by the Administratorsuch applicable Purchaser or its Purchaser Agent), 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 paymentany Portion of Investment), Collections held for the Issuer each Purchaser with respect to such Purchaser’s Portion(s) of Capital pursuant to clause (b)(i) or b)(i)or (f) ), plus the amount of Collections then held for the Issuer related Purchasers pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI ANR or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI ANR (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI ANR (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s aggregate of each Purchasers’ Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set asideFee. On or prior to the last day of each Settlement Yield Period, the Administrator each Purchaser Agent will notify the Servicer by facsimile of the amount of Discount accrued during such Yield Period or portion thereof with respect to each Portion of Capital during for each Purchaser within such Settlement Period or portion thereofPurchaser Agent’s Purchaser Group.
(d) Upon receipt of funds deposited into The Servicer shall distribute the Administration Account pursuant to clause amounts described (cand at the times set forth) in 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 each Purchaser Agent ratably according to the Issuer 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) Fees with respect to each Portion of CapitalCapital 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 Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the Issuer’s 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 ANR or an Affiliate thereof is not the Servicer, to the Issuer 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 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 and Fees with respect to each Portion of CapitalCapital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, second third to each Purchaser Agent ratably according to the Issuer 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, thirdrespectively, fourth, to the Servicer 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 payment in full such LC Collateral Account equals 100% of all accrued Servicing Feesthe LC Participation Amount (or, and fourthif 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), 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 ANR or an Affiliate thereof) have been paid in full, to each Purchaser Group ratably, based on the Issueramounts 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 hereunderor Servicer hereunder and, sixth, to the Servicer’s own account (if the Servicer is ANR 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 Letter Fees and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuereach 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 the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller 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 adjustmentadjustment 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 Section 1(gSections 1(j) or (n3(a) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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 fullfull 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 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 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 Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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, time the Seller shall wish to cause the reduction of the Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex C E (each, a “Paydown Notice”) (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 the Aggregate Capital greater than $20,000,000 and less than or equal to $50,000,000; 25,000,000 (or such greater amount as agreed to by the Administrator and the Majority Purchaser Agents) and (CB) at least three five Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $50,000,00025,000,000, in and each case such notice Paydown Notice shall have been received by 3:00 p.m. New York City time on such date and shall include 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 Issuerbenefit of each Purchaser ratably according to its Capital, for payment to each such Purchaser (or its related Purchaser Agent for the Administrator benefit of such Purchaser) on (1) solely with respect to any reduction described in subsections (f)(i)(B) or (f)(i)(C) the next Weekly Settlement Date, Date (or (2such other date as agreed to by the Administrator) with respect to any reduction described in subsection (f)(i)(A), Portions of Capital maintained by such other date with at least one (1) Business Day prior written notice to Purchaser immediately following the Administrator of such paymentrelated 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 Administrator benefit of such Purchaser) only when in fact finally so paid; provided, that that:
(A) the amount of any such reduction shall be not less than $1,000,000 100,000 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,
Appears in 1 contract
Sources: Receivables Purchase Agreement (Alpha Natural Resources, 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 Issuerbenefit of each Purchaser Group, out of the Issuer’s Purchasers’ Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issueraggregate 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 SellerSeller ratably according to the Ratable Capital, on behalf of the Issuereach Purchaser Group, the remainder of the Issuer’s Purchasers’ Share of such Collections. Such remainder shall shall, to the extent representing a return on the Aggregate Capital, ratably, according to each Purchaser’s Capital Percentage be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer 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 Administrator) a portion of such Collections that, together with the other such Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%; provided, further, that in the case of any Purchaser that has provided notice (an “Exiting Notice”) to its Purchaser Agent of its refusal, pursuant to Section 1.10, to extend its Commitment hereunder (an “Exiting Purchaser”), then beginning with the Facility Termination Date in effect for that Exiting Purchaser such Purchaser’s ratable share of such Collections based on its Capital Percentage shall not be reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below,
(iii) if such day is a Termination DayDay (or the Facility Termination Date in effect for an Exiting Purchaser or any subsequent day), set aside, segregate 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 Administrator) for the Issuer benefit of each Purchaser Group the entire remainder of the Issuer’s Purchasers’ Share of such Collections (or in the Collectionscase of an Exiting Purchaser an amount equal to such Exiting Purchaser’s ratable share of such Collections based on its Capital Percentage; provided, that solely for the purpose of determining such Exiting Purchaser’s ratable share of such Collections applicable to its Capital Percentage (and not for purposes of calculating any Fees or Discount payable to such Exiting Purchaser hereunder), such Exiting Purchaser’s Capital shall be deemed to remain constant from the date of the provision of an Exiting Notice until the date such Exiting 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 such Collections shall be set aside for such Exiting Purchaser ratably in respect of its Capital Percentage (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 the Facility Termination Date in effect for an Exiting Purchaser or any subsequent day) and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator and the Majority 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 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 Percentage, be remitted for the benefit of the Seller and automatically reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditionsconditions or evocation of Exiting Notice, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any such 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 first and second proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such dayday and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Receivables.
(c) The Servicer shall shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into the Administration Account each applicable Purchaser’s account (or such other account designated by the Administratorsuch applicable Purchaser or its Purchaser Agent), on each Settlement Date (or solely with respect to Collections held for the Issuer Purchasers pursuant to clause (ff)(iii) of Section 1.4 such other date as set forth in clause approved by the Administrator with at least five (f)(iii5) for Business Days prior written notice to the Administrator of such payment), Collections held for the Issuer 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 Issuer such Purchaser pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI BPI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) BPI may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issueraggregate of each Purchaser Group’s Ratable Share of the Purchasers’ Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set asideFee. On or before the last day of each Settlement PeriodPeriod with respect to any Portion of Capital, the Administrator applicable Purchaser Agent will notify the Servicer by facsimile of the amount of the Discount accrued with respect to each such Portion of Capital during such the related Settlement Period or portion thereofthen ending.
(d) Upon receipt of funds deposited into The Servicer shall distribute the Administration Account pursuant to clause amounts described (cand at the times set forth) in 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 each Purchaser Agent ratably according to the Issuer Discount and fees (other than Servicing 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 accrued Discount and fees (other than Servicing Fees) with respect to each Portion of CapitalCapital 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 (other than Servicing 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 Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the Issueraggregate 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 BearingPoint is not the Servicer, to the Issuer 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 CapitalCapital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, second third to each Purchaser Agent all of its respective fees, fourth to each Purchaser Agent ratably according to the Issuer Ratable Capital 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 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 second, thirdthird and fourth clauses of this Section l.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Discount and Capital Percentage, respectively; fifth if BearingPoint is the Servicer, to the Servicer Servicer’s own account in payment in full of all accrued Servicing Fees, and fourthsixth, 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 all accrued Servicing Fees payable to the Servicer have been paid in full, to each Purchaser Group ratably (for the Issuerbenefit 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 Capital, Aggregate Discount, fees payable pursuant to the 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 the Issuereach 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;
(ii) if on any day any of the representations or warranties in Section 1(g) or (or) (n) of Exhibit III, III or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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, time the Seller shall wish to cause the reduction of the Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased InterestAggregate Capital), the Seller may do so as follows:
(i) the Seller shall give the Administrator Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex C E (A) at least one two Business Day Days’ prior to the date of such reduction for any reduction of Aggregate Capital less than or equal to $20,000,000; 10,000,000 and (B) at least two five Business Days Days’ prior to the date of such reduction for any reduction of Aggregate Capital greater than $20,000,000 and less than or equal to $50,000,000; and 10,000,000 (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 commenceoccur);
(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 reductionreduction or (B) the Seller shall remit to the applicable Purchaser’s account 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; and
(iii) in the case of Clause (ii)(A) above, the Servicer shall hold such Collections in trust for the Issuerbenefit of each Purchaser ratably according to its Capital Percentage, for payment to each such Purchaser (or its related Purchaser Agent for the Administrator benefit of such Purchaser) on the (1) solely next Settlement Date with respect to any reduction described in subsections (f)(i)(B) or (f)(i)(C) Portion of Capital maintained by such Purchaser immediately following the next Weekly related current Settlement Date, Period or (2) with respect to any reduction described in subsection (f)(i)(A), such other date approved by the Administrator with at least one (1) five Business Day Days prior written notice to the Administrator of such payment, 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 Administrator benefit of such Purchaser) only when in fact finally so paid; provided, that that: 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 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
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 Issuerbenefit of each Purchaser Group, out of the Issuer’s Share of such Collections, first, 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, second, (ii) an amount equal to the fees set forth in the Fee Letter Fees accrued and unpaid through such day, day and third, to the extent funds are available therefor, (iii) an amount equal to the Issuer’s 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 the IssuerPurchasers, the remainder of the Issuer’s Share of such Collections. Such remainder shall shall, to the extent representing a return on the Aggregate Capital, be automatically reinvested reinvested, ratably according to each Purchaser’s Capital, in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if if, after giving effect to any 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 remit such remainder to the Seller or reinvest, but shall set aside and hold in trust for the Issuer 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%,% or cause the sum of the Aggregate Capital plus the 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 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) for distribution and application or (y) be deposited in the LC Collateral Account, in each case, as applicable, on the next Settlement Date in accordance with Section 1.4(d); provided, further, that (x) in the case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to its Purchaser Agent of its refusal, pursuant to Section 1.13, to extend 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 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 DayDay (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 Issuer benefit of each Purchaser Group the entire remainder of such Collections (or in the Issuercase of a Declining Conduit Purchaser or an Exiting Purchaser an amount equal to such Purchaser’s Share ratable share of the Collectionssuch 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 are received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside and held for such Purchaser ratably in trust on any Termination Day respect of the type described in clause its Capital (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, as recalculated)); and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (xw) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (yx) 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 (zy) the Seller’s Share of the Servicing Fee accrued and unpaid through such dayday 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 On each Settlement Date, the Servicer shall shall, in accordance with the priorities set forth in Section 1.4(d), deposit into the Administration Account (or such other account designated specified by the Administrator), on each Settlement Date (or solely with respect to Purchaser Agent Collections held for such Purchaser Agent (for the Issuer benefit of its related Purchasers) 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)(iSection 1.4(b)(i) or (f1.4(f) plus the amount of Collections then held for such Purchaser Agent (for the Issuer benefit of its related Purchasers) pursuant to clauses (b)(iiSections 1.4(b)(ii) and (iii) of Section 1.41.4(b)(iii); provided, that if UGI Cloud Peak or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI Cloud Peak (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI Cloud Peak (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(iSection 1.4(b)(i) that represents the Issuer’s aggregate of the Purchasers’ Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set asideFee. On the last day of Not later than 1 Business Day prior to each Settlement PeriodDate, the Administrator each Purchaser Agent will notify the Servicer by facsimile electronic mail of the amount of Discount accrued with respect to each Portion of Capital during such the related Settlement Period or portion thereofPeriod.
(d) Upon receipt of funds deposited into The Servicer shall distribute the Administration Account pursuant to clause amounts described (cand at the times set forth) in 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 Day:
(other than Servicing FeesA) with respect to each Portion of Capital, and secondfirst, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(iSection 1.4(b)(i) and has not retained such amounts pursuant to clause (cSection 1.4(c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s 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 or on a day when the Purchased Interest exceeds 100%Day:
(A) first, first to the Issuer 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, second 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 Issuer 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 Capital 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;
(orD) 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) if such day is not a Termination DayDay of the type described in clause (b) of the definition thereof or a Termination Event is continuing, the an amount necessary to reduce the Purchased Interest to 100%), third, equal to the Servicer LC Fee Expectation at such time (or such portion thereof not currently on deposit in payment in full of all accrued Servicing Fees, and fourththe LC Collateral Account);
(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 have been paid in full, to each Purchaser Agent ratably, based on the Issuerremaining 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 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 payable pursuant to the Fee Letter Fees and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuereach 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.
(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 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 adjustmentadjustment 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, promptly, and in any event within one Business Day, 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 Section 1(gSections 1(j) or (n3(a) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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 fullfull 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), 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 Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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 Collections, 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 or hold such amount in trust and apply it in accordance with this Section 1.4, as the case may be, 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, time the Seller shall wish to cause the reduction of the Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex C E (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; (Beach, a “Paydown Notice”) 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 each such reduction for any reduction of Capital greater than $50,000,000Paydown Notice shall include, in each case such notice shall have been received by 3:00 p.m. New York City time on such date and 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 Issuerbenefit 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 on (1) solely with respect to any reduction described in subsections (f)(i)(B) or (f)(i)(C) the next Weekly Settlement Date, or (2and Seller) with respect to any reduction described in subsection (f)(i)(A), Portions of Capital maintained by such other date with at least one (1) Business Day prior written notice to Purchaser immediately following the Administrator of such paymentrelated 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 Administrator benefit of such Purchaser) only when in fact finally so paid; provided, that that:
(A) the amount of any such reduction shall be not less than $1,000,000 100,000 for each Purchaser Group and shall be an integral multiple of $100,000.100,000 in excess thereof, and unless reduced to zero, the entire Aggregate Capital aft
Appears in 1 contract
Sources: Receivables Purchase Agreement (Cloud Peak 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 Issuer, out of the Issuer’s Share of such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of 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, on behalf of the Issuer, the remainder of the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request benefit of the AdministratorSecured Parties (or, if so requested by the Administrative 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 or in any HSBC Exception Account; provided, however, that so long as each of the conditions precedent set forth in Section 5.03 are satisfied on such date, the Servicer may release to the Seller from such Collections the amount (if any) necessary to pay (i) the purchase price for Receivables purchased by the Seller on such date in accordance with the terms of the Purchase and Sale Agreement or (ii) amounts owing by the Seller to any Originator under any Intercompany Loan Agreement (each such release, a portion “Release”). On each Settlement Date, the Servicer (or, following its assumption of control of the Collection Accounts pursuant to Section 8.03, 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 of Servicing Fees payable for any prior Yield Period to the extent such amount has not been distributed to the Servicer);
(ii) second, to the Administrative Agent for distribution to each Purchaser (ratably, based on the amount then due and owing each Purchaser and any related Purchaser Party), all accrued and unpaid Yield, Fees and Breakage Fees due to such Purchaser and related Purchaser Party for the immediately preceding Yield Period (including any additional amounts or indemnified amounts payable under Sections 4.03 and 12.01 in respect of such Collections thatpayments), together with the other Collections set aside pursuant to this paragraphplus, shall equal if applicable, the amount necessary 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 reduce the Purchased Interest extent such amount has not been distributed to 100%,such Purchaser or Purchaser Party;
(iii) if such day is a Termination Daythird, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer the entire remainder of the Issuer’s Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such paymentx), Collections held for the Issuer pursuant to clause (b)(iy) or (fz) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuerbelow, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as followsapplicable:
(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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
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 Issuer, out of the Issuer’s 's Share of such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s '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, on behalf of the Issuer, the remainder of the Issuer’s 's Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the 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, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer the entire remainder of the Issuer’s Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.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 (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 Issuerbenefit of each Purchaser Group, out of the Issuer’s Share of such Collections, 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, and third, to the extent of such Collections as reduced by any allocations pursuant to clauses first and second, an amount equal to the fees set forth in the Fee Letter Fees accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the 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 the Issuereach Purchaser Group, the remainder of the Issuer’s Share of such Collections. Such remainder shall 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 theretoRights; 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 Issuer 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) on the next Settlement Date in accordance with Section 1.4(c); and second, to the LC Collateral Account; provided, further, that if, as of any date following the date on which any amounts have been set aside due to a shortfall pursuant to 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 that has provided notice (an “Exiting Notice”) to its Purchaser Agent of its refusal, pursuant to Section 1.22, to extend its 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,
(iii) if such day is a Termination DayDay (or a day on which the Commitment of an Exiting Purchaser terminates), set aside, segregate 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 Issuer benefit of each Purchaser Group the entire remainder of such Collections (or, in the Issuercase of an Exiting Purchaser, an amount equal to such Purchaser’s Share ratable share of the Collectionssuch 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 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 conditionsconditions or revocation of Exiting Notice, as the case may be, and
(iv) release to the Seller (subject to Section 1.4(f)) , release to the Seller 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 or reinvested pursuant to clause clauses (i), the proviso to clause (ii) and clause (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’s Share of Seller under this Agreement to the Servicing Fee accrued Purchasers, the LC Bank, the Administrator and unpaid through such dayany other Indemnified Party or Affected Person.
(c) The Servicer shall shall, in accordance with the priorities set forth in Section 1.4(d) below, deposit into the Administration Account each applicable Purchaser Agent’s account (or such other account designated by the Administratorsuch applicable Purchaser or its Purchaser Agent), 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 paymentany Portion of Capital), Collections held for the Issuer each Purchaser pursuant to clause Sections 1.4(b)(i), (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(iiii) and (iii) of and Section 1.41.4(f); provided, that if UGI VWR or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI VWR (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(iSection 1.4(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 asideFee. On or prior to the last day of each Settlement Calculation Period, the Administrator each Purchaser Agent will notify the Servicer by facsimile email communications or other electronic delivery of the amount of Discount accrued with respect to each its Portion of Capital during such Settlement Calculation Period or portion thereof.
(d) Upon receipt 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 deposited into the Administration Account pursuant to clause (c)available therefor, 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 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 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)(iSection 1.4(b)(i) and has not retained such amounts pursuant to clause (cSection 1.4(c), to the Servicer Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of 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 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 Issuer 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 CapitalCapital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, second third to each Purchaser Agent ratably (based on the Issuer 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 Capital (orx) 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), thirdfourth, to the Servicer 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 payment in full of all accrued Servicing Feessuch LC Collateral Account equals (A) the amount necessary to reduce the Adjusted LC Participation Amount to zero ($0 and/or €0, as applicable) and fourth(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 Issueramounts 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 CapitalCapital (on any day when the Purchased Interest exceeds 100% or any day on which the Commitment of an Exiting Purchaser terminates), Aggregate Discount, fees payable pursuant to the Fee Letter Fees and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuereach Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, 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 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 adjustmentadjustment 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 Section 1(gSections 1(j) or (n3(a) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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 fullrespect 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 clause (iSections 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 its payment for application to specific Receivables; andspecified an applicable Receivable;
(iv) if and to the extent the Administrator Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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, time the Seller shall wish wishes to cause the reduction of the Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex C E (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; (Beach, a “Paydown Notice”) at least two (2) Business Days prior to the date of such reduction for any reduction of Capital greater than $20,000,000 reduction, and less than or equal to $50,000,000; and (C) at least three Business Days prior to the date of each such reduction for any reduction of Capital greater than $50,000,000Paydown Notice shall include, in each case such notice shall have been received by 3:00 p.m. New York City time on such date and 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 Seller shall set aside (or cause to be set aside) and hold such Collections in trust for the Issuerbenefit of each Purchaser ratably according to its Capital, for payment to each such Purchaser (or its related Purchaser Agent for the Administrator benefit of such Purchaser) on the date specified in the Paydown Notice (1) solely with respect or such other date as agreed to any reduction described in subsections (f)(i)(B) or (f)(i)(C) by the next Weekly Settlement Date, or (2Administrator) 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.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 Collection Accounts for the benefit of the AdministratorPurchaser (and, segregate in a separate account approved by the Administratorcase 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) for the Issuerbelow), out of the Issuer’s Share of such Collections, first, first an amount equal to the all Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in sum of the Fee Letter Used Fees, Unused Fees and Breakage Costs accrued and unpaid through such dayday and not previously set aside, and third, to the extent funds are available therefor, an amount equal to the Issuer’s 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, on behalf of the IssuerPurchaser, the remainder of the Issuer’s Share of such Collections. Such remainder shall shall, (x) to the extent representing a return of Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections Purchased Assets and other proceeds with respect theretothereto and (y) to the extent not representing a return of Capital, be paid (on behalf of the 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 Issuer (and shall, at the request benefit of the Administrator, segregate Purchaser in a separate account approved by accordance with clause (iii) below 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%,, then all such remaining Collections shall be so set aside for the benefit of the Purchaser), rather than remitting all of such remaining Collections to the Seller for Reinvestment or for payment of the Deferred Purchase Price;
(iii) if such day is a Termination Day, set aside, segregate aside and hold maintain in trust (and shall, at the request Collection Account for the benefit of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer Purchaser Parties the entire remainder of the Issuer’s Share of the such Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release subject to Section 1.6(f), pay to the Seller (subject to Section 1.4(f)on behalf of the Purchaser) for its the Seller’s own account 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) or the proviso to clause (iii) 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) the Seller’s Share all reasonable and appropriate out-of-pocket costs and expenses of the Servicing Fee accrued Servicers for servicing, collecting and unpaid through such dayadministering the Pool Receivables.
(c) The On each Settlement Date, each Applicable Servicer shall (i) deposit into the Administration applicable Purchaser’s Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Agent) all Collections held on deposit in each Collection Account for the Issuer 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 (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) third of Section 1.41.6(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 if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right no amounts shall be payable to retain the portion of the Collections set aside pursuant to Garland under clause (b)(iii) 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 thereofabove.
(d) Upon receipt of funds deposited into any of the Administration Account Purchaser’s Accounts pursuant to clause (cSection 1.6(c), the Administrator 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 Day, such funds shall be distributed in the Purchased Interest does not exceed 100%, following order of priority: first to the Issuer Purchaser in payment in full of all unpaid Discount accrued during the most recently ended Discount and fees (other than Servicing Fees) with respect to each Portion of CapitalAccrual Period, 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), second to the Servicer (payable in arrears on each Settlement Date) Purchaser in payment in full of all unpaid Used Fees, Unused Fees and Breakage Costs accrued during the Issuer’s Share most recently ended Discount Accrual Period, third to the Purchaser in payment of outstanding Capital (and accrued Servicing Fees so Discount thereon) to the extent that funds have been set asideaside 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 or on a day when Day, such funds shall be distributed in the Purchased Interest exceeds 100%, following order of priority: first to the Issuer Purchaser in payment in full of all accrued Discount with respect to each Portion of Capitaland unpaid Discount, 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 Purchaser in payment in full of all accrued Servicing and unpaid Used Fees, Unused Fees and fourthBreakage Costs, if third to the Capital and accrued Discount with respect to each Portion Purchaser in payment in full of Capital have been reduced to zeroall outstanding Capital, and all accrued Servicing Fees payable fourth to the Servicer have been paid in full, to the IssuerPurchaser, the Administrator Agent and any other Indemnified Purchaser Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunderor 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 Capital, Discount, fees payable pursuant to occurrence of the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in fullFinal Payout Date, all additional Collections with respect to the Purchased Interest Assets shall be paid to the Seller for its own accountaccounts in payment of the Deferred Purchase Price for the Purchased Assets.
(e) For the purposes of this Section 1.41.6:
(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 revision, cancellation, allowancediscount, rebate, discount credit, counterclaim, billing error or other adjustment made by the Seller Seller, any Originator or any Affiliate of the SellerServicer, or any setoff or dispute between the Seller Seller, any Originator or any Affiliate of the Seller Servicer and an 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 Section 1(gparagraphs (e), (f) or (nk) of Exhibit III, or Section 2, 3 or 4 1 of Exhibit VI 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 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 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, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator Agent, the Purchaser or the Issuer 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 by the Administrator or the Issuer but rather to have been retained by the Seller of the relevant Pool Receivable and, accordingly, the Administrator Agent or the IssuerPurchaser, 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, time the Seller shall wish to cause the reduction of the Aggregate Capital (but not to commence the liquidation, in whole or reduction to zero, of the entire Capital of the Purchased Interestin part), the Seller may do so as follows:
(i) the Seller shall give the Administrator and the Servicer 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 (Aeach, a “Paydown Notice”) at least one Business Day prior to setting forth 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 proposed amount of such proposed reduction and reduction, the proposed date on which such reduction will commencecommence (the “Paydown Date”) and the Approved Currency of the Capital to be reduced;
(ii) on the proposed date of the 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 trust a Collection Account for the Issuerbenefit of the Purchaser, for payment to the Administrator Purchaser’s Account on (1) solely with respect to any reduction described in subsections (f)(i)(B) or (f)(i)(C) the next Weekly Settlement DateDate (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 (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 Servicers to the Administrator of such paymentPurchaser, 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 Administrator Purchaser’s Account only when in fact finally so paid; providedprovided that, that the amount of any such reduction shall be not less than (A) one million U.S. Dollars ($1,000,000 and shall be 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, unless the information set forth in such Paydown Notice is also delivered through Agent’s electronic platform or portal, such Paydown Notice shall not be effective and the commencement of the reduction of the Aggregate Capital shall not occur until the Agent shall have received such information from the Seller reasonably requested by the Agent to complete its authentication process with respect to such Paydown Notice and the results of the Agent’s authentication process shall be satisfactory to the Agent in its sole discretion, as notified by the Agent to the Seller in writing.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Manitowoc Foodservice, 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 Issuer, out of the Issuer’s 's Share of such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s '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, on behalf of the Issuer, the remainder of the Issuer’s 's Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,
(iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer the entire remainder of the Issuer’s 's Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “"Termination Day” " and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s 's Share of the Servicing Fee accrued and unpaid through such dayday 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 Settlement Date (or or, solely with respect to Collections held for the Issuer for payment pursuant to clause (f) ), such other date with at least the applicable number of Business Days prior written notice as set forth in clause (f)(iiif) for to the Administrator of such payment), Collections held for the Issuer pursuant to clause (b)(i), (f) or (fg) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI CSS or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI CSS (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s 's Share of the Servicing Fee is revoked, UGI CSS (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(ib)
(i) that represents the Issuer’s 's Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set asideFee. 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 's Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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 its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, 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 two Business Day Days prior to the date of such reduction for any reduction of Capital less than or equal to $20,000,000; 10,000,000, (B) at least two four Business Days prior to the date of such reduction for any reduction of Capital greater than $10,000,000 and less than or equal to $20,000,000 and (C) at least ten 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) to the extent funds equal to the amount of the proposed reduction have not been set aside pursuant to Section 1.4(g) 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 reinvested, when added to the amounts set aside pursuant to Section 1.4(g) below, shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections Collections, and all amounts set aside pursuant to Section 1.4(g)(iii) below, in trust for the Issuer, for payment to the Administrator on (1) solely with respect to any reduction described in subsections (f)(i)(B) or (f)(i)(CA) the next Weekly Settlement Date, Date immediately following the current Settlement Period or (2B) with respect to any reduction described in subsection (f)(i)(A), such other earlier date with at least one (1) two Business Day Days prior written notice to the Administrator with respect to any payment of such paymentCapital less than or equal to $10,000,000, or (2) four Business Days prior written notice to the Administrator with respect to any payment of Capital greater than $10,000,000 and less than or equal to $20,000,000 or (3) ten Business Days prior written notice to the Administrator with respect to any payment of Capital greater than $20,000,000, and the Capital shall be deemed reduced in 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 $100,000, and (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.
(g) If at any time the Seller shall wish to halt reinvestment during a Settlement Period in order to fund reductions of Capital under Section 1.4(f) above, the Seller may do so as follows:
(i) the Seller shall give written notice to the Administrator and the Servicer specifying the Settlement Period during which it wishes reinvestment to halt and the date it wishes such halt to commence;
(ii) the Servicer shall, from the date specified in the notice in Section 1.4(f)(i) above, cause Collections not to be reinvested until either (A) it receives notice from the Seller that the Seller wishes to resume reinvestment, (B) the Settlement Period specified in the notice in Section 1.4(g)(i) ends or (C) reinvestment of Collections shall be halted pursuant to Section 1.4(f)(ii) above; provided that Collections may be reinvested pursuant to the proviso to Section 1.4(g)(iii) below; and
(iii) the Servicer shall set aside such Collections and hold them in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator); provided that at any time that Collections are thus set aside, the Seller may request that the Servicer release all or a portion of such amounts, and the Servicer shall then apply such amounts pursuant to Section 1.4(b) (or, if the date of such request is a Settlement Date, deposit such amounts in the Administration Account pursuant to Section 1.4(b)).
Appears in 1 contract
Sources: Receivables Purchase Agreement (CSS 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 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 Administrator, segregate in a separate account approved by the Administratorsegregate) for the Issuer, out of the Issuer’s Share percentage of such CollectionsCollections represented by the Purchased Interest, first, first an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, aside and second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of 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, on behalf of the Issuer, the remainder of the Issuer’s Share percentage of such Collections. Such remainder , represented by the Purchased Interest, to the extent representing a return of Capital; such Collections shall be automatically reinvested in Pool Receivables, and in the Related Security, Security and Collections and other proceeds with respect thereto; provided, however, that if and the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside be automatically recomputed pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,Section 1.3;
(iii) if such day is a Termination Run-off Day, (x) 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 percentage of the CollectionsCollections represented by the Purchased Interest; provided, provided that if amounts are set aside and held in trust on any Termination Run-off Day of the type described in clause (a) of the definition of “Termination Day” and, and thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or are waived by the Administrator, such previously set-set aside amounts shall shall, to the extent representing a return of Capital, be reinvested in accordance with clause the preceding paragraph (ii) on the day of such subsequent satisfaction or waiver of conditions, and; and (y) transfer the Seller's share of the Collections to the Seller;
(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: of (x) such amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus and (y) the amounts that are required to be set aside pursuant to clause paragraph (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such dayabove.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on the last day of each Settlement Date Period relating to a Portion of Capital (or solely with respect to Collections held for the Issuer pursuant to clause (f) at such other date times as set forth in clause (f)(iii) for such paymentthe Administrator shall require), Collections held for the Issuer pursuant to clause (b)(iSection 1.4(b)(i) or Section 1.4(f) with respect to such Portion of Capital and the lesser of (fx) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(iiSection 1.4(b)(iii) and (iiiy) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereofCapital.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c)Section 1.4(c) with respect to any Portion of Capital, 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%Run-off Day, first to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each such Portion of Capital, 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 (cSection 1.4(b)(i), to the Servicer (payable in arrears on the last day of each Settlement Datecalendar month) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, 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%Run-off Day, first to the Issuer in payment in full of all accrued Discount with respect to each such Portion of Capital, second to the Issuer in payment in full of Capital (orsuch Portion of Capital, third, if such day the Servicer is not a Termination Day▇▇▇▇▇ & Minor Medical, the amount necessary to reduce the Purchased Interest to 100%), thirdInc. or an Affiliate thereof, to the Servicer in payment in full of all accrued Servicing FeesFees with respect to such Portion of Capital, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have has been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than ▇▇▇▇▇ & Minor Medical, Inc. 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 hereunderhereunder and then to the Servicer (if the Servicer is the Seller) in payment in full of all accrued Servicing Fees. After the Capital, Discount, fees payable pursuant to the Fee Letter Capital and Discount 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, or any credit memorandum, or any billing error, but not including reductions or adjustments in respect of finance charges (any of the foregoing reductions or adjustments being herein called a "Dilution Adjustment"), 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(gparagraphs (g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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 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 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.
(f) If Except for reductions in connection with the division or combination of Portions of Capital pursuant to Section 1.7 hereof or pursuant to any other Purchase Agreement, if at any time, time the Seller shall wish to cause the reduction of the 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 five Business Days' prior written notice in the form of Annex C thereof (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 including 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 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 in trust for the Issuer, for payment to the Administrator on (1) solely with respect the last day of the current Settlement Period relating 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 Portion of such paymentCapital, and the applicable Portion of Capital shall be deemed reduced in the amount to be paid to the Administrator only when in fact finally so paid; provided, that provided that,
A. 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 Capital of the Purchased Interest after giving effect to such reduction shall be not less than $10,000,000 and shall be in an integral multiple of $1,000,000,
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 the shortest remaining Fixed 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 AdministratorAgent, segregate in a separate account approved by the AdministratorAgent) for the Issuer, Purchasers out of such Collections attributable to the Issuer’s Share of such CollectionsPurchased Interest, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the IssuerPurchaser’s Share of the Servicing Fee accrued through such day and not previously set asideaside 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, on behalf of the IssuerAgent and the Purchasers, the remainder of the Issuer’s Share of such CollectionsCollections attributable to the Purchased Interest. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds Pool Assets with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer 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, set aside, segregate and hold in trust (and shall, at the request of the AdministratorAgent, segregate in a separate account approved by the AdministratorAgent) for the Issuer Purchasers the entire remainder balance of the Issuer’s Share any and all Collections of the Collectionsall 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 AdministratorAgent, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f1.4(d)) 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 dayday 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 AdministratorAgent), 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)Date, Collections held for the Issuer Purchasers pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer Purchasers pursuant to clauses the proviso to clause (b)(ii) and clause (iii) b)(iii), in each case, of this Section 1.4; provided, that if UGI AAR or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator Agent has not notified UGI AAR (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI AAR (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Purchasers’ Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set asideFee. On the last day of each Settlement Period, the Administrator 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 into the Administration Account pursuant to clause (c), the Administrator 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 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 Issuer’s 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 Issuer Purchasers in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer Agent, for the benefit of 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 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 IssuerPurchasers, the Administrator Agent and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After .
(iii) 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 IssuerPurchasers, the Administrator 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 Pool 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 1(g) or (nl(g) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI III hereof is not true with respect to any Pool Receivabletrue, 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)) 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 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 Agent or the Issuer Purchasers shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator Agent or the Issuer Purchasers but rather to have been retained by the Seller and, accordingly, the Administrator Agent or the IssuerPurchasers, 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, 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 Agent and the Servicer written notice in the form of Annex C C, (A) at least one two Business Day Days’ prior to the date of such reduction for any reduction of Capital less than or equal to $20,000,000; 10,000,000 and (B) at least two five Business Days 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 $50,000,00010,000,000, 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 shall commence;
(ii) on 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 IssuerPurchasers, for payment to the Administrator Agent on (1) solely with respect to any reduction described in subsections (f)(i)(B) or (f)(i)(C) the next Weekly Settlement Date, Date immediately following the current Settlement Period 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 approved by the Administrator of such paymentAgent, and the Capital shall be deemed reduced in the amount to be paid to the Administrator Agent only when in fact finally so paid; provided, that (A) the amount of any such reduction shall be not less than $1,000,000 500,000 and shall be an integral multiple of $100,000100,000 in 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 (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.
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 Issuerbenefit of the Secured Parties, out of the Issuer’s Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the each Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s aggregate 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 the IssuerPurchasers, the remainder of the Issuer’s Share of such Collections. Such remainder shall shall, to the extent representing a return on the Aggregate Capital, be automatically reinvested reinvested, ratably, according to each Purchaser’s Capital, in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not remit such remainder to the Seller or reinvest, but shall set aside and hold in trust for the Issuer Administrator (for the benefit of the 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) or (y) be deposited in the LC Collateral Account, in each case, as applicable, on the next Settlement Date in accordance with Section 1.4(c); provided, further, that (x) in the case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (a “Declining Notice”) to its Purchaser Agent and the 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 this clause (ii) or (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to its Purchaser Agent and the Administrator of its refusal, following any request by the Seller to extend the then Facility Termination Date, to extend its Commitment hereunder (an “Exiting Purchaser”), then in either case set forth in clause (x) or (y) above, such Purchaser’s ratable share (determined according to outstanding Capital) of Collections shall not be reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below;
(iii) if such day is a Termination DayDay (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) for the Issuer ), the entire remainder of such Collections (or in the Issuer729565239 15494375 7 case of a Declining Conduit Purchaser or an Exiting Purchaser, an amount equal to such Purchaser’s Share 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 Collectionsprovision 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 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 conditionsconditions 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: (xw) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (yx) the amounts that are required to be set aside pursuant to clause (i), the proviso provisos to clause (ii) and clause (iii) plus (zy) the Seller’s Share of the Servicing Fee accrued and unpaid through such dayday 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 shall, in accordance with the priorities set forth in Section 1.4(d), deposit into the Administration Account (or such other account designated by the Administrator)each Purchaser Agent’s account, 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)Date, Collections held for such Purchaser Agent (for the Issuer 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 Issuer benefit of its related Purchasers) pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI Arch Sales or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI Arch Sales (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI Arch Sales (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s aggregate of each Purchasers’ Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set asideFee. On or prior to the last day of each Settlement Period, the Administrator 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) Upon receipt of funds deposited into The Servicer shall distribute the Administration Account pursuant to amounts described (and at the times set forth) in clause (c), the Administrator shall cause such funds to be distributed ) 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 Issuer 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 CapitalCapital 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 Issuer’s 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 first, if Arch Sales or an Affiliate thereof is not the Servicer, to the Issuer 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 CapitalCapital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group and all accrued Fees, second third, to each Purchaser Agent ratably according to the Issuer 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, thirdsecond 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 Servicer 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 payment 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 full clause (b) of all accrued Servicing Feesthe definition thereof or a Termination Event is continuing, and fourthan 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 Issueramounts 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 Indemnified Secured 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 (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 Letter Letters and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuereach 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 Seller, any Affiliate of the Seller, or any setoff or dispute between Originator, the Seller Transferor, the Servicer or any Affiliate of the Seller 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 adjustmentadjustment 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 Section 1(gSections l(j) or (n3(a) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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 fullfull 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 Applicable Law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such 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 Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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, time the Seller shall wish to cause the reduction of the Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased InterestAggregate Capital), the Seller may do so as follows:
(i) the Seller shall give the Administrator Administrator, each Purchaser Agent and the Servicer written notice in substantially the form of Annex C (each, a “Paydown Notice”) (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 the Aggregate Capital greater than $20,000,000 and less than or equal to $50,000,000; 20,000,000 and (CB) at least three five Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $50,000,00020,000,000, in each case such notice Paydown Notice shall have been received by 3:00 p.m. New York City time on such date and shall include 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; and
reduction or (iiiB) the Servicer Seller shall hold such Collections in trust remit to each Purchaser Agent’s account (for the Issuerbenefit of the relevant Purchasers in such Purchaser Agent’s Purchaser Group), for payment in immediately available funds, an amount equal 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 desired amount of such payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.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 IssuerInvestors or the Banks that hold such Receivable Interest and for the Investor Agents, out of the Issuer’s Share percentage of such Collections, firstCollections represented by such Receivable Interest, an amount equal to the Discount accrued through such day for each Portion of Capital Yield, Fees and not previously set asideCollection Agent Fee (and, secondduring the Term Period, an amount equal to the fees set forth Excess Interest in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share respect 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, Seller on behalf of the Issuer, Investors or the remainder of Banks that hold such Receivable Interest the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion percentage of such Collections thatrepresented by such Receivable Interest, together with to the other Collections set aside extent representing a return of Capital, by recomputation of such Receivable Interest pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,Section 2.03;
(iii) if such day is a Termination DayLiquidation Day for any one or more Receivable Interests, set aside, segregate 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 Issuer Investors and/or the entire remainder 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 Issuer’s Share Receivable Interests, the percentage of such Collections represented by such Receivable Interests, and (y) if such day is a Liquidation Day for all of the CollectionsReceivable 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, provided that if amounts are set aside and held in trust on any Liquidation Day occurring prior to the Termination Day of Date, and thereafter prior to the type described in clause next occurring Settlement Date (aCapital) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II 3.02 are satisfied or waived by the AdministratorProgram Agent and the Investor Agents, such previously set-set aside amounts shall shall, to the extent representing a return of Capital, be reinvested in accordance with clause the preceding subsection (ii) on the day of such subsequent satisfaction or waiver of conditions; provided, andfurther, if such day is a Liquidation Day for one or more Receivable Interests solely by reason of the 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 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 (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) both of such amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) and of the amounts that are required to be set aside pursuant to clause subsection (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such dayabove.
(c) The Servicer On each Settlement Date (Yield and Fees), the Collection Agent shall deposit into the Administration 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 2.04(b) that relate to the Receivable Interests owned by such other account designated by Investors and Banks. In addition, during the Administrator)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 solely with respect to Collections held for the Issuer Banks in its Group 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 1.42.04(b); providedprovided 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 if UGI or an Affiliate thereof Seller Report, the Percentage Factor is equal to the ServicerMaximum Percentage Factor. Notwithstanding the preceding sentence, such day is not at any time during the Revolving Period when a Termination Day Non-Pro-Rata Allocation exists and the Administrator has not notified UGI 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 such Affiliate) that the right to retain the portion of the Collections set aside Banks pursuant to clause (b)(iiii) of Section 2.04(b), after giving effect to any deposits to be made on such date pursuant to the two preceding sentences of this Section 2.04(c), 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 2.04(b) that represent relate to the Issuer’s Share Receivable Interests owned by such Investors and Banks. Table 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.Contents
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c)Investor Agent’s Account, the Administrator relevant Investor Agent shall cause such funds to be distributed distribute them as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%Liquidation Day, first to the Issuer 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 Discount Collection Agent Fee payable by the Investors, the Banks and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts Term-Out Banks 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, andits Group;
(ii) if such distribution occurs on a Termination Day Liquidation Day, to 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 Group that hold the relevant Receivable Interest in reduction of Capital and then 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 day when the Purchased Interest exceeds 100%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 Issuer 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 Discount with respect to each Portion of CapitalCollection Agent Fee, second third to the Issuer 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 (orof all Receivable Interests of such Group other than L/C Receivable Interests for which no unpaid Reimbursement Obligation is outstanding, if such day is not a Termination Dayfifth to the L/C Collateral Account, to cash collateralize the Seller’s contingent reimbursement obligations with respect to Letters of Credit, until the amount necessary in the L/C Collateral Account equals the aggregate outstanding Capital of all L/C Receivable Interests, sixth to reduce the Purchased Interest Term-Out Banks in reduction to 100%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), thirdseventh 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 Servicer Collection Agent (if the Collection Agent is the Seller or an Affiliate of the Seller) in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own accountCollection Agent Fee.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
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 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 Issuerbenefit of each Bank, out of the Issuer’s such Bank's Share of the percentage of such CollectionsCollections represented by the Purchased Interest, first, first an amount equal to such Bank's Share of the Discount accrued through such day for each Portion of Capital of such Purchased Interest and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through Fees payable to such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of the Servicing Fee 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, on behalf of the IssuerBanks, the remainder of the Issuer’s Share percentage of such Collections. Such remainder Collections represented by the Purchased Interest, to the extent representing a return on the Capital; such Collections shall be automatically reinvested in Pool Receivables, and in the Related Security, Security and Collections and other proceeds with respect thereto; provided, however, that if and the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside be automatically recomputed pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,Section 1.3;
(iii) if such day is a Termination Day, (A) set asideaside and retain in the Collection Account for each Bank, 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 such Bank's Share of the Collectionspercentage of the Collections represented by the Purchased Interest; providedprovided that, that so long as the Facility Termination Date has not occurred, if any amounts are so set aside and held retained in trust the Collection Account on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, and thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or are waived by the AdministratorAgent and the Majority Banks, such previously set-set aside amounts shall shall, to the extent representing a return on the Capital, be reinvested in accordance with clause the preceding paragraph (ii) on the day of such subsequent satisfaction or waiver of conditions, and (B) set aside and retain in the 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, that so long as the Commitment 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 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: of (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus such amounts, (y) the amounts that are required to be set aside and retained in the Collection Account pursuant to clause paragraph (i), the proviso to clause (ii) above and clause (iii) plus (z) in the Seller’s Share event ▇▇▇▇▇▇▇ (or any Affiliate of Warnaco) is not the Servicing Fee accrued Servicer, all reasonable and unpaid through appropriate out-of-pocket costs and expenses of such dayServicer of servicing, collecting and administering the Pool Receivables.
(c) The Servicer shall deposit into the Administration Account (or such other an account designated by the Administrator)Agent for the benefit of the Banks, on each Settlement Date Date:
(or solely with respect to i) Collections held on deposit in the Collection Account for the Issuer benefit of each Bank pursuant to clause Section 1.4(b)(i) in respect of accrued Discount and accrued and unpaid Fees;
(fii) such other date as set forth in clause (f)(iii) for such payment), Collections held on deposit in the Collection Account for the Issuer benefit of each Bank pursuant to clause Section 1.4(f); and
(b)(iiii) or on any Termination Day, the lesser of (fx) plus the sum of (i) the amount of Collections then held on deposit in the Collection Account for the Issuer benefit of each Bank pursuant to clauses Section 1.4(b)(iii)(A) plus (b)(iiii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile Bank's Percentage 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 Collections then on deposit in the Administration Collection 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 Seller's Share of Collections pursuant to clause (b)(iSection 1.4(b)(iii)(B) and has not retained such amounts (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 clause (c), to the Servicer (payable in arrears on each Settlement DateSection 1.4(b)(i) in payment in full respect of the Issuer’s Share of accrued Servicing Fees so set asideFee, and
(ii) if an amount equal to such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own accountFee.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
Appears in 1 contract
Sources: Parallel Purchase Commitment (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 (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 Issuerbenefit of each Purchaser Group, out of the Issuer’s Share of such Collections, 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, and third, to the extent of such Collections as reduced by any allocations pursuant to clauses first and second, an amount equal to the fees set forth in the Fee Letter Fees accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the 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 the Issuereach Purchaser Group, the remainder of the Issuer’s Share of such Collections. Such remainder shall 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 theretoRights; 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 Issuer 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) on the next Settlement Date in accordance with Section 1.4(c); and second, to the LC Collateral Account; provided, further, that if, as of any date following the date on which any amounts have been set aside due to a shortfall pursuant to 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 that has provided notice (an “Exiting Notice”) to its Purchaser Agent of its refusal, pursuant to Section 1.22, to extend its 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,
(iii) if such day is a Termination DayDay (or a day on which the Commitment of an Exiting Purchaser terminates), set aside, segregate 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 Issuer benefit of each Purchaser Group the entire remainder of such Collections (or, in the Issuercase of an Exiting Purchaser, an amount equal to such Purchaser’s Share ratable share of the Collectionssuch 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 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 conditionsconditions or revocation of Exiting Notice, as the case may be, and
(iv) release to the Seller (subject to Section 1.4(f)) , release to the Seller 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 or reinvested pursuant to clause clauses (i), the proviso to clause (ii) and clause (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’s Share of Seller under this Agreement to the Servicing Fee accrued Purchasers, the LC Bank, the Administrator and unpaid through such dayany other Indemnified Party or Affected Person.
(c) The Servicer shall shall, in accordance with the priorities set forth in Section 1.4(d) below, deposit into the Administration Account each applicable Purchaser Agent’s account (or such other account designated by the Administratorsuch applicable Purchaser or its Purchaser Agent), 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 paymentany Portion of Capital), Collections held for the Issuer each Purchaser pursuant to clause Sections 1.4(b)(i), (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(iiii) and (iii) of and Section 1.41.4(f); provided, that if UGI VWR or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI VWR (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(iSection 1.4(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 asideFee. On or prior to the last day of each Settlement Calculation Period, the Administrator each Purchaser Agent will notify the Servicer by facsimile email communications or other electronic delivery of the amount of Discount accrued with respect to each its Portion of Capital during such Settlement Calculation Period or portion thereof.
(d) Upon receipt 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 deposited into the Administration Account pursuant to clause (c)available therefor, 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 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 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)(iSection 1.4(b)(i) and has not retained such amounts pursuant to clause (cSection 1.4(c), to the Servicer Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of 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 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 Issuer 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 CapitalCapital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, second third to each Purchaser Agent ratably (based on the Issuer 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 Capital (orx) 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), thirdfourth, to the Servicer 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 payment in full of all accrued Servicing Fees, such LC Collateral Account equals (A) the amount necessary to reduce the Adjusted LC Participation Amount to zero ($0) and fourth(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 Issueramounts 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 CapitalCapital (on any day when the Purchased Interest exceeds 100% or any day on which the Commitment of an Exiting Purchaser terminates), Aggregate Discount, fees payable pursuant to the Fee Letter Fees and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuereach Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, 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 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 adjustmentadjustment 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 Section 1(gSections 1(j) or (n3(a) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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 fullrespect 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 clause (iSections 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 its payment for application to specific Receivables; andspecified an applicable Receivable;
(iv) if and to the extent the Administrator Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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, time the Seller shall wish wishes to cause the reduction of the Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex C E (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; (Beach, a “Paydown Notice”) at least two (2) Business Days prior to the date of such reduction for any reduction of Capital greater than $20,000,000 reduction, and less than or equal to $50,000,000; and (C) at least three Business Days prior to the date of each such reduction for any reduction of Capital greater than $50,000,000Paydown Notice shall include, in each case such notice shall have been received by 3:00 p.m. New York City time on such date and 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 Seller shall set aside (or cause to be set aside) and hold such Collections in trust for the Issuerbenefit of each Purchaser ratably according to its Capital, for payment to each such Purchaser (or its related Purchaser Agent for the Administrator benefit of such Purchaser) on the date specified in the Paydown Notice (1) solely with respect or such other date as agreed to any reduction described in subsections (f)(i)(B) or (f)(i)(C) by the next Weekly Settlement Date, or (2Administrator) with respect to any reduction described in subsection (f)(i)(A), Portions of Capital maintained by such other date with at least one (1) Business Day prior written notice to the Administrator of such payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.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 the Issuerbenefit of the Administrator, the Purchasers, the Purchaser Agents and the other Affected Persons and Indemnified Parties, out of the Issuer’s Share of such Collections, first, (w) an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, second, (x) an amount equal to the fees set forth in the Fee Letter all Fees accrued and unpaid through such day, (y) an amount equal to all other payments (including in respect of indemnities, taxes, costs or expenses, but excluding any required payment or repayment of Capital) then owed by the Seller to the Administrator, any Purchaser, any Purchaser Agent and thirdthe other Affected Persons and Indemnified Parties under the Transaction Documents, and (z) to the extent funds are available therefor, an amount equal to the Issuer’s 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 the Issuereach Purchaser Group, the remainder of the Issuer’s Share of such Collections. Such remainder shall 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 theretothereto (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 reinvestReinvest, but shall set aside and hold in trust for the Issuer 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%,
; provided, further, that if the Facility Termination Date has been extended pursuant to Section 1.11 and any Purchaser (iiior its Purchaser Agent) if such day is a Termination Day, set aside, segregate and hold in trust has provided notice (and shall, at the request of an “Exiting Notice”) to the Administrator, segregate in a separate account approved by the AdministratorSeller and the Servicer of such Purchaser’s refusal, pursuant to Section 1.11, to extend its (or its related Committed Purchaser’s) for the Issuer the entire remainder of the Issuer’s Share of the Collections; provided, that if amounts are set aside Commitment hereunder (an “Exiting Purchaser”) then such Collections shall not be Reinvested and shall instead be held in trust on any Termination Day for the benefit 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 Purchaser and applied in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustmentbelow;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
Appears in 1 contract
Sources: Omnibus Amendment (Corpay, 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 Issuer, out of the Issuer’s Share of such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of 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, on behalf of the Issuer, the remainder of the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request benefit of the AdministratorSecured Parties (or, if so requested by the Administrative Agent, solely if an Event of Termination or a Seller Event of Bankruptcy has occurred and is continuing, 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 Mail-Box or a 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 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 Purchase and Sale Agreement and (B) the 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 Unpaid 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 Servicer (or, following its assumption of control of any Collection Account, 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 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, to the Administrative Agent for distribution to each Purchaser and other Purchaser Party (ratably, based on the amount then due and owing), all accrued and unpaid Yield, Fees and Breakage Fees due to such Purchaser and other Purchaser Party for the immediately preceding Yield Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such 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) if such day is a Termination Daythird, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer the entire remainder of the Issuer’s Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such paymentx), Collections held for the Issuer pursuant to clause (b)(iy) or (fz) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuerbelow, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as followsapplicable:
(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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
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 Issuereach Conduit Purchaser, out of the Issuer’s Conduit Purchasers' Share of such Collections, first, an amount equal to the Conduit Purchasers' aggregate amount of Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter Letters accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Conduit 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, on behalf of the IssuerConduit Purchasers, the remainder of the Issuer’s Conduit Purchasers' Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer each Conduit Purchaser (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,
(iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer Conduit Purchasers the entire remainder of the Issuer’s Conduit 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 previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s 's Share of the Servicing Fee accrued and unpaid through such dayday .
(c) The Servicer shall deposit into the Administration Account each Conduit Purchaser's account (or such other account designated by the Administratorsuch Conduit Purchaser), 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)Date, Collections held for the Issuer such Conduit Purchaser pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer such Conduit Purchaser pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI CONSOL Energy or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI CONSOL Energy (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI CONSOL Energy (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Conduit Purchasers' Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set asideFee. On the last day of each Settlement Period, the Administrator Conduit Purchasers will each 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 each Conduit Purchaser 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 such Conduit Purchaser in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each such Conduit Purchaser's 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 such Conduit Purchaser's percentage interest 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 such Conduit Purchaser in payment in full of all accrued Discount with respect to each Portion such Conduit Purchaser's percentage interest of Capital, second to the Issuer such Conduit Purchaser in payment in full of such Conduit Purchaser's percentage interest of Capital (or, if such day is not a Termination Day, such Conduit Purchaser's percentage interest of the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of such Conduit Purchaser's percentage interest of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion Conduit Purchaser's percentage interest of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the IssuerConduit Purchasers, 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 Letters and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the IssuerConduit Purchasers, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(gl(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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 the Issuer any Conduit 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 the Issuer such Conduit Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuersuch Conduit 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, 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 Administrator, the Conduit Agents and the Servicer written notice in the form of Annex C (the "Paydown Notice") (A) at least one two Business Day Days prior to the date of such reduction for any reduction of Capital less than or equal to $20,000,000; 20,000,000 and (B) at least two five (5) Business Days 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 commence20,000,000;
(ii) on 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 IssuerConduit Purchasers, for payment to the Administrator Conduit Agents on (1) solely with respect to any reduction described in subsections (f)(i)(B) or (f)(i)(C) the next Weekly Settlement Date, Date immediately following the current Settlement Period 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 approved by the Administrator of such paymentConduit Agents, and the Capital shall be deemed reduced in the amount to be paid to the Administrator Conduit Agents only when in fact finally so paid; provided, that the amount of any such reduction shall be not less than $1,000,000 300,000 and shall be an integral multiple of $100,000, 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 $100,000.
Appears in 1 contract
Settlement Procedures. (a) The collection Collection of the Pool Receivables shall be administered by the Servicer Servicer, in accordance with the terms of Article VI of this Agreement. The Seller FMCW and FMC (if FMC is not the Servicer) each shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Liquidation Day of which FMCW or FMC has knowledge and current all information relating to the Receivables originated by such Originator which is necessary for the 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 with respect to any Receivable Interest:
(i) 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 IssuerInvestors or the Banks that hold such Receivable Interest, out of the Issuer’s Share percentage of such Collections, firstCollections represented by such Receivable Interest, an amount equal to the Discount Yield and Servicer Fee accrued through such day for each Portion of Capital such Receivable Interest and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of 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 DayLiquidation Day for such Receivable Interest, remit to reinvest with the Seller, Seller on behalf of the Issuer, Investors or the remainder of Banks that hold such Receivable Interest the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion percentage of such Collections thatrepresented by such Receivable Interest, together with to the other Collections set aside extent representing a return of Capital, by recomputation of such Receivable Interest pursuant to this paragraphSection 2.03 (each such transaction relating to a Receivable Interest, shall equal the amount necessary to reduce the Purchased Interest to 100%,a "reinvestment");
(iii) if such day is a Termination DayLiquidation Day for such Receivable Interest, set aside, segregate aside and hold in trust (and shalland, at the request of the AdministratorAgent, segregate in a separate account approved by the Administratorsegregate) for the Issuer Investors or the Banks that hold such Receivable Interest the entire remainder of the Issuer’s Share such percentage of the Collections; provided, that if amounts are set aside and held in trust on any Liquidation Day occurring prior to the Termination Day of the type described in clause (a) of the definition of “Termination Day” andDate, thereafter, and thereafter during such Settlement Period the conditions set forth in Section 2 of Exhibit II 3.02 are satisfied or waived by the AdministratorAgent, such previously set-set aside amounts shall shall, to the extent representing a return of Capital, be reinvested in accordance with clause 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 (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) of such amounts required to be reinvested or in accordance with clause (ii) or the proviso to clause (iii) plus (y) excess of the amounts that are required to be set aside pursuant to clause subsection (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such dayabove.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator)Agent's Account, 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)Date, Collections held for the Issuer Investors or the Banks pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate2.04(b) that relate to the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereofReceivable Interests.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c)Agent's Account, the Administrator Agent shall cause such funds to be distributed distribute them as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%Liquidation Day, first to the Issuer Investors or the Banks that hold the relevant Receivable Interest in payment in full of all accrued Discount Yield 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), then to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of all accrued Servicing Fees so set aside, andServicer Fee.
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%Liquidation Day, first to the Issuer Investors or the Banks that hold the relevant Receivable Interest in payment in full of all accrued Discount with respect to each Portion of CapitalYield, second to such Investors or Banks in reduction to zero of all Capital, third to such Investors, Banks or the Issuer Agent in payment in full of Capital (orany other amounts owed by the Seller hereunder, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, and fourth to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunderFee. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in fullProgram Termination Date, all additional Collections with respect to the Purchased such Receivable Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
Appears in 1 contract
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 IssuerBanks that hold such Receivable Interest, out of the Issuer’s Share percentage of such Collections, firstCollections represented by such Receivable Interest, an amount equal to the Discount Yield, Fees and Servicer Fee accrued through such day for each Portion of Capital such Receivable Interest and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of the Servicing Fee accrued through such day 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, Seller on behalf of the Issuer, Banks on a pro rata basis the remainder of the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion percentage of such Collections that, together with the other Collections represented by such Receivable Interest (net of any amounts set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,Section 2.04(b)(i));
(iii) if such day is a Termination DayLiquidation Day for (x) any one or more (but not all) Receivable Interests, set aside, segregate aside and hold in trust (and shalland, at the request of the AdministratorAgent, segregate in a separate account approved by the Administratorsegregate) for the Issuer Banks, the entire remainder percentage of such Collections represented by such Receivable Interests, or (y) all of the Issuer’s Share Receivable Interests, set aside and hold in trust (and, at the request of the CollectionsAgent, 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, provided that if amounts are set aside and held in trust on any Liquidation Day occurring prior to the Termination Day of Date for the type described in clause applicable Receivable Interest, and thereafter prior to the next occurring Settlement Date (aCapital) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II 3.02 are satisfied or waived by the AdministratorAgent, such previously set-set aside amounts shall shall, to the extent representing a return of Capital, be reinvested in accordance with clause 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 (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) both of such amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) and of the amounts that are required to be set aside pursuant to clause subsection (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such dayabove.
(c) [Intentionally Omitted].
(d) The Servicer shall deposit into the Administration Account Agent’s Account, (or i) on the Settlement Date (Yield and Fees) for each Receivable Interest, Collections held for the Banks with respect to Yield, Fees and other amounts (other than Capital) that relate to such other account designated by the AdministratorReceivable Interest pursuant to Section 2.04(b), (ii) on each Settlement Date (or solely with respect to Capital) following delivery of a Seller Report which shows that the Aggregate Capital exceeded the Collateral Availability (as of the related Reporting Date), all other Collections held for the Issuer Banks 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 1.42.04(b); provided, that if UGI or an Affiliate thereof is the Servicerhowever, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right aggregate amount deposited in the Agent’s Account pursuant to retain this clause (ii) with respect to any Seller Report shall not exceed an amount such that, after giving effect to the portion application of such amount to the reduction of Capital with respect to the Receivable Interests shown in that Seller Report, the Aggregate Capital is equal to the largest multiple of $1,000,000 that does not exceed the Collateral Availability and (iii) on each Settlement Date (Capital) on which Collections set aside are held for the Banks pursuant to clause (b)(iiii) that represent the Issuer’s Share of the Servicing Fee is revokedSection 2.04(b), UGI (or after giving effect to any deposits to be made on such Affiliate) may retain the portion of the Collections set aside date pursuant to the preceding clause (b)(iii) 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 Periodthis Section 2.04(d), the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during all such Settlement Period or portion thereofremaining Collections.
(de) Upon receipt of funds deposited into the Administration Account pursuant to clause (c)Agent’s Account, the Administrator Agent shall cause such funds to be distributed distribute them as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%Liquidation Day, first to the Issuer Banks and to the Agent in ratable payment in full of all accrued Yield and Fees and then to the Servicer 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, Fee; and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%Liquidation Day, first to the Issuer Banks and to the Agent in ratable payment in full of all accrued Discount with respect to each Portion of CapitalYield and Fees, second to the Issuer Banks ratably in reduction to zero of all Capital, third to the Banks or the Agent in payment in full of Capital (orany other amounts owed by the Seller hereunder or under any other Transaction Document, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, and fourth to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if Servicer Fee. After the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, DiscountYield, fees payable pursuant to Fees and the Servicer Fee Letter and Servicing Fees with respect to the Purchased Interestall Receivable Interests, and any other amounts payable by the Seller and to the Banks or the Agent or the Servicer hereunder or under any other Transaction Document, including, without limitation, any reimbursement obligations of the Seller with respect to any indemnity provided by the IssuerAgent under any Deposit Account Agreement (such aggregate amount, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full“Termination Amount”), all additional Collections with respect to the Purchased Interest Receivable Interests shall be paid to the Seller for its own account.
(ef) For the purposes of this Section 1.42.04:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced becomes (in whole or adjusted as in part) 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 ObligorDiluted Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustmentDiluted Receivable;
(ii) if on any day any of the representations or warranties contained in Section 1(g4.01(h) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not no longer true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause 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 Receivable 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 Administrator Agent or the Issuer Banks 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 on its behalf 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 Agent or the IssuerBanks, 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.
(fg) If at any timeOn the Facility Termination Date, the Seller shall wish pay to cause the reduction Agent for its account and the account of the Capital Banks and the Servicer the Termination Amount.
(but not h) All amounts payable by the Seller or the Servicer under this Agreement to commence the liquidation, Agent for its own account or reduction to zero, for the account of the entire Capital of Banks shall be paid in Dollars. The purchase price for Receivable Interests and all other amounts payable by the Purchased Interest), the Seller may do so as follows:Banks under this Agreement shall be payable in Dollars.
(i) the Seller All payments in respect of Yield and Capital (x) shall give the Administrator and the Servicer written notice in the form of Annex C (A) at least one Business Day prior be apportioned among all Receivable Interests to the date of which 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; payments relate and (Cy) 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 in trust for the 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 payment, and the Capital shall be deemed reduced made to each Bank on a pro rata basis in the amount to be paid to the Administrator only when in fact finally so paid; provided, that the amount of any accordance with such reduction shall be not less than $1,000,000 and shall be an integral multiple of $100,000Bank’s Percentage.
Appears in 1 contract
Sources: Receivables Purchase Agreement (AbitibiBowater Inc.)
Settlement Procedures. (a) The collection Collection of the Pool Receivables shall be administered by the Servicer Servicer, in accordance with the terms of Article VI of this Agreement. The Seller Transferor shall provide to the Servicer (if other than the Transferor) on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of each Receivable Interest and the Purchased InterestDeferred Consideration.
(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 it, hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer, out of the Issuer’s Share of all such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of 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, on behalf of the Issuer, the remainder of the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request benefit of the AdministratorCo-Acquirers and remit such collections on a monthly basis on each Settlement Date as hereafter provided in this Section 2.04. In the event that (i) an Event of Termination or an Incipient Primary Insolvency Event occurs and is continuing, segregate in or (ii) two or more of Fitch, ▇▇▇▇▇’▇ and S&P rate NBCUniversal’s long-term unsecured non-credit-enhanced debt below investment grade (i.e., below Baa3 or BBB-) or withdraw or suspend such debt rating (each of the foregoing, a separate account approved “Daily Remittance Event”), the Servicer shall be required to remit all Collections received by NBCUniversal and the other Originators on a daily basis to a new, dedicated bank account, established by the AdministratorProgram Agent for the benefit of the Co-Acquirers prior to or promptly following a Daily Remittance Event (such account, the “Program Agent’s Account”), immediately upon notice to the Servicer, which notice shall include the details of the Program Agent’s Account and shall be given by the Program Agent promptly following the later of (A) a portion the establishment of such Collections account and (B) the Program Agent’s knowledge of the occurrence of a continuing Daily Remittance Event; provided that, together with if (x) proceedings giving rise to any such Incipient Primary Insolvency Event are successfully stayed and discharged prior to the other Collections set aside pursuant maturation of a Primary Insolvency Event, or (y) subsequent to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,
(iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at the request occurrence 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 circumstances described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day above, two or more of such subsequent satisfaction Fitch, ▇▇▇▇▇’▇ and S&P rate NBCUniversal’s long-term unsecured non-credit-enhanced debt investment grade or waiver of conditionshigher (i.e., 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) Baa3 or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (iBBB- or higher), then the proviso obligation to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through remit collections on a daily basis arising from such dayDaily Remittance Event shall cease.
(c) The On each Settlement Date, the Servicer shall deposit into the Administration Account (or such other account designated the Program Agent, to the extent that Collections have been remitted to the Program Agent’s Account pursuant to Section 2.04(b)) shall remit Collections held by the Administrator), on each Settlement Date Servicer (or solely the Program Agent, as applicable) with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such most recently ended 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 first, to the Program Agent and each Investor Agent in payment of any amounts owed by the Transferor pursuant to Section 11.04(a) in connection with out-of-pocket costs and expenses incurred in the enforcement of this Agreement and the Purchased Interest does not exceed 100%other Transaction Documents;
(ii) second, first to the Issuer Servicer, the Servicer Fee for such Settlement Period;
(iii) third, to each Investor Agent, for itself and the Co-Acquirers in its Group, in payment in full of all accrued Discount Yield and fees 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 (cany related accrued Liquidation Fee), as reported to the Servicer (payable in arrears on each by such Investor Agent no later than the third Business Day preceding such Settlement Date;
(iv) in payment in full fourth, to each Investor Agent, pro rata (based on the aggregate outstanding Investment of the Issuer’s Share Co-Acquirers in its Group), for the Co-Acquirers in its Group, (i) during a Partial Amortization Period, the excess of accrued Servicing Fees so set asidethe Total Investment over the Total Investment Limit, and
and (ii) if such distribution occurs on a Termination Day or on a day when following the Purchased Interest exceeds 100%occurrence of the Program Amortization Event, first all remaining Collections, for application 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 Total Investment until Total Investment has been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full;
(v) fifth, to the IssuerProgram Agent and the Investor Agents, 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 Transferor hereunder which have not been paid pursuant to the Fee Letter and Servicing Fees with respect clauses (i) through (iv) above; and
(vi) sixth, to the Purchased InterestTransferor, and any other amounts payable by on account of the Seller Deferred Consideration.
(d) Funds that are to be remitted to an Investor Agent pursuant to Section 2.04(c) shall be remitted to the Investor Agent’s Account of such Investor Agent. Upon receipt of funds deposited into an Investor Agent’s Account, the applicable Investor Agent shall distribute such funds to itself and the Servicer to Co-Acquirers in its Group in the Issuersame order of priority as clauses (iii), 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(iv) and (v) of Section 2.04(c).
(e) For the purposes of this Section 1.42.04:
(i) if on any day on which the Outstanding Receivable Balance of any Pool outstanding Eligible 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 Obligora Dilution, the Seller Transferor shall be deemed to have received on the day of such day reduction a Collection of such Pool Receivable in the amount of such reduction or adjustmentand the Transferor shall compensate the Program Agent, on behalf of the Co-Acquirers, for such reduction in the balance of such Eligible Receivable as herein provided;
(ii) if on any day any the Transferor has represented that a Receivable was an Eligible Receivable as of the representations or warranties in Section 1(g) or (n) date of Exhibit IIItransfer and assignment to the Program Agent, or Section 2on behalf of the Co-Acquirers, 3 or 4 of Exhibit VI is and such representation was not true with and correct in any material respect as of the date made, upon the earlier of (x) Knowledge thereof by a Responsible Officer of the Transferor and (y) receipt by Transferor of notice thereof given by the Program Agent, on behalf of the Co-Acquirers, then the Transferor shall be required to accept a reassignment of such Receivable in exchange for payment of the Receivable Balance of such Receivable. Not later than the first Settlement Date after Transferor is required pursuant to this Section 2.04(e)(ii) to accept a reassignment of such Receivable, Transferor shall transfer to Servicer, on behalf of the Program Agent (or, if a Daily Remittance Event has occurred, directly to the Program Agent’s Account), immediately available funds in the amount of the Receivable Balance of such Receivable. Transferor shall be entitled to any Pool Receivablepayments by Obligors in respect of a Receivable reassigned pursuant to this Section 2.04(e)(ii) from and after the date the Program Agent, on behalf of the Co-Acquirers, has received the full payment required pursuant to the immediately preceding sentence. Upon the payment, if any, required to be made to the Program Agent, for the benefit of the Co-Acquirers, as provided in this Section 2.04(e)(ii), the Seller Program Agent, on behalf of the Co-Acquirers, shall automatically and without further action be deemed to have transfer, assign, set over and otherwise convey to Transferor, without recourse, representation or warranty, all the right, title and interest of the Program Agent, for the benefit of the Co-Acquirers, in and to such Receivable, all moneys due or to become due and all amounts received with respect thereto and all proceeds thereof. Program Agent, on behalf of the Co-Acquirers, shall execute such day a Collection documents and instruments of transfer or assignment and take such other actions as shall reasonably be requested by Transferor to effect the conveyance of such Pool Receivable in fullpursuant to this Section 2.04(e)(ii). The obligation of Transferor to make the payments, if any, required to be made pursuant to this Section 2.04(e)(ii) shall be the sole remedy respecting any event giving rise to such obligation available to Program Agent, on behalf of the Co-Acquirers, or any assignee of its rights under this Agreement; provided that, if the Transferor fails to perform its obligations under this Section 2.04(e)(ii), the Agents may exercise any and all rights and remedies which they may have under this Agreement and all other rights and remedies provided hereunder or under applicable law, which rights and remedies shall be cumulative;
(iii) except as provided in any payment required to be made by the Transferor pursuant to the immediately preceding clause (iii) or (ii)shall be made on the next occurring Settlement Date, or as otherwise required and may be made by applicable law or offset by the relevant ContractProgram Agent, all Collections received from an Obligor in its sole discretion, on behalf of the Co-Acquirers, against payment of any Receivable shall be applied to consideration, including any Deferred Consideration, payable by the Receivables of such Obligor in Co-Acquirers for 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 Program Agent or any of the Investor Agents, Conduits or the Issuer Banks 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 on its behalf hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather and never to have been retained paid by the Seller Obligor and, accordingly, the Administrator Transferor shall be required to remit such amount to the Program Agent or such Investor Agent, Conduit or the IssuerBank, as the case may be, shall have a claim against if and to the Seller for extent the Transferor receives any distribution from or on behalf of such amountObligor in respect thereof, payable when and to the extent that any such distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
Within five Business Days after (i) the Seller shall give the Administrator and the Servicer written notice end of each Fixed Period in the form respect of Annex C (A) at least one Business Day prior which Yield is computed by reference to the date Conduit Rate, each Investor Agent shall furnish the Transferor, and (ii) the end of such reduction for any reduction each Fixed Period in respect of Capital less than or equal to $20,000,000; (B) at least two Business Days prior which Yield is computed by reference 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 Alternate Base Rate, the date of such reduction for any reduction of Capital greater than $50,000,000applicable Investor Agent shall furnish Transferor, in each case such notice shall have been received by 3:00 p.m. New York City time on such date and shall include with an invoice setting forth the amount of the accrued and unpaid Yield and Fees for 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 Issuer, for payment to the Administrator on (1) solely Fixed Period with respect to any reduction described the Investment of the Co-Acquirers 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000Investor Agent’s Group.
Appears in 1 contract
Sources: Receivables Acquisition Agreement (NBCUniversal Media, 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 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 on its books and hold in trust (and shalland, at the request of the AdministratorAgent on any Liquidation Day with respect to such Receivable Interest (but not prior to such request), segregate in a separate into an account approved by acceptable to the AdministratorAgent) for the IssuerInvestors or the Banks that hold such Receivable Interest, out of the Issuer’s Share percentage of such Collections, firstCollections represented by such Receivable Interest, an amount equal to the Discount Yield, Fees and Collection Agent Fee accrued through such day for each Portion of Capital such Receivable Interest and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of the Servicing Fee accrued through such day 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, Seller on behalf of the Issuer, Investors or the remainder of Banks that hold such Receivable Interest the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion percentage of such Collections thatrepresented by such Receivable Interest, together with to the other Collections set aside extent representing a return of Capital, by recomputation of such Receivable Interest pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,Section 2.03;
(iii) if such day is a Termination DayLiquidation Day for any one or more Receivable Interests, set aside, segregate aside on its books and hold in trust (and shalland, at the request of the AdministratorAgent, segregate in a separate account approved by the Administratorsegregate) for the Issuer Investors or the entire remainder Banks that hold such Receivable Interests (x) if such day is a Liquidation Day for less than all of the Issuer’s Share Receivable Interests, the percentage of such Collections represented by such Receivable Interests, and (y) if such day is a Liquidation Day for all of the CollectionsReceivable Interests, all of the remaining Collections (but not in excess of the Capital of such Receivable Interests); provided, provided that if amounts are set aside and held in trust on any Liquidation Day occurring prior to the Termination Day of Date, and thereafter prior to the type described in clause (a) of the definition of “Termination Day” and, thereafter, Settlement Date for such Fixed Period the conditions set forth in Section 2 of Exhibit II 3.02 are satisfied or waived by the AdministratorAgent, such previously set-set aside amounts shall shall, to the extent representing a return of Capital, be reinvested in accordance with clause 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 (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) of both such amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) and of the amounts that are required to be set aside pursuant to clause subsection (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such dayabove.
(c) The Servicer Collection Agent shall deposit into the Administration Account (or such other account designated by the Administrator)Agent's Account, on each the 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)each Receivable Interest, Collections held for the Issuer Investors or the Banks that relate to such Receivable Interest pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof2.04(b).
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c)Agent's Account, the Administrator Agent shall cause such funds to be distributed distribute them as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%Liquidation Day, first to the Issuer Investors or the Banks that hold the relevant Receivable Interest and to the Agent in payment in full of all accrued Discount Yield and fees (other than Servicing Fees) with respect to each Portion of Capital, 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), then to the Servicer (payable in arrears on each Settlement Date) Collection Agent in payment in full of the Issuer’s Share of all accrued Servicing Fees so set aside, andCollection Agent Fee.
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%Liquidation Day, first to the Issuer Investors or the Banks that hold the relevant Receivable Interest and to the Agent in payment in full of all accrued Discount with respect to each Portion of CapitalYield and Fees, second to such Investors or Banks in reduction to zero of all Capital, third to such Investors, Banks or the Issuer Agent in payment in full of Capital (orany other amounts owed by the Seller hereunder, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, and fourth to the Servicer Collection Agent in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunderCollection Agent Fee. After the Capital, DiscountYield, fees payable pursuant to the Fees and Collection Agent Fee Letter and Servicing Fees with respect to the Purchased a Receivable Interest, and any other amounts payable by the Seller and the Servicer to the IssuerInvestors, the Administrator Banks or any other Indemnified Party or Affected Person the Agent hereunder, have been paid in fullfull and any contingent obligations of the Agent under any Account Agreement, Lock-Box Agreement or Bank Direction Agreement have been released, all additional Collections with respect to the Purchased such Receivable Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.42.04:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced becomes (in whole or adjusted as in part) 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 ObligorDiluted Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustmentDiluted Receivable;
(ii) if on any day any of the representations or warranties contained in Section 1(g4.01(h) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not no longer true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause subsection (i) or (ii) of this Section 2.04(e), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable 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 Administrator Agent, the Investors or the Issuer Banks 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 on its behalf 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 Agent, the Investors or the IssuerBanks, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Dal Tile International 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 Issuerbenefit of each Purchaser Group, out of the Issuer’s Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s aggregate 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 the Issuereach Purchaser Group, the remainder of the Issuer’s Share of such Collections. Such remainder shall 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; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers) on the next Settlement Date in accordance with Section 1.4(c); provided, further, that (x) in the case of any Purchaser that is a Conduit Purchaser, if such Conduit Purchaser has provided notice (a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Conduit Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser with respect to which the Purchaser Termination Date has occurred (an “Exiting Purchaser”) then in either case (x) or (y), above, such Collections shall not be reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii), below.
(iii) if such day is a Termination DayDay (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 Issuer benefit of each Purchaser Group the entire remainder of the IssuerCollections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser an amount equal to such Declining Conduit Purchaser’s Share 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 Collectionsprovision 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 type described in clause (aPurchaser Termination Date with respect to any Purchaser) of the definition of “Termination Day” 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 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 satisfaction, cure or waiver of conditionsconditions 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 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 dayday 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 shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into the Administration Account each applicable Purchaser Agent’s account (or such other account designated by the Administratorsuch applicable Purchaser or its Purchaser Agent), on each Settlement Date (or solely in the case of Collections held for each Purchaser with respect to Collections held for the Issuer pursuant to clause (fsuch Purchaser’s Portion(s) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer of Capital pursuant to clause (b)(i) or paragraph (f) ), plus the amount of Collections then held for the Issuer related Purchasers pursuant to clauses (b)(ii) and (iii) of this Section 1.4; provided, that if UGI Triumph or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI Triumph (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI Triumph (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s aggregate Purchasers’ 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 thereofFee.
(d) Upon receipt of funds deposited into The Servicer shall distribute the Administration Account pursuant to clause amounts described (cand at the times set forth) in 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%Day, first to each Purchaser Agent ratably according to the Issuer 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 Fees (other than Servicing Fees) with respect to each Portion of CapitalCapital 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 clause paragraph (c), to the Servicer Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the Issuer’s 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%Day, first if Triumph or an Affiliate thereof is not the Servicer, to the Issuer 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 CapitalCapital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, second third to each Purchaser Agent ratably according to the Issuer 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%), third, ; 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 Servicer in payment in full of all accrued Servicing FeesPurchasers within its Purchaser Group ratably according to Discount and Capital, and 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 Issueramounts 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 owed then due and payable thereto by the Seller hereunderor 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 the 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 the Issuereach 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 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 adjustmentadjustment 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 Section 1(gSections 1(j) or (n3(a) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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;
full and shall immediately pay any and all such amounts to a Lock-Box Account (iiior as otherwise directed by the Administrator at such time) except as provided in 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”), or ;
(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 Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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, time the Seller shall wish to cause the reduction of the Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex C E (each, a “Paydown Notice”) (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 the Aggregate Capital greater than $20,000,000 and less than or equal to $50,000,000; 20,000,000 (or such greater amount as agreed to by the Administrator and the Majority Purchaser Agents) and (CB) at least three five Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $50,000,00020,000,000, in and each case such notice Paydown Notice shall have been received by 3:00 p.m. New York City time on such date and shall include 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 Issuerbenefit of each Purchaser ratably according to its Capital, for payment to each such Purchaser (or its related Purchaser Agent for the Administrator benefit of such Purchaser) on (1) solely with respect to any reduction described in subsections (f)(i)(B) or (f)(i)(C) the next Weekly Settlement Date, Date (or (2such other date as agreed to by the Administrator) with respect to any reduction described in subsection (f)(i)(A), Portions of Capital maintained by such other date with at least one (1) Business Day prior written notice to Purchaser immediately following the Administrator of such paymentrelated 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 Administrator benefit of such Purchaser) 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.that:
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 Since Borrowers anticipate requesting borrowings of Revolving Loans on a regular basis, in order to administer the Revolving Loans in an efficient manner and hold in trust (to minimize the transfer of funds between Agent and shallLenders, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer, out of the Issuer’s Share of such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such dayLenders hereby instruct Agent, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of the Servicing Fee accrued through such day and not previously set aside,
Agent may (ii) subject to Section 1.4(f), if such day but is not a Termination Day, remit to the Sellerobligated to) (A) make available, on behalf of the IssuerLenders, the remainder full amount of all Revolving Loans requested by Borrowers not to exceed $3,000,000 in the aggregate at any one time outstanding without giving each Lender prior notice of the Issuer’s Share proposed borrowing, of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, Lender's Pro Rata Share thereof and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved matters covered by the Administrator) a portion Notice 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%,
Borrowing and (iiiB) if Agent has made any 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 available as provided in clause (a) A), upon repayment of Revolving Loans by Borrowers, apply such amounts repaid directly to the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived amounts made available by the Administrator, such previously set-aside amounts shall be reinvested Agent in accordance with clause (iiA) on the day of and not yet settled as described below; PROVIDED, THAT, Agent shall not advance funds as described in clause (A) above if Agent has actually received prior to such subsequent satisfaction borrowing (1) an officer's certificate from Administrative Borrower or waiver of conditions, and
(iv) release any other Borrower pursuant to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested and in accordance with clause Section 9.09 that a Default or Event of Default exists or has occurred and is continuing or (ii2) or a Notice of Borrowing from any Borrower wherein the proviso certification provided therein states that the conditions 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 making of the Servicing Fee accrued and unpaid through such day.
(c) The Servicer shall deposit into the Administration Account (requested Revolving Loans have not been satisfied or such other account designated waived in writing 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) Agent or (f3) plus a written notice from the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) Required Lenders that the right conditions to retain the portion such borrowing have not been satisfied or waived in writing by Agent, which officer's certificate, Notice of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revokedBorrowing or notice, 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 Periodcase, 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 thereofshall not have been rescinded.
(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 If Agent advances Revolving Loans on a Termination Day or on a day when the Purchased Interest exceeds 100%behalf of Lenders, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (id)(i) or (ii)above, or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor amount of any Receivable outstanding Revolving Loans and each Lender's Pro Rata Share shall be applied to computed weekly rather than daily and shall be adjusted upward or downward on the Receivables of such Obligor in the order basis of the age amount of such Receivables, starting with outstanding Revolving Loans as of 5:00 P.M. on the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the Seller shall give the Administrator and the Servicer written notice in the form of Annex C (A) at least one Business Day prior to immediately preceding the date of each computation; PROVIDED, THAT, Agent retains the absolute right at any time or from time to time to make the aforedescribed adjustments at intervals more frequently than weekly. Agent shall deliver to each Lender after the end of each week, or such reduction lesser period or periods as Agent shall determine, a summary statement of the amount of outstanding Revolving Loans for such period (such week or lesser period or periods being hereafter referred to as a "Settlement Period"). Each Lender shall make the transfers described in the next succeeding sentence no later than 3:00 P.M. on the third day after a summary statement is sent by Agent. If in any reduction Settlement Period, the amount of Capital less a Lender's Pro Rata Share of the Revolving Loans is in excess of the amount of Revolving Loans actually funded by such Lender, such Lender shall forthwith (but in no event later than or equal the time set forth in the next preceding sentence) transfer 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, Agent by wire transfer in each case such notice shall have been received by 3:00 p.m. New York City time on such date and shall include immediately available funds the amount of such proposed reduction and the proposed date on which such reduction will commence;
(ii) excess; and, on the proposed date other hand, if the amount of a Lender's Pro Rata Share of the commencement Revolving Loans in any Settlement Period is less than the amount of Revolving Loans actually funded by such Lender, Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of such reduction difference. The obligation of each Lender to transfer such funds shall be irrevocable and on unconditional and without recourse to or warranty by Agent. Each of Agent and Lenders agree to mark their respective books and records at the end of each day thereafter, Settlemen▇ ▇▇riod to show at all times the Servicer shall cause Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired dollar amount of reduction; and
(iii) their respective Pro Rata Shares of the Servicer shall hold such Collections in trust for the Issuer, for payment outstanding Revolving Loans. Since Agent on behalf of Lenders may be advancing and/or may be repaid Revolving Loans prior to the Administrator on (1) solely time when Lenders will actually advance and/or be repaid Revolving Loans, interest 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 payment, and the Capital Revolving Loans shall be deemed reduced allocated by Agent to each Lender (including Agent in the amount to be paid to the Administrator only when its capacity as a Lender) in fact finally so paid; provided, that accordance with the amount of any such reduction shall be not less than $1,000,000 Revolving Loans actually advanced by and repaid to each Lender (including Agent in its capacity as a Lender) during each Settlement Period and shall be an integral multiple of $100,000accrue from and including the date such Revolving Loans are advanced by Agent to but excluding the date such Revolving Loans are repaid by Borrowers or actually settled by the applicable Lender as described in this Section 2.02(d).
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 Issuerbenefit of each Purchaser Group, out of the Issuer’s Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter Fees accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s 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 the Issuereach Purchaser Group, the remainder of the Issuer’s Share of such Collections. Such remainder shall may, 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 theretoRights; 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 Issuer 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) on the next Settlement Date in accordance with Section 1.4(c),
(iii) if such day is a Termination Day, set aside, segregate aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer benefit of each Purchaser Group the entire remainder of the Issuer’s Share of the such Collections; 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” and, thereafter, the conditions set forth in Section 2 3 of Exhibit II are satisfied or waived by the AdministratorAdministrator and the Majority Purchaser Agents, such previously set-aside amounts shall be reinvested in accordance with clause (ii) remitted to the Seller on the day of such subsequent satisfaction or waiver of conditions, as the case may be, and
(iv) release to the Seller (subject to Section 1.4(f)) , release to the Seller 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 clauses (i), the proviso to clause (ii) and clause (iii) above plus (zy) the Seller’s Share of the Servicing Fee accrued and unpaid through such dayday 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 shall, in accordance with the priorities set forth in Section 1.4(d) below, deposit into the Administration Account each applicable Purchaser Agent’s account (or such other account designated by the Administratorsuch applicable Purchaser or its Purchaser Agent), 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 paymentany Portion of Capital), Collections held for the Issuer each Purchaser pursuant to clause Sections 1.4(b)(i), (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(iiii) and (iii) of and Section 1.41.4(f); provided, that if UGI ▇▇▇▇▇ or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI ▇▇▇▇▇ (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI ▇▇▇▇▇ (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(iSection 1.4(b)(i) that represents the Issuer’s aggregate of each Purchasers’ Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set asideFee. On or prior to the last day of each Settlement Yield Period, the Administrator will notify the Servicer by facsimile email communication of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Yield Period or portion thereof.
(d) Upon receipt of funds deposited into The Servicer shall distribute the Administration Account pursuant to clause amounts described (cand at the times set forth) in 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 Day, and on which the Purchased Interest does not exceed 100%, first to each Purchaser Agent ratably (based on the Issuer 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 (other than Servicing Fees) Fees with respect to each Portion of CapitalCapital 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 clause (b)(iSection 1.4(b)(i) and has not retained such amounts pursuant to clause (cSection 1.4(c), to the Servicer Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the Issuer’s aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day Day, or on a day when the Purchased Interest exceeds 100%, first if ▇▇▇▇▇ or an Affiliate thereof is not the Servicer, to the Issuer 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 CapitalCapital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, second third to each Purchaser Agent ratably (based on the Issuer 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 Capital (orx) if such day is a Termination Day, each Purchaser’s Capital, or (y) 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 clause (ii) to the Purchasers within its Purchaser Group ratably (based on Discount and Fees and Capital, respectively), thirdfourth, to the Servicer 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 payment 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 full clause (b) of all accrued Servicing Feesthe definition thereof or if a Termination Event is continuing, and fourthan 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 Issueramounts 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 hereunderor 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 CapitalCapital (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 payable pursuant to the Fee Letter Fees and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuereach Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, 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 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 adjustmentadjustment 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 Section 1(gSections 1(j) or (n3(a) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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 fullrespect 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 clause (iSections 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; and;
(iv) if and to the extent the Administrator Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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, time the Seller shall wish wishes to cause the reduction of the Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator Administrator, each Purchaser Agent and the Servicer written notice substantially in the form of Annex C E with any changes as have been approved by the parties thereto (each, a “Paydown Notice”) (A) at least one Business Day prior to 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 $20,000,000; 25,000,000 (or such greater amount as agreed to by the Administrator and the Majority Purchaser Agents) and (B) at least two five (5) Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $20,000,000 25,000,000, and less than or equal to $50,000,000; and (C) at least three Business Days prior to the date of each such reduction for any reduction of Capital greater than $50,000,000Paydown Notice shall include, in each case such notice shall have been received by 3:00 p.m. New York City time on such date and 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 Issuerbenefit of each Purchaser, for payment to each such Purchaser (or its related Purchaser Agent for the Administrator benefit of such Purchaser) on (1) solely with respect to any reduction described in subsections (f)(i)(B) or (f)(i)(C) the next Weekly Settlement Date, Date (or (2such other date as agreed to by the Administrator) with respect to any reduction described in subsection (f)(i)(A), Portions of Capital maintained by such other date with at least one (1) Business Day prior written notice to Purchaser immediately following the Administrator of such paymentrelated 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 Administrator benefit of such Purchaser) only when in fact finally so paid; provided, that that:
(A) the amount of any such reduction shall not be not less than $1,000,000 100,000 for each Purchaser Group and shall be an integral multiple of $100,000, and the sum of the Aggregate Capital and the Adjusted LC Participation Amount after giving effect to such reduction shall not be less than the Minimum Usage Amount; 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 (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 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 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. With respect to such Collections on such day, the Servicer shall:
(i) transfer from the Collection Account to the Liquidation Account, set aside and hold in trust (and shall, at for the request benefit of the Administrator, segregate in a separate account approved by the Administrator) for the IssuerPurchaser, out of the Issuer’s Share percentage of such CollectionsCollections represented by the Participation, first, FIRST an amount equal to the Discount accrued through such day for each Portion of Capital Investment and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued aside and unpaid through such day, and thirdSECOND, to the extent funds are available therefor, an amount equal to the Issuer’s Share of Servicing Fee (if the Servicing Originator or any Affiliate thereof is not the Servicer), the Commitment Fee and the Program Fee accrued through such day for the Participation and not previously set aside,; and
(ii) subject to Section SECTION 1.4(f), if such day is not a Termination Day, remit to the Seller, on behalf of the IssuerPurchaser, the remainder of the Issuer’s Share percentage of such Collections. Such remainder , represented by the Participation, to the extent representing a return on the Investment; such Collections shall be automatically reinvested in Pool Receivables, and in the Related Security, Security and Collections and other proceeds with respect thereto, and the Participation shall 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 Net Receivables Pool Balance on such day, 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 Issuer (and shall, at the request benefit of the Administrator, segregate Purchaser in a separate account approved by the Administratoraccordance with PARAGRAPH (iii) 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%,below;
(iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at A) transfer to the request of the Administrator, segregate in a separate account approved by the Administrator) Liquidation Account for the Issuer Purchaser the entire remainder of the Issuer’s Share percentage of the CollectionsCollections represented by the Participation; provided, PROVIDED that so long as the Facility Termination Date has not occurred if any amounts are set aside and held in trust so transferred to the Liquidation Account on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, and thereafter, the conditions set forth in Section SECTION 2 of Exhibit EXHIBIT II are satisfied or are waived by the AdministratorAgent, such previously set-set aside amounts shall shall, to the extent representing a return on the Investment, be reinvested in accordance with clause 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 Facility 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 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 SECTION 1.4(f)) for its own account any Collections in excess of: of (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus such amounts, (y) the amounts that are required to be set aside transferred to the Liquidation Account pursuant to clause PARAGRAPH (i), the proviso to clause (iiI) above and clause (iii) plus (z) in the Seller’s Share 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 Servicing Fee accrued and unpaid through such dayPool Receivables.
(c) The Servicer shall deposit into the Administration Purchaser's Account (or such other account designated by the AdministratorAgent), on the last day of each Settlement Date Period relating to a Portion of Investment:
(or solely 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 and Commitment Fees with respect to such Portion of Investment;
(ii) Collections held on deposit in the Liquidation Account for the Issuer benefit of the Purchaser pursuant to clause SECTION 1.4(f) with respect to such Portion of Investment; and
(fiii) such other date as set forth in clause the lesser of (f)(iiix) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held on deposit in the Liquidation Account for the Issuer benefit of the Purchaser pursuant to clauses (b)(iiSECTION 1.4(b)(iii) and (iiiy) such Portion of Section 1.4; provided, that if UGI or an Affiliate thereof is Investment. The Servicer shall deposit to its own account from Collections held on deposit in the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such AffiliateLiquidation Account pursuant to SECTION 1.4(b)(i) that the right to retain the portion in respect of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement PeriodFee, the Administrator will notify the Servicer by facsimile of the an amount of Discount equal to such accrued with respect to each Portion of Capital during such Settlement Period or portion thereofServicing Fee.
(d) Upon receipt of funds deposited into the Administration Purchaser's Account pursuant to clause (c)SECTION 1.4(c) with respect to any Portion of Investment, the Administrator 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%Day, first FIRST to the Issuer Purchaser in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each such Portion of CapitalInvestment, SECOND, to the Purchaser in payment of accrued and unpaid Program Fees and Commitment Fees, and secondTHIRD, 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 (cSECTION 1.4(b)(i), to the Servicer (payable in arrears on the last day of each Settlement Datecalendar month) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, aside with respect to such Portion of Investment; and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%Day, first FIRST to the Issuer Purchaser in payment in full of all accrued Discount with respect to each such Portion of CapitalInvestment, second SECOND to the Issuer Purchaser in payment of accrued and unpaid Program Fees and Commitment Fees, THIRD, to the Purchaser in payment in full of Capital (orsuch Portion of Investment, FOURTH, if such day SDW or any of its Affiliates is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), thirdServicer, to the Servicer in payment in full of all accrued Servicing FeesFees with respect to such Portion of Investment, and fourthFIFTH, if the Capital Investment and accrued Discount with respect to each Portion of Capital Investment have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than the Seller) have been paid in full, to the IssuerPurchaser, the Administrator Agent and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunderhereunder and then to the Servicer (if the Servicer is the Seller) in payment in full of all accrued Servicing Fees. After the CapitalInvestment, DiscountProgram Fees, fees payable pursuant to the Fee Letter Discount and Servicing Fees with respect to the Purchased InterestParticipation, and any other amounts payable by the Seller and the Servicer to the IssuerPurchaser, the Administrator Agent or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest Participation shall be paid to the Seller for its own account.
(e) For the purposes of this Section 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 revisiondiscount, cancellation, allowance, rebate, discount rebate or other adjustment made by the Originator, Seller or any Affiliate of the SellerServicer, or any setoff or dispute between the Seller Seller, Originator or any Affiliate of the Seller 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(gPARAGRAPHS (h) or (no) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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 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 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 Agent or the Issuer 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 the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator Agent or the IssuerPurchaser, 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, time the Seller shall wish to cause the reduction of the Capital a Portion of Investment (but not to commence the liquidation, or reduction to zero, of the entire Capital Investment of the Purchased InterestParticipation), the Seller may do so as follows:
(i) the Seller shall give the Administrator and the Servicer Agent at least five Business Days' prior written notice in the form of Annex C thereof (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 including 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 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 trust the Liquidation Account for the Issuerbenefit of the Purchaser, for payment to the Administrator Agent on (1) solely with respect the last day of the current Settlement Period relating 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 Portion of such paymentInvestment, and the Capital applicable Portion of Investment shall be deemed reduced in the amount to be paid to the Administrator Agent only when in fact finally so paid; provided, that provided that,
A. the amount of any such reduction shall be not less than $1,000,000 and shall be an integral multiple of $100,000.500,000, and the entire Investment of the Participation after giving effect to such reduction shall be not less than $1,000,000,
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 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
Appears in 1 contract
Sources: Receivables Purchase Agreement (Warren S D Co /Pa/)
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 Issuerbenefit of each Purchaser Group, out of the Issuer’s Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital Investment and not previously set aside, second, an amount equal to the fees set forth in the each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issueraggregate of each 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 the Issuereach Purchaser Group, the remainder of the Issuer’s Share of such Collections. Such remainder shall shall, to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s Investment, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer 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%,; provided, further, that if the Facility Termination Date has been extended pursuant to Section 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 1.10, to extend its (or its 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;
(iii) if such day is a Termination DayDay (or any day following the provision of an Exiting Notice), set aside, segregate 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 Administrator) for the Issuer benefit of each Purchaser Group the entire remainder of the IssuerCollections (or in the case of an Exiting Purchaser, an amount equal to such Purchaser’s Share 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 Collectionsprovision 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 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, 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 dayday 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 shall, in accordance with the Administration Account (or such other account designated by the Administratorpriorities set forth in Section 1.4(d), deposit on each Settlement Date (or solely with respect into the account from time to Collections held for time specified by the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment)Administrator, Collections held for the Issuer benefit of the Purchasers pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(iiSections 1.4(b) and (iii) of Section 1.41.4(f); provided, that if UGI WESCO or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI WESCO (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI WESCO (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(iSection 1.4(b)(i) that represents the Issueraggregate of each Purchaser Group’s Ratable Share of the Servicing Fee in payment in full Fee. Within three Business Days of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement PeriodYield Period with respect to any Portion of Investment, the Administrator applicable Purchaser Agent will notify the Servicer and the Administrator by facsimile e-mail of the amount of the Discount accrued with respect to each such Portion of Capital Investment during such Settlement Period or portion thereofthe related Yield Period.
(d) Upon receipt of funds deposited into The Servicer shall distribute the Administration Account pursuant to clause amounts described (cand at the times set forth) in 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 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 CapitalInvestment 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 Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the Issueraggregate 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 first, if WESCO or an Affiliate thereof is not the Servicer, to the Issuer 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 CapitalInvestment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, second third, to the Issuer 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 Capital 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, third and fourth clauses of this Section 1.4(d)(ii) to the Servicer Purchasers within its Purchaser Group ratably according to Investment or, in payment in full the case of all accrued the third clause of this Section 1.4(d)(ii), fees (not including the Servicing FeesFee), and fourthfifth, if the Capital Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Capital 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 IssuerAdministrator for distribution ratably to each Purchaser Agent (for the benefit of the Purchasers within such Purchaser Group) the Administrator, the Administrator and any other each Indemnified Party or and each Affected Person 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 Aggregateaggregate of each Purchaser Group’s Ratable Share of all accrued Servicing Fees. After the CapitalAggregate Investment, Aggregate Discount, fees payable pursuant to the 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 the Issuereach 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, 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 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%, (y) occurs after the occurrence of the Facility Termination Date or (z) occurs at any time when the Purchased Interest exceeds 100% or any Termination Event has occurred and is continuing, the Seller shall pay an amount equal to such reduction or adjustment to a Lock-Box Account (other than an Exception Account) (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers for application pursuant to Section 1.6(a) within one Business Day of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (nm) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day date, a Collection of such Pool Receivable in full, and if such breach (x) causes the Purchased Interest to exceed 100%, (y) occurs after the occurrence of the Facility Termination Date or (z) occurs at any time when the Purchased Interest exceeds 100% or any Termination Event has occurred and is continuing, the Seller shall pay the amount of such deemed Collection to a Lock-Box Account (other than an Exception Account) (or as otherwise directed by the Administrator at such time) for the benefit of the Purchasers for application pursuant to Section 1.6(a) within one Business Day of such breach; provided that, upon payment in full by the Seller of any Pool Receivable in accordance with this Section 1.4(d)(ii), the Administrator’s and each other Purchaser’s rights in such Receivable shall automatically be conveyed to the Seller, without representation or warranty, but free and clear of all liens, security interests, charges and encumbrances created by or through the Administrator or any Purchaser;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law 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 Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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, time the Seller shall wish to cause the reduction of the Capital Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased InterestAggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator Administrator, each Purchaser Agent and the Servicer at least two Business Days’ prior written notice in the form of Annex C (A) at least one Business Day prior to the date of such reduction thereof for any reduction of Capital less than or equal to $20,000,000; Aggregate Investment (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 to 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 in trust for the Issuerbenefit of each Purchaser ratably according to its Investment, for payment to the Administrator (for the account of such Purchaser) 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 payment, and the Capital 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 that:
(A) the amount of any such reduction shall be not less than $1,000,000 and 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 an integral multiple of $100,000.in the amount required to reduce the Aggregate Investment to zero); and
(B)
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 Issuer, out of the Issuer’s 's Share of such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s '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, on behalf of the Issuer, the remainder of the Issuer’s 's Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,
(iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer the entire remainder of the Issuer’s '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 SECTION 2 of Exhibit EXHIBIT II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section SECTION 1.4(f)) ) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause CLAUSE (ii) or the proviso to clause CLAUSE (iii) plus (y) the amounts that are required to be set aside pursuant to clause CLAUSE (i), the proviso to clause CLAUSE (ii) and clause CLAUSE (iii) plus (z) the Seller’s 's Share of the Servicing Fee accrued and unpaid through such dayday 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 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)Date, Collections held for the Issuer pursuant to clause CLAUSE (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses CLAUSES (b)(ii) and (iii) of Section 1.4; provided, that if UGI Royal or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI Royal (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI Royal (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause CLAUSE (b)(ib)
(i) that represents the Issuer’s 's Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set asideFee. 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 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 CLAUSE (b)(i) and has not retained such amounts pursuant to clause CLAUSE (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s 's Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 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 reduc tion or adjustment;
(ii) if on any day any of the representations or warranties in Section SECTION 1(g) or (n) of Exhibit III, EXHIBIT III or Section SECTION 2, 3 or 4 of Exhibit EXHIBIT VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause 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.
(f) If at any time, 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 two Business Day Days' prior to the date of such reduction for any reduction of Capital less than or equal to $20,000,000; 10,000,000 and (B) at least two ten Business Days 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 10,000,000 (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 Collectio ns in trust for the 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, Date immediately following the current Settlement Period or (2) with respect to any reduction described in subsection (f)(i)(A), such other date approved by the Administrator with at least one (1) five Business Day Days prior written notice to the Administrator of such payment, and the Capital shall be deemed reduced in the amount to be paid to the Administrator only when in fact finally so paid; providedPROVIDED, that (a) 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 Capital of the Purchased Interest after giving effect to such reduction shall be not less than $10,000,000 and shall be in an integral multiple of $100,000 (unless the entire Capital shall have been reduced to zero) and (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.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Royal Appliance Manufacturing Co)
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 Collection Accounts for the benefit of the AdministratorPurchaser (and, segregate in a separate account approved by the Administratorcase 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) for the Issuerbelow), out of the Issuer’s Share of such Collections, first, first an amount equal to the all Discount accrued through such day for each Portion of Capital and not previously set aside, aside and second, an amount equal to the fees set forth in sum of the Fee Letter Utilization Fees, Commitment Fees and Breakage Costs accrued and unpaid through such dayday and not previously set aside, and third, to the extent funds are available therefor, an amount equal to the Issuer’s 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 SellerSellers, on behalf of the IssuerPurchaser, the remainder of the Issuer’s Share of such Collections. Such remainder shall shall, (x) to the extent representing a return of Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections Purchased Assets and other proceeds with respect theretothereto and (y) to the extent not representing a return of Capital, be paid (on behalf of the 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 Issuer (and shall, at the request benefit of the Administrator, segregate Purchaser in a separate account approved by accordance with clause (iii) below 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%,, then all such remaining Collections shall be so set aside for the benefit of the Purchaser), rather than remitting all of such remaining Collections to the Sellers for Reinvestment or for payment of the Deferred Purchase Price;
(iii) if such day is a Termination Day, set aside, segregate aside and hold maintain in trust (and shall, at the request Collection Account for the benefit of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer Purchaser the entire remainder of the Issuer’s Share of the such Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f1.6(f), pay to the Sellers (on behalf of the Purchaser) for its the Sellers’ own account 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) or the proviso to clause (iii) 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) the Seller’s Share all reasonable and appropriate out-of-pocket costs and expenses of the Servicing Fee accrued Servicers for servicing, collecting and unpaid through such dayadministering the Pool Receivables.
(c) The On each Settlement Date, each applicable Servicer shall (i) deposit into the Administration Purchaser’s Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Agent) all Collections held on deposit in each Collection Account for the Issuer 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 (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) third of Section 1.41.6(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 if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right no amounts shall be payable to retain the portion of the Collections set aside pursuant to Garland under clause (b)(iii) 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 thereofabove.
(d) Upon receipt of funds deposited into the Administration Purchaser’s Account pursuant to clause (cSection 1.6(c), the Administrator 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 Day, such funds shall be distributed in the Purchased Interest does not exceed 100%, following order of priority: first to the Issuer Purchaser in payment in full of all unpaid Discount accrued during the most recently ended Discount and fees (other than Servicing Fees) with respect to each Portion of CapitalAccrual Period, 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), second to the Servicer (payable in arrears on each Settlement Date) Purchaser in payment in full of all unpaid Utilization Fees, Commitment Fees and Breakage Costs accrued during the Issuer’s Share most recently ended Discount Accrual Period, third to the Purchaser in payment of outstanding Capital (and accrued Servicing Fees so Discount thereon) to the extent that funds have been set asideaside 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 or on a day when Day, such funds shall be distributed in the Purchased Interest exceeds 100%, following order of priority: first to the Issuer Purchaser in payment in full of all accrued Discount with respect to each Portion of Capitaland unpaid Discount, 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 Purchaser in payment in full of all accrued Servicing and unpaid Utilization Fees, Commitment Fees and fourthBreakage Costs, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable third to the Servicer have been paid Purchaser in fullpayment in full of all outstanding Capital, fourth to the IssuerPurchaser, the Administrator Agent and any other Indemnified Purchaser Party or Affected Person in payment in full of any other amounts owed thereto by the any Seller hereunderor any Servicer hereunder (including, without limitation, pursuant to Section 1.9, Section 1.10, Section 3.1, or Section 5.4). After the Capital, Discount, fees payable pursuant to occurrence of the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in fullFinal Payout Date, all additional Collections with respect to the Purchased Interest Assets shall be paid to the Seller Sellers for its their own accountaccounts in payment of the Deferred Purchase Price for the Purchased Assets.
(e) For the purposes of this Section 1.41.6:
(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 revision, cancellation, allowancediscount, rebate, discount credit, counterclaim, billing error or other adjustment made by the Seller any Seller, Originator or any Affiliate of the SellerServicer, or any setoff or dispute between the Seller any Seller, Originator or Servicer and any Affiliate of the Seller and an 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 Section 1(gparagraphs (e), (f) or (nk) of Exhibit III, or Section 2, 3 or 4 1 of Exhibit VI 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 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 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, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator Agent, the Purchaser or the Issuer 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 by the Administrator or the Issuer but rather to have been retained by the Seller of the relevant Pool Receivable and, accordingly, the Administrator Agent or the IssuerPurchaser, as the case may be, shall have a claim against the 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, the time a Seller shall wish to cause the reduction of the Aggregate Capital (but not to commence the liquidation, in whole or reduction to zero, of the entire Capital of the Purchased Interestin part), the such Seller may do so as follows:
(i) the such Seller shall give the Administrator and Agent at least (x) five (5) Business Days’ prior written notice thereof in the Servicer case of any reduction of the Aggregate Capital to zero ($0) or (y) one (1) Business Day’s prior written notice in the form case of Annex C (A) at least one Business Day prior to the date of such reduction for any partial 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 $50,000,000Aggregate Capital, in each case such notice shall have been received by 3:00 p.m. New York City time on such date and shall include either case, setting forth the proposed amount of such proposed reduction and reduction, the proposed date on which such reduction will commencecommence and the Approved Currency of the Capital to be reduced;
(ii) on the proposed date of the 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 trust a Collection Account for the Issuerbenefit of the Purchaser, for payment to the Administrator Purchaser’s Account on (1) solely with respect to any reduction described in subsections (f)(i)(B) or (f)(i)(C) the next Weekly Settlement DateDate (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 (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 Servicers to the Administrator of such paymentPurchaser, 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 Administrator Purchaser’s Account only when in fact finally so paid; providedprovided that, that the amount of any such reduction shall be not less than (A) one million U.S. Dollars ($1,000,000 and shall be 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 AgreementAgreement and applicable regulatory law. The Seller shall shall, to the extent that it is in possession thereof, or can reasonably obtain it, provide to the Servicer on a timely basis all information needed for such administration, including notice of 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 Issuerbenefit of each Purchaser Group, out of the Issuer’s Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter Fees accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s 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 the Issuereach Purchaser Group, the remainder of the Issuer’s Share of such Collections. Such remainder shall 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; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer 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%% (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) on the next Settlement Date in accordance with Section 1.4(c); provided, further, that (x) in the case of any Purchaser that is a Conduit Purchaser, if such Conduit Purchaser has provided notice (a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Conduit Purchaser to be reinvested pursuant to this clause (ii), or (y) in the case of any Exiting Purchaser, then in either case set forth in subclauses (x) or (y), above, such Purchaser's ratable share (determined according to outstanding Capital) of Collections shall not be reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below,
(iii) if such day is a Termination DayDay or a day on which the conditions set forth in Section 2 of Exhibit II to this Agreement are not satisfied (or any day following the provision of a Declining Notice or the occurrence of the Purchaser Termination Date with respect to any Purchaser), set aside, segregate and hold in trust 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 Issuer ), the entire remainder of the Issuer’s Share 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 Collectionsprovision of a Declining Notice or the occurrence of the Purchaser Termination Date with respect to such Purchaser, as the case may be, until the date such Declining Conduit Purchaser's or Exiting Purchaser's Capital has been paid in full; it being understood that if such day is also a Termination Day or a day on which the conditions set forth in Section 2 of Exhibit II to this Agreement are not satisfied, such Declining Conduit Purchaser's or Exiting Purchaser's Capital shall be recalculated taking into account amounts received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside for such Purchaser ratably in respect of its Capital (as recalculated)); provided, further, that if amounts are set aside and held in trust on any Termination Day or any day on which the conditions set forth in Section 2 of Exhibit II to this Agreement are not satisfied (or any day following the provision of a Declining Notice or the occurrence of the type described in clause (aPurchaser Termination Date with respect to any Purchaser) of the definition of “Termination Day” 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 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 satisfaction, cure or waiver of conditionsconditions or revocation of Declining Notice or waiver of such Purchaser Termination Date, as the case may be, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (xw) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (yx) the amounts that are required to be set aside pursuant to clause (i), the proviso provisos to clause (ii) and clause (iii) plus (zy) the Seller’s 's Share of the Servicing Fee accrued and unpaid through such dayday 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 shall, in accordance with the priorities set forth in Section 1.4(d), deposit into the Administration Account each applicable Purchaser Agent's account (or such other account designated by the Administratorsuch applicable Purchaser or its Purchaser Agent), on each Settlement Date (or solely in the case of Collections held for each Purchaser with respect to Collections held for the Issuer pursuant to clause (fsuch Purchaser's Portion(s) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer of Capital pursuant to clause (b)(i) or paragraph (f) ), plus the amount of Collections then held for the Issuer related Purchasers pursuant to clauses (b)(ii) and (iii) of this Section 1.4; provided, that if UGI CB or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI CB (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI CB (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s aggregate of each Purchasers' 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 thereofFee.
(d) Upon receipt of funds deposited into The Servicer shall distribute the Administration Account pursuant to clause amounts described (and at the times set forth) in paragraph (c), the Administrator shall cause such funds to be distributed ) 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 first, to each Purchaser Agent ratably according to the Issuer Discount accrued during the Yield Period ending on the Settlement Date on which such Discount is distributed (for the benefit of the relevant Purchasers within such Purchaser Agent's Purchaser Group) in payment in full of all accrued Discount and fees Fees (other than Servicing Fees) with respect to each Portion of CapitalCapital 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 clause paragraph (c), to the Servicer Servicer's own account (payable in arrears on each Settlement Date) in payment in full of the Issuer’s aggregate of the Purchasers' Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day on which the conditions set forth in Section 2 of Exhibit II to this Agreement are not satisfied or on a day when the Purchased Interest exceeds 100%, first first, if CB or an Affiliate thereof is not the Servicer, to the Issuer 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 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 CapitalCapital funded or maintained by the Purchasers within such Purchaser Agent's Purchaser Group and all accrued Fees, second third, to each Purchaser Agent ratably according to the Issuer 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, thirdsecond 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 Servicer 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 payment in full such LC Collateral Account equals 100% of all accrued Servicing Feesthe LC Participation Amount (or, and fourthif 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), 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 CB or an Affiliate thereof) have been paid in full, to each Purchaser Group ratably, based on the Issueramounts 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 owed then due and payable thereto by the Seller hereunderor Servicer hereunder and, sixth, to the Servicer's own account (if the Servicer is CB or an Affiliate thereof) in payment in full of the aggregate of the Purchasers' Share of all accrued Servicing Fees. After the then due and payable Aggregate Capital, Aggregate Discount, fees payable pursuant to the Fee Letter Fees and Servicing Fees with respect to the Purchased Interest, and any other amounts then due and payable by the Seller and the Servicer to the Issuereach 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 rejected or foreclosed returned 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 Seller, or the Servicer or any Affiliate of the Servicer and an ObligorObligor (except any such revision, cancellation, allowance, discount or other adjustment made in settlement of such Pool Receivable resulting from the financial inability of the applicable Obligor to pay such Pool Receivable and, in the case of all Pool Receivables (other than Specified Receivables), made in accordance with the Credit and Collection Policies), the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustmentadjustment and shall immediately pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of the Purchasers and their assigns and for application pursuant to Section 1.4;
(ii) if on any day it is determined that any of the representations or warranties in Section 1(gSections 1(j) or (n3(a) of Exhibit III, or Section 2, 3 or 4 III was (and at the time of Exhibit VI is not true such determination remains) untrue with respect to any Pool Receivable at the time a Purchase was made with respect to such Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
full and shall immediately pay any and all such amounts to a Lock-Box Account (iiior as otherwise directed by the Administrator at such time) except as provided in 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”), or ;
(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 a manner consistent with the oldest application and allocation procedures employed by the Servicer at such Receivable, unless such Obligor designates its payment for application to specific Receivablestime; and
(iv) if and to the extent the Administrator Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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, time the Seller shall wish to cause the reduction of the Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex C E (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; (Beach, a “Paydown Notice”) 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 each such reduction for any reduction of Capital greater than $50,000,000Paydown Notice shall include, in each case such notice shall have been received by 3:00 p.m. New York City time on such date and 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 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.Col
Appears in 1 contract
Sources: Receivables Purchase 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 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:
(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 IssuerAdministrator (for the benefit of the Purchasers), out of the Issuer’s Share of such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of 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, on behalf of the IssuerPurchasers, the remainder of the Issuer’s Share of such Collections. Such remainder shall shall, to the extent representing a return on Capital, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest Assets Coverage Percentage would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer 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%,
(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 Purchasers, the entire remainder of the Issuer’s Share of the such 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 shall, to the extent representing a return of the Capital, be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release subject to Section 1.6(f), pay to the Seller (subject to Section 1.4(f)on behalf of the Administrator and the Purchasers) for its 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 proviso to clause (iii) above, plus (y) the amounts that are required to be set aside pursuant to clause (i)) above, the proviso to clause (ii) and clause (iii) above, plus (z) the Seller’s Share all reasonable and appropriate out-of-pocket costs and expenses of the Servicing Fee accrued Servicer for servicing, collecting and unpaid through such dayadministering the Pool Receivables.
(c) The Servicer shall 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 or, solely with respect to Collections held for the Issuer Purchasers pursuant to clause (f) Section 1.6(f)(iii), such other date as set forth in clause approved by the Administrator with at least five (f)(iii5) for Business Days prior written notice to the Administrator of such payment), Collections held for the Issuer Purchasers pursuant to clause (b)(iSection 1.6(b)(i) or (f1.6(f) plus the amount of Collections then held for the Issuer Purchasers pursuant to clauses (b)(ii) and (iii) of Section 1.41.6; provided, that if UGI Peabody or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI Peabody (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(iSection 1.6(b)(i) that represent the Issuer’s Share of represents the Servicing Fee is revoked, UGI Peabody (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(iSection 1.6(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)) 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 Interest Assets Coverage Percentage does not exceed 100%, first to the Issuer Purchasers ratably (based on the aggregate accrued and unpaid Discount and fees payable to all Purchasers at such time) 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) 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 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 Assets Coverage Percentage exceeds 100%, first to the Issuer Purchasers ratably (based on the aggregate accrued and unpaid Discount and fees payable to all Purchasers at such time) in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, second to the Issuer 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 Assets Coverage Percentage to 100%) (determined as if such Collections had been applied to reduce the aggregate outstanding Capital), third, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants, the amount (if any) necessary to cause the amount of cash collateral held in the LC Collateral Account to equal the aggregate outstanding amount of the LC Participation Amount (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Assets Coverage Percentage to 100%) (determined as if such Collections had been applied to reduce the aggregate outstanding amount of the LC Participation Amount), fourth, to the Servicer in payment in full of all accrued Servicing Fees, and fourthfifth, 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 IssuerPurchasers 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 sixth, after the Seller and occurrence of the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in fullFinal Payout Date, all additional Collections with respect to the Purchased Interest Assets shall be paid to the Seller for its own accountaccount in payment of the Deferred Purchase Price for such Purchased Assets.
(e) For the purposes of this Section 1.41.6:
(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 1(gl(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii)) above, or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer 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 the Issuer such Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuersuch 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, 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 InterestCapital), 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 one two Business Day Days’ prior to the date of such reduction for any reduction of Capital less than or equal to $20,000,000; 20,000,000 and (B) at least two five Business Days 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 $50,000,00020,000,000, 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 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 IssuerPurchasers, 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, Date immediately following the current Settlement Period 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 approved by the Administrator of such paymentAdministrator, and the 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 $1,000,000 300,000 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 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 Issuer, out of the Issuer’s Share of such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of 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, on behalf of the Issuer, the remainder of the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,
(iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer the entire remainder of the Issuer’s Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if If on any day the Outstanding Balance of any Pool Transferred Receivable is reduced or adjusted cancelled as a result of Dilution, in 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 Obligorsuch case, the applicable Seller shall be deemed to have received on such day a Collection of such Pool Transferred Receivable in the amount of such reduction or adjustment;cancellation. If the applicable Seller is not the Collection Agent, such Seller shall pay to the Collection Agent all amounts deemed to have been received pursuant to this Section 2.04(a). The Collection Agent shall be required to deposit any such amount in the Collection Account no later than the Settlement Date for the applicable Settlement Period.
(iib) if on any day Upon discovery by the Sellers or the Purchaser of a breach of any of the representations or and warranties made by the Sellers in Section 1(g4.01(j) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Transferred Receivable, such party shall give prompt written notice thereof to the other parties, as soon as practicable and in any event within three (3) Business Days following such discovery. The applicable Seller shall, upon not less than two (2) Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable for a repurchase price equal to the Outstanding Balance of such Transferred Receivable. Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable. The proceeds of any such repurchase shall be deemed to have received on such day be a Collection in respect of such Pool Receivable Transferred Receivable. If the applicable Seller is not the Collection Agent, such Seller shall pay to the Collection Agent the repurchase price required to be paid pursuant to, and in full;accordance with, this Section 2.04(b).
(iiic) except Except as provided stated in clause (iSections 2.04(a) or (ii), 2.04(b) or as otherwise required by applicable law or the relevant underlying Contract, all Collections received from an Obligor of any Transferred Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
Appears in 1 contract
Sources: Purchase and Contribution Agreement (Herc Holdings 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 shall, to the extent that it is in possession thereof, or can reasonably obtain it, provide to the Servicer on a timely basis all information needed for such administration, including notice of 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 Issuerbenefit of each Purchaser Group, out of the Issuer’s Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter Fees accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share aggregate of the Servicing Fee accrued through each such day and not previously set aside,
(ii) subject to Section 1.4(f), if Purchasers; it being understood that each Purchaser Agent shall distribute such day is not a Termination Day, remit amounts to the Seller, on behalf of the Issuer, the remainder of the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant Purchasers within its Purchaser Group ratably according to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,
(iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer the entire remainder of the Issuer’s Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of CapitalDiscount, 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 clause paragraph (c), to the Servicer Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the Issuer’s aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day on which the conditions set forth in Section 2 of Exhibit II to this Agreement are not satisfied or on a day when the Purchased Interest exceeds 100%, first first, if CB or an Affiliate thereof is not the Servicer, to the Issuer 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 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 CapitalCapital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group and all accrued Fees, second third, to each Purchaser Agent ratably according to the Issuer 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, thirdsecond 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 (provided, however, that if such Purchaser Agent’s Purchaser Group includes the Swingline Purchaser, such amounts paid to such Purchaser Group in reduction of Capital shall be applied first as a reduction of Swingline Capital until reduced to zero and then to all such Purchaser Group’s remaining Capital, fourth, to the Servicer 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 payment in full such LC Collateral Account equals 100% of all accrued Servicing Feesthe LC Participation Amount (or, and fourthif 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), 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 CB or an Affiliate thereof) have been paid in full, to each Purchaser Group ratably, based on the Issueramounts 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 owed then due and payable thereto by the Seller hereunder. After the Capitalor Servicer hereunder and, Discountsixth, fees payable pursuant to the Fee Servicer’s own account (if the Servicer is CB or an Affiliate thereof) in payment in full of the aggregate of the Purchasers’ Share of all accrued Servicing Fees. such LC Participant’s Pro RataRatable Share of the face amount of such Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller of Credit and the Servicer to the Issueramount of such drawing, 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 accountrespectively.
(eb) For In the purposes event of this Section 1.4:
any drawing under a Letter of Credit by the beneficiary or transferee thereof, the LC Bank will promptly notify the Administrator and the Seller of such drawing. The Seller shall reimburse (such obligation to reimburse the LC Bank shall sometimes be referred to as a “Reimbursement Obligation”) the LC Bank in an amount equal to the amount of such drawing not later than (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 have received such notice by 1:00 p.m., New York time, on the date of such drawing (each such date, a “Drawing Date”), 4:00 p.m., New York time, on the Drawing Date and (ii) otherwise 12:00 noon, New York time, on the Business Day immediately following the Drawing Date (the date on which the Seller is obligated to perform a Reimbursement Obligation is referred to as a “Reimbursement Date”). In the event the Seller fails to reimburse the LC Bank for the full amount of any drawing under any Letter of Credit by 12:00 noon, New York time, on a Reimbursement Date (including because the conditions precedent to a Funded Purchase deemed to have been requested by Seller pursuant to Section 1.1(b) to reimburse the LC Bank shall not have been satisfied), the LC Bank will promptly notify each LC Participant thereof. Any notice given by the LC Bank pursuant to this Section may be oral if immediately confirmed in writing; provided that the lack of such an immediate written confirmation shall not affect the conclusiveness or binding effect of such oral notice.
(c) Each LC Participant shall upon any notice pursuant to paragraph (b) above make available to the LC Bank an amount in immediately available funds equal to its Pro RataRatable Share of the amount of the drawing (a “Participation Advance”), whereupon the LC Participants shall each be deemed to have received on such day made a Collection of such Pool Receivable Funded Purchase in that amount. If any LC Participant so notified fails to make available to the LC Bank the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection LC Participant’s Pro RataRatable Share of such Pool Receivable in full;
amount by no later than 2:00 p.m., New York time on the Reimbursement Date (iiior, if such Reimbursement Date is the Drawing Date, 12:00 noon, New York time on the Business Day immediately following such Reimbursement Date) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from date on which an Obligor of any Receivable shall be applied LC Participant is obligated to make available to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the 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 LC Bank the amount of such proposed reduction and LC Participant’s Pro RataRatable Share is referred to as the proposed “LC Participant Reimbursement Date”), then interest shall accrue on such LC Participant’s obligation to make such payment, from the LC Participant Reimbursement Date to the date on which such reduction will commence;
LC Participant makes such payment (i) at a rate per annum equal to the Federal Funds Rate during the first three days following the LC Participant Reimbursement Date and (ii) at a rate per annum equal to the rate applicable to Capital on and after the fourth day following the LC Participant Reimbursement Date. The LC Bank will promptly give notice of the occurrence of the LC Participant Reimbursement Date, but failure of the LC Bank to give any such notice on the proposed LC Participant Reimbursement Date or in sufficient time to enable any LC Participant to effect such payment on the LC Participant Reimbursement Date shall not relieve such LC Participant from its obligation under this paragraph (c), provided that such LC Participant shall not be obligated to pay interest as provided in clauses (i) and (ii) above until and commencing from the date of receipt of notice from 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 Issuer, for payment to the Administrator on (1) solely with respect to any reduction described in subsections (f)(i)(B) LC Bank 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 payment, and the Capital occurrence of the LC Participant Reimbursement Date. Each LC Participant’s Commitment shall be deemed reduced in continue until the amount last to occur of any of the following events: (A) the LC Bank ceases to be paid obligated to issue or cause to be issued Letters of Credit hereunder, (B) no Letter of Credit issued hereunder remains outstanding and uncancelled or (C) all Persons (other than the Administrator only when in fact finally so paid; provided, that the amount Seller) have been fully reimbursed for all payments made under or relating to Letters of any such reduction shall be not less than $1,000,000 and shall be an integral multiple of $100,000Credit.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Cincinnati Bell 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 and the Servicing Agreement. The Seller shall provide to the Servicer on a timely basis all information and written direction needed and written direction for such administration, including notice of the occurrence of any Termination Day and current computations of the aggregate of the Purchased InterestInterests of all Purchasers. All Collections of Pool Receivables shall be removed from each Lock-Box Account and within two Business Days of deposit thereof remitted to the Collection Account and all other collections shall be removed from each Lock-Box Account or the Collection Account within two Business Days of deposit thereof and remitted to the applicable Originator or its designee.
(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 in the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer, out of the Issuer’s Share of such Collections, first, Collection Account an amount equal to the accrued and unpaid Discount, Servicing Fee, Administration Fee, Program Fee and Liquidity Fee (to the extent not previously so set aside); and
(c) On each Settlement Date, the Servicer shall deposit:
(i) from amounts set aside thereby pursuant to Section 1.4(b)(i) during the related Fixed Period: -----------------
(A) first, to the Servicer (if the Servicer is not ----- Mail-Well I Corporation or an Affiliate thereof), any accrued and unpaid Servicing Fee for the related Fixed Period;
(B) second, to the Administration Account (or such ------ other account designated by the Administrator), any accrued and unpaid Discount accrued through such day for (on each Portion of Capital Capital), Administration Fee, Program Fee and not previously Liquidity Fee for the related Fixed Period; and
(C) third, any remaining amounts in accordance with ----- Section 1.4(c)(ii) below. ------------------
(ii) from amounts set aside, second, an amount equal aside thereby pursuant to the fees set forth in the Fee Letter accrued and unpaid through such day, and thirdSection 1.4(b)(ii) or available pursuant to Section 1.4(c)(i)(C) ------------------ -------------------- above:
(A) first, to the extent funds are available ----- therefor, an amount equal to the 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, on behalf of the Issuer, the remainder of the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,
(iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer the entire remainder of the Issuer’s Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject has requested a reduction of Capital pursuant 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 (i1.4(f)(iii), 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 the aggregate outstanding Capital of all Purchasers (or, in the case of a reduction of Capital pursuant to Section 1.4(f)(iii), -------------------- the aggregate amount of such reduction);
(B) second, to pay any amount in Sections 1.4(c)(i)(A) ------ --------------------- or 1.4(c)(i)(B) (in that order of priority) not otherwise ------------ paid in full in accordance therewith; and
(C) third, to pay any other Obligations payable ----- by the Seller hereunder or under any other Transaction Document;
(D) fourth, to the Servicer (if the Servicer is ------ Mail-Well I Corporation or an Affiliate thereof), any accrued and unpaid Servicing Fee for the related Fixed Period; and
(E) fifth, if (i) such Settlement Date (or solely with respect is not a ----- Termination Day and to Collections held for the Issuer pursuant to clause (f) such other date as extent the applicable conditions set forth in clause Exhibit II hereto have been satisfied, to the ---------- Seller as a reinvestment in Receivables to the extent the aggregate of the Purchased Interests of all Purchasers (f)(iiiexpressed as a percentage) would not exceed 100% after giving effect to such distribution to the Seller, with any excess amounts remaining in the Collection Account for distribution in accordance with this Section 1.4(c)(ii) on the next Settlement Date or ------------------ (ii) the Final Payout Date has occurred, to the Seller. If such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day Settlement Date is not a Termination Day Day, to the extent it would have been a return of Capital upon remittance to each Purchaser, such Purchaser shall be deemed to have reinvested the percentage of Collections represented by the Purchased Interest of such Purchaser not distributed to such Purchaser and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside Purchased Interest shall be automatically recomputed pursuant to clause (b)(i) that represent Section 1.3. To the Issuer’s Share extent there ----------- are not sufficient funds available to distribute all amounts within a given level of the Servicing Fee is revokedpriority, UGI (or such Affiliate) may retain the portion available funds will be distributed within such level 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 priority on a pro rata basis based on the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereofthen due and unpaid.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (cSection 1.4(c) or 1.4(f)(iii), 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%Day, first first, to the Issuer applicable Purchasers in payment ----- in full of all accrued Discount and fees (other than Servicing Fees) with respect to on 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) applicable Securitization Parties in payment in full of ------ any accrued and unpaid Administration Fee, Program Fee and Liquidity Fee, and third, to the Issuer’s Share applicable Purchasers as a ----- reduction of accrued Servicing Fees so set asideCapital of such Purchasers pursuant to Section 1.4(f), andif applicable; and --------------
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%Day, first first, to the Issuer applicable Purchasers in payment in full of all ----- accrued Discount with respect to (on each Portion of Capital), second second, to the Issuer ------ applicable Securitization Parties in payment in full of Capital (orany accrued and unpaid Administration Fee, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%)Program Fee and Liquidity Fee, third, to the Servicer applicable Purchasers in payment in full of ----- all accrued Servicing FeesCapital of such Purchasers, and fourth, if the Capital and ------ accrued Discount with respect to each Portion of Capital have all Purchasers has been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator Securitization Party 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 outstanding Capital of all Purchasers and Discount (on each Portion of Capital) of all Purchasers and any Administration Fee, DiscountProgram Fee, fees payable pursuant to the Liquidity Fee Letter and Servicing Fees with respect to the Purchased InterestFee, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator Securitization Parties or any other Indemnified Party Party, Affected Person or Affected any other 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. To the extent there are not sufficient funds available to distribute to all Purchasers all amounts within a given level of priority, such available funds will be distributed by the Administrator within such level of priority on a pro rata basis based on the amount then due and unpaid to such Purchasers.
(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, Servicer or any setoff or dispute between the Seller Seller, the Servicer or any Affiliate of the Seller other Person and an ObligorObligor ("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 adjustmentDilution and the Seller shall immediately deposit such amount into the Collection Account for distribution in accordance with this Section 1.4; ----------- provided, however, that to the extent such amount would be -------- ------- immediately remitted to the Seller pursuant to the proviso in Section 1.4(b)(ii), such deposit and remittance may be made by ------------------ book-entry only;
(ii) if on any day any of the representations or warranties in Section 1(gparagraphs (h) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI III is not true with -------------- --- ----------- respect to any Pool ReceivableReceivable (except as a result of a Receivable becoming a Defaulted Receivable after the date such representation or warranty was made), the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided full and the Seller shall immediately deposit such amount into the Collection Account for distribution in clause (i) or (iiaccordance with this Section 1.4; ----------- provided, however, that to the extent such amount would be -------- ------- immediately remitted to the Seller pursuant to the proviso in Section 1.4(b)(ii), or as otherwise required such deposit and remittance may be made 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------------------ book-entry only; and
(iviii) if and to the extent the Administrator or the Issuer any Securitization 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 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, such Securitization Party 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, time the Seller shall wish to cause the reduction of the aggregate outstanding Capital of all Purchasers (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interestall Purchasers), the Seller may do so as follows:
(i) the Servicer shall set aside Collections and hold them in trust for the Purchasers under Section 1.4(b)(ii) until the amount so set aside shall ------------------ equal the desired amount of reduction;
(ii) 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 commenceoccur by no later than the Required Notice Days prior to the date on which such reduction will occur;
(iiiii) on the proposed date of the commencement of such reduction and on each day thereafterreduction, 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 deposit such Collections from amounts set aside and held in trust pursuant to Section 1.4(b)(ii) on such date ------------------ into the Administration Account for the Issuer, for payment to the Administrator on (1) solely with respect to any reduction described distribution 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.accordance with
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.. 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:
(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 Issuer, out of the Issuer’s 's Share of such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s '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, on behalf of the Issuer, the remainder of the Issuer’s 's Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,
(iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer the entire remainder of the Issuer’s 's Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “"Termination Day” " and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s 's Share of the Servicing Fee accrued and unpaid through such dayday 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 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)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 UGI Lesco or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI Lesco (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI Lesco (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(ib)
(i) that represents the Issuer’s 's Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set asideFee. 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.. 7
(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 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 Issuer’s 's Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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 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 8 been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, 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 two Business Day Days' prior to the date of such reduction for any reduction of Capital less than or equal to $20,000,000; 10,000,000 and (B) at least two five Business Days 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 commence10,000,000;
(ii) on 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 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, Date immediately following the current Settlement Period (or (2) with respect to any reduction described in subsection (f)(i)(A), such other date approved by the Administrator with at least one (1) five Business Day Days prior written notice to the Administrator of such payment, ) and the Capital shall be deemed reduced in the an 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 $1,000,000 300,000 and shall be an integral multiple of $100,000, 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 $100,000 and (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.
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 identify, track, and hold hold, or cause to be held, in trust (and shall, at for the request benefit of the Administrator, segregate in a separate account approved by the Administrator) for the IssuerPurchasers, out of the Issuer’s Share of such Collections, first, 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, secondtracked and held in trust, (y) an amount equal to the fees set forth in the Fee Letter Letters accrued and unpaid through such dayday and not previously identified, tracked and held in trust, and third, to the extent funds are available therefor, (z) an amount equal to the Issuer’s aggregate of the Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside,identified, 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 the IssuerPurchasers, the remainder of the Issuer’s Share of such Collections. Such remainder shall shall, to the extent representing a return of the Aggregate Capital, be automatically reinvested reinvested, ratably, according to each Purchaser’s Capital, in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect 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 remit 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 Issuer 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, as the case may be (determined as if such Collections set aside had been applied to reduce the Aggregate Capital and/or the Aggregate LC Amount at such time); provided, further, that if the Scheduled Termination Date has been extended by one or more Purchaser Groups pursuant to Section 1.2(e) and, on such day, there are one or more Exiting Purchaser Groups with Adjusted Exposures greater than zero (each such day, a “Non-Extension Day”), then each Exiting Purchaser Group’s ratable share (determined based upon the respective Adjusted Exposures of the various Purchaser Groups) of Collections shall not be reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Exiting Purchaser Groups pursuant to clause (iii) below;
(iii) if such day is a Termination Day (or any Non-Extension Day), set asideidentify, segregate track and hold 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 Administrator, Administrators segregate in a separate account approved by the Administrator) for the Issuer ), the entire remainder of such Collections (or in the Issuer’s Share case of any Non-Extension Day that is not also a Termination Day, an amount equal to the CollectionsExiting Purchaser Groups’ ratable share of such Collections based on their respective 4 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 amounts are set aside and held in trust on any 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 the type described in clause (a) of the definition of “Termination Day” this parenthetical and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts Collections shall be reinvested set aside for all Purchasers ratably in accordance with clause respect of their respective Adjusted Exposures (ii) on the day of such subsequent satisfaction or waiver of conditions, as recalculated)); and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (xw) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (yx) 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 (zy) the Seller’s Share of the Servicing Fee accrued and unpaid through such dayday 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 On each Settlement Date, the Servicer shall shall, in accordance with the priorities set forth in Section 1.4(d), deposit into the Administration Account (or such other account designated specified by the Administrator), on each Settlement Date (or solely with respect to Purchaser Agent all Collections held for the Issuer Administrator, the Purchaser Agents and the Purchasers 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)(iiSection 1.4(b) and (iii) of Section 1.41.4(f); provided, that if UGI Celanese International or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI Celanese International (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI Celanese International (or such Affiliate) ), as Servicer, may retain the portion of the Collections set aside pursuant to clause (b)(iSection 1.4(b)(i) that represents the Issuer’s aggregate of the Purchasers’ Share of the Servicing Fee in payment in full Fee. On or prior to the fifth (5th) Business Day of each calendar month following the end of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator 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 Settlement Period or portion thereofthe most recently ended calendar month.
(d) Upon receipt of funds deposited into The Servicer shall distribute the Administration Account pursuant to clause (c)Collections held for the Administrator, the Administrator shall cause such funds to be distributed as followsPurchaser 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 and the Purchased Interest does not exceed 100%Day:
(A) first, first to the Issuer 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 and fees (other than Servicing Fees) with respect to each Portion of CapitalCapital 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, and respectively;
(B) second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(iSection 1.4(b)(i) and has not retained such amounts pursuant to clause (cSection 1.4(c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s 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 or on a day when the Purchased Interest exceeds 100%Day:
(A) first, first to the Issuer 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 CapitalCapital funded or maintained by the Purchasers and all accrued Fees;
(C) third, second to the Issuer 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 (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), thirdy) second, to the Servicer LC Collateral Account for the benefit of any LC Bank in payment its Purchaser Group to cash collateralize such LC Bank’s outstanding Letters of Credit until the amount held in full the LC Collateral Account equals 100% of the aggregate amount available to be drawn under such Letters of Credit plus the amount of all accrued Servicing Fees, and Expected LC Fees with respect thereto;
(D) fourth, if the Capital and accrued Discount with respect to each Portion Adjusted Exposures of Capital 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 Issuerremaining 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 CapitalAdjusted Exposures of all Purchaser Groups have been reduced to zero, all accrued Discount, fees payable pursuant to the Fee Letter Fees and Servicing Fees with respect to the Purchased Interest, have been paid in full and any all other amounts payable by the Seller and the Servicer to the Issuereach Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, 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 adjusted canceled as a result of (I) any defective, rejected, returned, repossessed or foreclosed returned goods or services, or any revision, cancellation, allowance, rebate, discount cash or other adjustment made by the Seller or any Affiliate of the Sellerdiscount, 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 dispute between credit in respect of any claim by the Seller or any Affiliate Obligor thereof (whether such claim arises out of the Seller and same or a related transaction or an Obligorunrelated 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 any the day such representation and warranty is made or deemed made or (y) if any of the representations or warranties in Section 1(g) or (n1(r) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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 in fullexisting 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 clause (iSection 1.4(e)(i) or and (ii), ) or as otherwise required by applicable law 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 for application is to be applied to specific Receivables; and
(iv) if and to the extent the Administrator Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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, time the Seller shall wish to cause the a voluntary reduction (in whole or in part) of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest)Aggregate Capital, 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
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 Day and current computations of the Purchased InterestParticipation.
(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. With respect to all Collections on deposit in the Collection Account on such day, the Servicer shall:
(i) set aside and hold in trust (and shall, at for the request benefit of the Administrator, segregate in a separate account approved by the Administrator) for the IssuerPurchaser, out of the Issuer’s Share percentage of such CollectionsCollections represented by the Participation, first, FIRST an amount equal to the Discount accrued through such day for each Portion of Capital Investment and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued aside and unpaid through such day, and thirdSECOND, to the extent funds are available therefor, an amount equal to the Issuer’s Share of Servicing Fee and the Servicing Commitment Fee accrued through such day for the Participation and not previously set aside,; and
(ii) subject to Section 1.4(fSECTION 1.4(F), if such day is not a Termination Day, remit to the Seller, on behalf of the IssuerPurchaser, the remainder of the Issuer’s Share percentage of such Collections. Such remainder , represented by the Participation, to the extent representing a return on the Investment; such Collections shall be automatically reinvested in Pool Receivables, and remain invested in the Related Security, Collections and other proceeds with respect theretoParticipation; provided, howeverIT BEING UNDERSTOOD, that if prior to so remitting to the Purchased Interest would exceed 100%Seller the remainder of such Collections, then the Servicer shall have calculated the Participation on such day, and if such Participation shall exceed 100% on such day, such Collections shall not reinvest, be remitted to the Seller but shall set aside and hold remain in trust the Collection Account for the Issuer (and shall, at the request benefit of the Administrator, segregate Purchaser in a separate account approved by the Administratoraccordance with PARAGRAPH (iii) 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%,below;
(iii) if such day is a Termination Day, set aside, segregate 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 Issuer Purchaser the entire remainder of the Issuer’s Share percentage of the CollectionsCollections represented by the Participation; provided, PROVIDED that so long as the Facility Termination Date has not occurred if any amounts are set aside and held maintained in trust the Collection Account on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, and thereafter, the conditions set forth in Section SECTION 2 of Exhibit EXHIBIT II are satisfied or are waived by the AdministratorAgent, such previously set-set aside amounts shall be reinvested shall, to the extent representing a return on the Investment, remain invested in accordance with clause the preceding PARAGRAPH (ii) on the day of such subsequent satisfaction or waiver of conditions; PROVIDED that so long as the Facility Termination Date has not occurred if any amounts are maintained 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, 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 remain invested in accordance with the foregoing PARAGRAPH (ii) or the proviso to PARAGRAPH (iii), release to the Seller (subject to Section SECTION 1.4(f)) for its own account any Collections in excess of: of the sum of (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus such amounts, (y) the amounts that are required to be set aside maintained in the Collection Account pursuant to clause PARAGRAPH (i), the proviso to clause (ii) above and clause (iii) plus (z) in the Seller’s Share 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 Servicing Fee accrued and unpaid through such dayPool Receivables.
(c) The Servicer shall deposit into the Administration Purchaser's Account (or such other account designated by the AdministratorAgent), on the last day of each Settlement Date Yield Period relating to a Portion of Investment:
(or solely i) Collections held on deposit in the Collection Account for the benefit of the Purchaser pursuant to SECTION 1.4(b)(i) in respect of accrued Discount and the Program Fees and Commitment Fees with respect to such Portion of Investment;
(ii) Collections held on deposit in the Collection Account for the Issuer benefit of the Purchaser pursuant to clause SECTION 1.4(f) with respect to such Portion of Investment; and
(fiii) such other date as set forth in clause the lesser of (f)(iiix) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held on deposit in the Collection Account for the Issuer benefit of the Purchaser pursuant to clauses (b)(iiSECTION 1.4(b)(iii) and (iiiy) such Portion of Section 1.4; provided, that if UGI or an Affiliate thereof is Investment. The Servicer shall deposit to its own account from Collections held on deposit in the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such AffiliateCollection Account pursuant to SECTION 1.4(b)(i) that the right to retain the portion in respect of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement PeriodFee, the Administrator will notify the Servicer by facsimile of the an amount of Discount equal to such accrued with respect to each Portion of Capital during such Settlement Period or portion thereofServicing Fee.
(d) Upon receipt of funds deposited into the Administration Purchaser's Account pursuant to clause (c)SECTION 1.4(c) with respect to any Portion of Investment, the Administrator 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%Day, first FIRST to the Issuer Purchaser in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each such Portion of CapitalInvestment, SECOND, to the Purchaser in payment of accrued and unpaid Program Fees and Commitment Fees, and secondTHIRD, 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 (cSECTION 1.4(b)(i), to the Servicer (payable in arrears on the last day of each Settlement Datecalendar month) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, aside with respect to such Portion of Investment; and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%Day, first FIRST to the Issuer Purchaser in payment in full of all accrued Discount with respect to each such Portion of CapitalInvestment, second SECOND to the Issuer Purchaser in payment of accrued and unpaid Program Fees and Commitment Fees, THIRD, to the Purchaser in payment in full of Capital (orsuch Portion of Investment, FOURTH, if such day Seller or any of its Affiliates is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), thirdServicer, to the Servicer in payment in full of all accrued Servicing FeesFees with respect to such Portion of Investment, and fourthFIFTH, if the Capital Investment and accrued Discount with respect to each Portion of Capital Investment have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than the Seller) have been paid in full, to the IssuerPurchaser, the Administrator Agent and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunderhereunder and then to the Servicer (if the Servicer is the Seller) in payment in full of all accrued Servicing Fees. After the CapitalInvestment, DiscountProgram Fees, fees payable pursuant to the Fee Letter Discount and Servicing Fees with respect to the Purchased InterestParticipation, and any other amounts payable by the Seller and the Servicer to the IssuerPurchaser, the Administrator Agent or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest Participation shall be paid to the Seller for its own account.
(e) For the purposes of this Section 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 revisiondiscount, cancellation, allowance, rebate, discount rebate or other adjustment made by the Seller Seller, any Originator or any Affiliate of the SellerServicer, or any setoff or dispute between the Seller Seller, any Originator or any Affiliate of the Seller 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(gPARAGRAPHS (f) or (nl) of Exhibit III, or Section 2, 3 or 4 1 of Exhibit VI 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 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 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 Agent or the Issuer 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 the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator Agent or the IssuerPurchaser, 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, time the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, entire Investment or reduction to zero, any Portion of the entire Capital of the Purchased Interest)Investment, the Seller may do so as follows:
(i) the Seller shall give the Administrator and the Servicer written notice Agent at least fifteen (or in the form case 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 a Portion of such reduction for any Investment which is not a reduction of Capital greater than $20,000,000 and less than or equal to $50,000,000; and the entire Investment, two) Business Days' prior written notice thereof (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 including 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 with respect to the Investment or such Portion of Investment (including to any related Discount) 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 the Collection Account for the Issuerbenefit of the Purchaser, for payment to the Administrator Agent 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 last day of the current Yield Period relating to the Administrator Investment or such Portion of Investment (and in the case of a reduction of the entire Investment, the Servicer shall hold in the Collection Account for payment on such paymentdate an amount equal to all other obligations of the Seller or Servicer to 6 the Purchaser, the Agent and each other Indemnified Party or Affected Person hereunder), and the Capital Investment or the applicable Portion of Investment shall be deemed reduced in the amount to be paid to the Administrator Agent only when in fact finally so paid; provided, that PROVIDED that,
A. 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 of the Participation after giving effect to such reduction shall be not less than $1,000,000 unless the entire Investment 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 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 (Atrium Companies 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 Issuerbenefit of the Purchasers, out of the Issuer’s Share of such Collections, first, 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, second, (ii) an amount equal to the fees set forth in the Fee Letter Letters accrued and unpaid through such dayday and not previously set aside, and third, to the extent funds are available therefor, (iii) an amount equal to the Issuer’s aggregate 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 the IssuerPurchasers, the remainder of the Issuer’s Share of such Collections. Such remainder shall shall, to the extent representing a return of the Aggregate Capital, be automatically reinvested reinvested, ratably, according to each Purchaser’s Capital, in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect 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 remit such remainder to the Seller or reinvest, but shall set aside and hold in trust for the Issuer 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%,% 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 accountdistributed to the Administrator (for the benefit of its relatedthe Purchasers) for distribution and application on the next Settlement Date in accordance with Section 1.4(d); provided, further, that in the case of any Purchaser that has either (i) provided notice to its Purchaser Agent and the Administrator of its refusal, following any request by the Seller to extend the then-current Scheduled Termination Date, to extend its 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 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) for the Issuer ), the entire remainder of such Collections (or in the Issuer’s Share case of any Non-Extension Day that is not also a Termination Day, an amount equal to the CollectionsExiting 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 amounts are set aside and held in trust on any 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 the type described in clause (a) of the definition of “Termination Day” this parenthetical and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts Collections shall be reinvested set aside for all Purchasers ratably in accordance with clause respect of their respective Capital (ii) on the day of such subsequent satisfaction or waiver of conditions, as recalculated)); and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (xw) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (yx) 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 (zy) the Seller’s Share of the Servicing Fee accrued and unpaid through such dayday 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 deposit into shall, in accordance with the Administration Account (or such other account designated by the Administratorpriorities set forth in Section 1.4(d), deposit on each Settlement Date (or solely with respect into the account from time to Collections held for time specified by each Purchaser Agent on each Settlement Datein writing by the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment)Administrator, Collections held for such Purchaser Agent (for the Issuer benefit of its relatedthe Purchasers) pursuant to clause (b)(iSection 1.4(b)(i) or (f1.4(f) plus the amount of Collections then held for such Purchaser Agent (for the Issuer benefit of its relatedthe Purchasers) pursuant to clauses (b)(iiSections 1.4(b)(ii) and (iii) of Section 1.41.4(b)(iii); provided, that if UGI Lyondell Chemical or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI Lyondell Chemical (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI Lyondell Chemical (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(iSection 1.4(b)(i) that represents the Issuer’s aggregate of the Purchasers’ Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set asideFee. On or prior to the last day of each Settlement Period, the Administrator 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 or portion thereofPeriod.
(d) Upon receipt of funds deposited into The Servicer shall distribute the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed amounts described 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%Day:
(A) first, first to the Issuer 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 and fees (other than Servicing Fees) with respect to each Portion of CapitalCapital 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, and respectively; and
(B) second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(iSection 1.4(b)(i) and has not retained such amounts pursuant to clause (cSection 1.4(c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s 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%Day:
(A) first, first to the Issuer 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 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 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 IssuerAdministrator 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 Letter Letters and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuereach 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 adjusted canceled as a result of (I) any defective, rejected, returned, repossessed or foreclosed returned goods or services, or any revision, cancellation, allowance, rebate, discount cash or other adjustment made by the Seller or any Affiliate of the Sellerdiscount, 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 dispute between credit in respect of any claim by the Seller or any Affiliate Obligor thereof (whether such claim arises out of the Seller and same or a related transaction or an Obligorunrelated 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 any the day such representation and warranty is made or deemed made, (y) if any of the representations or warranties in Section 1(g) or (n1(r) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI III is not true with respect to any Pool ReceivableReceivable 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 on such day a Collection of the full Outstanding Balance of such Pool Receivable in fullor 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 clause (iSection 1.4(e)(i) or and (ii), ) or as otherwise required by applicable law 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 for application is to be applied to specific Receivables; and
(iv) if and to the extent the Administrator Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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, time the Seller shall wish to cause the a voluntary reduction (in whole or in part) of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest)Aggregate Capital, the Seller may do so as follows:
(i) the Seller shall give the Administrator and the Servicer each Purchaser Agent written notice in substantially 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
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 Issuerbenefit of each Purchaser Group, out of the Issuer’s Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s aggregate 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 the Issuereach Purchaser Group, the remainder of the Issuer’s Share of such Collections. Such remainder shall 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; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers) on the next Settlement Date in accordance with Section 1.4(c); provided, further, that (x) in the case of any Purchaser that is a Conduit Purchaser, if such Conduit Purchaser has provided notice (a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Conduit Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser with respect to which the Purchaser Termination Date has occurred (an “Exiting Purchaser”) then in either case (x) or (y), above, such Collections shall not be reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii), below.
(iii) if such day is a Termination DayDay (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 Issuer benefit of each Purchaser Group the entire remainder of the IssuerCollections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser an amount equal to such Declining Conduit Purchaser’s Share 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 Collectionsprovision 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 type described in clause (aPurchaser Termination Date with respect to any Purchaser) of the definition of “Termination Day” 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 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 satisfaction, cure or -5- waiver of conditions or revocation of Declining Notice or waiver of conditionssuch 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 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 dayday 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 shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into the Administration Account each applicable Purchaser Agent’s account (or such other account designated by the Administratorsuch applicable Purchaser or its Purchaser Agent), on each Settlement Date (or solely in the case of Collections held for each Purchaser with respect to Collections held for the Issuer pursuant to clause (fsuch Purchaser’s Portion(s) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer of Capital pursuant to clause (b)(i) or paragraph (f) ), plus the amount of Collections then held for the Issuer related Purchasers pursuant to clauses (b)(ii) and (iii) of this Section 1.4; provided, that if UGI Triumph or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI Triumph (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI Triumph (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s aggregate Purchasers’ 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 thereofFee.
(d) Upon receipt of funds deposited into The Servicer shall distribute the Administration Account pursuant to clause amounts described (cand at the times set forth) in 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%Day, first to each Purchaser Agent ratably according to the Issuer 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 Fees (other than Servicing Fees) with respect to each Portion of CapitalCapital 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 clause paragraph (c), to the Servicer Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the Issuer’s 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%Day, first if Triumph or an Affiliate thereof is not the Servicer, to the Issuer 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 CapitalCapital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, second third to each Purchaser Agent ratably according to the Issuer 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%), third, ; 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 Servicer in payment in full of all accrued Servicing FeesPurchasers within its Purchaser Group ratably according to Discount and Capital, and 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 Issueramounts 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 owed then due and payable thereto by the Seller hereunderor 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 the 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 the Issuereach Purchaser Group, the Administrator 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 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 adjustmentadjustment 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 Section 1(gSections 1(j) or (n3(a) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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;
full and shall immediately pay any and all such amounts to a Lock-Box Account (iiior as otherwise directed by the Administrator at such time) except as provided in 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”), or ;
(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 Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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, time the Seller shall wish to cause the reduction of the Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex C E (each, a “Paydown Notice”) (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 the Aggregate Capital greater than $20,000,000 and less than or equal to $50,000,000; 20,000,000 (or such greater amount as agreed to by the Administrator and the Majority Purchaser Agents) and (CB) at least three five Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $50,000,00020,000,000, in and each case such notice Paydown Notice shall have been received by 3:00 p.m. New York City time on such date and shall include 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 Issuerbenefit of each Purchaser ratably according to its Capital, for payment to each such Purchaser (or its related Purchaser Agent for the Administrator benefit of such Purchaser) on (1) solely with respect to any reduction described in subsections (f)(i)(B) or (f)(i)(C) the next Weekly Settlement Date, Date (or (2such other date as agreed to by the Administrator) with respect to any reduction described in subsection (f)(i)(A), Portions of Capital maintained by such other date with at least one (1) Business Day prior written notice to Purchaser immediately following the Administrator of such paymentrelated 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 Administrator benefit of such Purchaser) only when in fact finally so paid; provided, that that:
(A) the amount of any such reduction shall be not less than $1,000,000 and shall be or an integral multiple of $100,000100,000 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 IssuerAdministrator (for the benefit of the Purchasers), out of the Issuer’s Share percentage of such CollectionsCollections represented by the Purchased Interest, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s 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, on behalf of the IssuerPurchasers, the remainder of the Issuer’s Share percentage of Collections represented by the Purchased Interest (to the extent representing a return on Capital); such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvestremit such remainder to the Seller, but shall set aside and hold in trust for the Issuer 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, 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) for the Issuer the entire remainder of the Issuer’s 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 previously set-aside amounts shall 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: (xw) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (yx) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (zy) the Seller’s 's Share of the Servicing Fee accrued and unpaid through such dayday 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 (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)Date, Collections held for the Issuer Purchasers pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer Purchasers pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI Peabody or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI Peabody (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI Peabody (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Purchasers' Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set asideFee. 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 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 Issuer’s 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 Issuer 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 Issuer 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 fourthfifth, 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 IssuerPurchasers 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 IssuerPurchasers, 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 1(gl(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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 the Issuer 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 the Issuer such Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuersuch 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, 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 (the "Paydown Notice") (A) at least one two Business Day Days' prior to the date of such reduction for any reduction of Capital less than or equal to $20,000,000; 20,000,000 and (B) at least two five Business Days 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 $50,000,00020,000,000, 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 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 IssuerPurchaser, 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, Date immediately following the current Settlement Period 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 approved by the Administrator of such paymentAdministrator, and the 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 $1,000,000 300,000 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 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 shall, on each day on which Collections of Pool Receivables are received (or deemed received) pursuant to this Agreement by the Seller or Servicer, transfer such Collections in available funds from the ServicerLock- Box Accounts and deposit such Collections into the Collection Account. With respect to such Collections on such day, the Servicer shall:
(i) transfer from the Collection Account to the Liquidation Account, set aside and hold in trust (and shall, at for the request benefit of the Administrator, segregate in a separate account approved by the Administrator) for the IssuerPurchaser, out of the Issuer’s Share percentage of such CollectionsCollections represented by the Participation, first, FIRST an amount equal to the Discount accrued through such day for each Portion of Capital Investment and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued aside and unpaid through such day, and thirdSECOND, to the extent funds are available therefor, an amount equal to the Issuer’s Share of Servicing Fee (if the Servicing Originator or any Affiliate thereof is not the Servicer), the Commitment Fee and the Program Fee accrued through such day for the Participation and not previously set aside,; and
(ii) subject to Section 1.4(fSECTION 1.4(F), if such day is not a Termination Day, remit to the Seller, on behalf of the IssuerPurchaser, the remainder of the Issuer’s Share percentage of such Collections. Such remainder , represented by the Participation, to the extent representing a return on the Investment; such Collections shall be automatically reinvested in Pool Receivables, and in the Related Security, Security and Collections and other proceeds with respect thereto, and the Participation shall 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 Net Receivables Pool Balance on such day, 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 Issuer (and shall, at the request benefit of the Administrator, segregate Purchaser in a separate account approved by the Administratoraccordance with PARAGRAPH (iii) 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%,below;
(iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at transfer to the request of the Administrator, segregate in a separate account approved by the Administrator) Liquidation Account for the Issuer Purchaser the entire remainder of the Issuer’s Share percentage of the CollectionsCollections represented by the Participation; provided, PROVIDED that so long as the Facility Termination Date has not occurred if any amounts are set aside and held in trust so transferred to the Liquidation Account on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, and thereafter, the conditions set forth in Section SECTION 2 of Exhibit EXHIBIT II are satisfied or are waived by the AdministratorAgent, such previously set-set aside amounts shall shall, to the extent representing a return on the Investment, be reinvested in accordance with clause 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 (subject to Section SECTION 1.4(f)) for its own account any Collections in excess of: of (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus such amounts, (y) the amounts that are required to be set aside transferred to the Liquidation Account pursuant to clause PARAGRAPH (i), the proviso to clause (ii) above and clause (iii) plus (z) in the Seller’s Share 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 Servicing Fee accrued and unpaid through such dayPool Receivables.
(ci) The Servicer shall deposit into the Administration Purchaser's Account (or such other account designated by the AdministratorAgent), on each Settlement Date Servicer Report Date:
(or solely A) 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 and Commitment Fees with respect to such Portion of Investment;
(B) Collections held on deposit in the Liquidation Account for the Issuer benefit of the Purchaser pursuant to clause SECTION 1.4(f) with respect to such Portion of Investment; and
(fC) such other date as set forth in clause the lesser of (f)(iiix) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held on deposit in the Liquidation Account for the Issuer benefit of the Purchaser pursuant to clauses (b)(iiSECTION 1.4(b)(iii) and (iiiy) such Portion of Section 1.4; provided, that if UGI or an Affiliate thereof is Investment.
(ii) The Servicer shall deposit to its own account from Collections held on deposit in the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such AffiliateLiquidation Account pursuant to SECTION 1.4(b)(i) that the right to retain the portion in respect of the Collections set aside pursuant accrued Servicing Fee, an amount equal to clause (b)(i) that represent the Issuer’s Share of the such accrued 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 on 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 thereofReport Date.
(d) Upon receipt of funds deposited into the Administration Purchaser's Account pursuant to clause (c)SECTION 1.4(c)(i) with respect to any Portion of Investment, the Administrator 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%Day, first FIRST to the Issuer Purchaser in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each such Portion of CapitalInvestment, SECOND, to the Purchaser in payment of accrued and unpaid Program Fees and Commitment Fees, and secondTHIRD, 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 (cSECTION 1.4(b)(i), to the Servicer (payable in arrears on the last day of each Settlement Datecalendar month) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, aside with respect to such Portion of Investment; and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%Day, first FIRST to the Issuer Purchaser in payment in full of all accrued Discount with respect to each such Portion of CapitalInvestment, second SECOND to the Issuer Purchaser in payment of accrued and unpaid Program Fees and Commitment Fees, THIRD, to the Purchaser in payment in full of Capital (orsuch Portion of Investment, FOURTH, if such day Vanstar or any of its Affiliates is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), thirdServicer, to the Servicer in payment in full of all accrued Servicing FeesFees with respect to such Portion of Investment, and fourthFIFTH, if the Capital Investment and accrued Discount with respect to each Portion of Capital Investment have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than the Seller or an Affiliate of the Seller) have been paid in full, to the IssuerPurchaser, the Administrator Agent and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunderhereunder and then to the Servicer (if the Servicer is the Seller or an Affiliate of the Seller) in payment in full of all accrued Servicing Fees. After the CapitalInvestment, DiscountProgram Fees, fees payable pursuant to the Fee Letter Discount and Servicing Fees with respect to the Purchased InterestParticipation, and any other amounts payable by the Seller and the Servicer to the IssuerPurchaser, the Administrator Agent or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest Participation shall be paid to the Seller for its own account.
(e) For the purposes of this Section 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 revisiondiscount, cancellation, allowance, rebate, discount rebate or other adjustment (other than any adjustment relating to Ineligible Amounts) made by the Originator, Seller or any Affiliate of the SellerServicer, or any setoff or dispute between the Seller Seller, Originator or any Affiliate of the Seller 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(gPARAGRAPHS (g) or (nm) of Exhibit III, or Section 2, 3 or 4 SECTION A of Exhibit VI 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 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 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 or otherwise specifies its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator Agent or the Issuer 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 the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator Agent or the IssuerPurchaser, 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, time the Seller shall wish to cause the reduction of the Capital a Portion of Investment (but not to commence the liquidation, or reduction to zero, of the entire Capital Investment of the Purchased InterestParticipation), 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) Agent at least two Business Days 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 written notice thereof (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 including 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 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 trust the Liquidation Account for the Issuerbenefit of the Purchaser, for payment to the Administrator Agent on (1) solely with respect the last day of the current Settlement Period relating 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 Portion of such paymentInvestment, and the Capital applicable Portion of Investment shall be deemed reduced in the amount to be paid to the Administrator Agent only when in fact finally so paid; provided, that provided that,
A. the amount of any such reduction shall be not less than $1,000,000 and shall be an integral multiple of $100,000500,000 (except in connection with a reduction to zero of such Portion of Investment),
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 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
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 IssuerAdministrator (for the benefit of the Purchasers), out of the Issuer’s Purchasers’ Share of such Collections, ,
(A) first, an amount equal to the Purchasers’ aggregate amount of Discount accrued through such day for each Portion of Capital and not previously set aside, ,
(B) second, an amount equal to the fees set forth in the Fee Letter Letters accrued and unpaid through such day, ,
(C) and third, to the extent funds are available therefor, an amount equal to the Issueraggregate of such Purchaser Group’s Ratable Share of the Purchaser’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 the Issuereach Purchaser Group, the remainder of the Issuer’s Share of such Collections. Such remainder shall shall, to the extent representing a return on the aggregate Capital, be automatically deemed to be reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect theretothereto ratably, according to each Purchaser’s Capital; 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 Issuer 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%% (determined as if such Collections set aside had been applied to reduce the aggregate Capital outstanding at such time); provided, further, that in the case of any Purchaser that has provided notice (an “Exiting Notice”) to its Purchaser Agent of its refusal to extend its Commitment hereunder (an “Exiting Purchaser”), then such Exiting Purchaser’s ratable share of such Collections based on its Capital shall not be reinvested (after the termination of its Commitment) and shall instead be held in trust for Administrator (for the benefit of such Exiting Purchaser) and applied in accordance with clause (iii) below,
(iii) if such day is a Termination DayDay (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 Issuer benefit of each Purchaser Group the entire remainder of such Collections (or in the Issuercase of an Exiting Purchaser an amount equal to such Purchaser’s Share 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 Collectionsprovision 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 Administratorin accordance with Section 6.1 hereof, such previously set-aside amounts shall 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 excess, if any, of: (xw) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (yx) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (zy) the Seller’s Share of the Servicing Fee accrued and unpaid through such dayday plus (z) 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 Administration Account (date hereof, or such other account designated by the Administratorsuch Purchaser to Servicer from time to time), 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)Date, Collections held for the Issuer 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 Issuer Administrator (for the benefit of such Purchaser) pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI Strategic Energy or an Affiliate thereof is the Servicer, Servicer and such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revokedDay, UGI Strategic Energy (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) or (b)(iv)(y) that represents the Issueraggregate of each Purchaser Group’s Ratable Share of the Purchasers’ Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set asideFee. On the last day of each Settlement Period, the Administrator 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 into the Administration Account pursuant to clause (c), the Administrator 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%,
(A) first, first to such Purchaser Agent ratably according to the Issuer 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 CapitalCapital 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 and
(B) 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 Issueraggregate 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%,
(A) first, first if such Termination Day is not solely the result of the occurrence and continuation of a Servicer Termination Event, to the Issuer Servicer in payment in full of the aggregate of such Purchaser Group’s Ratable Share of all accrued Servicing Fees,
(B) second, 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 and fees (other than Servicer Fees) with respect to each Portion of CapitalCapital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group,
(C) third, second to such Purchaser Agent ratably according to the Issuer 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%),
(D) fourth, thirdto 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 aggregate outstanding amount of the LC Participation Amount (determined as if such Collections used to cash collateralize the LC Amount had been applied to reduce the aggregate Capital outstanding at such time),
(E) fifth, if such Termination Day is solely the result of the occurrence and continuation of a Servicer Termination Event, to the Servicer in payment in full of the aggregate of such Purchaser Group’s Ratable Share of all accrued Servicing Fees, and
(F) sixth, and fourth, if the Capital and accrued Discount with respect to each Portion the Purchasers in its Purchaser Group’s percentage interest of Capital have been reduced to zerozero 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 IssuerAdministrator for distribution to each Purchaser, each Purchaser Agent, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder, ratably in accordance with the amounts due thereto. After the Capital, Discount, fees payable pursuant to the Fee Letter Letters and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuereach 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, (x) the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustmentadjustment and (y) the Seller shall promptly pay an amount equal to such amount 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; provided, however, that unless a Termination Event has occurred and is continuing on such day, the payment required by clause (y) above may be made on the next Monthly Settlement Date;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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 fullfull 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 this 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 or the Issuer 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 the Issuer such Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuersuch 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, 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 Administrator, the Purchaser Agents and the Servicer written notice in the form of Annex C (Athe “Paydown Notice”) at least one two Business Day Days’ prior to the date of such reduction for any reduction of Capital less than or equal to $20,000,000reduction; (B) at least two Business Days provided, however, that if such Paydown Notice is received by the Administrator and the Purchaser Agents 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 $50,000,0002:00 p.m., in each case such notice shall have been received by 3:00 p.m. New York City time on a Business Day, then such date and requested reduction shall include be effected by the amount close of such proposed reduction and business on the proposed date on which such reduction will commencefollowing Business Day;
(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 IssuerPurchasers ratably (based on their respective Portions of Capital), for payment to the Administrator Purchaser Agents on (1) solely with respect to any reduction described in subsections (f)(i)(B) or (f)(i)(C) the next Weekly Settlement Date, Date immediately following the current Settlement Period 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 approved by the Administrator of such paymentPurchaser Agents, and the Capital shall be deemed reduced in the amount to be paid to the Administrator Purchaser Agents 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 1 contract
Sources: Receivables Purchase Agreement (Kansas City Power & Light 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 Issuerbenefit of each Purchaser Group, out of the Issuer’s Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s 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 the Issuereach Purchaser Group, the remainder of the Issuer’s Share of such Collections. Such remainder shall 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; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer benefit of the Purchasers (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,, which amount shall be deposited ratably to each Purchaser Agent’s account (for the benefit of its related Purchasers) on the next Settlement Date in accordance with Section 1.4(c); provided, further, that (x) in the case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to its Purchaser Agent of either its refusal, pursuant to Section 1.22, to extend its Commitment hereunder (an “Exiting Purchaser”) then in either case (x) or (y), above, such Collections shall not be reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii), below.
(iii) if such day is a Termination DayDay (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 Issuer benefit of each Purchaser Group the entire remainder of such Collections (or in the Issuercase of a Declining Conduit Purchaser or an Exiting Purchaser an amount equal to such Purchaser’s Share 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 Collectionsprovision 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 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 conditionsconditions 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 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 dayday 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 shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into the Administration Account each applicable Purchaser Agent’s account (or such other account designated by the Administratorsuch applicable Purchaser or its Purchaser Agent), 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 paymentany Portion of Investment), Collections held for the Issuer 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 Issuer related Purchasers pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI C▇▇▇▇▇ Tire or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI C▇▇▇▇▇ Tire (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI C▇▇▇▇▇ Tire (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s aggregate of each Purchasers’ 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 thereofFee.
(d) Upon receipt of funds deposited into The Servicer shall distribute the Administration Account pursuant to clause amounts described (cand at the times set forth) in 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 each Purchaser Agent ratably according to the Issuer 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 Fees (other than Servicing Fees) with respect to each Portion of CapitalCapital 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 Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the Issuer’s 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 Issuer 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 CapitalCapital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, second third to each Purchaser Agent ratably according to the Issuer 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, thirdrespectively, fourth, to the Servicer 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 payment in full such LC Collateral Account equals 100% of all accrued Servicing Feesthe aggregate outstanding amount of the LC Participation Amount, and fourthfifth, 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 Issueramounts 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 hereunderor 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 the 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 the Issuereach 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 the Servicer or any Affiliate of the Servicer, or any setoff or dispute between the Seller or any Affiliate of the Seller 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 adjustmentadjustment 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 Section 1(gSections 1(j) or (n3(a) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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;
full and shall immediately pay any and all such amounts to a Lock-Box Account (iiior as otherwise directed by the Administrator at such time) except as provided in 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”), or ;
(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 Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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, time the Seller shall wish to cause the reduction of the Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex C E (each, a “Paydown Notice”) (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 the Aggregate Capital greater than $20,000,000 and less than or equal to $50,000,000; 25,000,000 (or such greater amount as agreed to by the Administrator and the Majority Purchaser Agents) and (CB) at least three five Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $50,000,00025,000,000, in and each case such notice Paydown Notice shall have been received by 3:00 p.m. New York City time on such date and shall include 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 Issuerbenefit of each Purchaser ratably according to its Capital, for payment to each such Purchaser (or its related Purchaser Agent for the Administrator benefit of such Purchaser) on (1) solely with respect to any reduction described in subsections (f)(i)(B) or (f)(i)(C) the next Weekly Settlement Date, Date (or (2such other date as agreed to by the Administrator) with respect to any reduction described in subsection (f)(i)(A), Portions of Capital maintained by such other date with at least one (1) Business Day prior written notice to Purchaser immediately following the Administrator of such paymentrelated 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 Administrator benefit of such Purchaser) only when in fact finally so paid; provided, that that:
(A) the amount of any such reduction shall be not less than $1,000,000 100,000 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 1 contract
Sources: Receivables Purchase Agreement (Cooper Tire & Rubber Co)
Settlement Procedures. (a) The collection Notwithstanding any other provision 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 Issuer, out of the Issuer’s Share of such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and thirdin order to administer the Credit Facility in an efficient manner and to reduce the number of fund transfers between Lenders and Agent, to the extent funds are available thereforBorrowers, an amount equal to the Issuer’s Share of the Servicing Fee accrued through such day Lenders and Agent agree that Agent may (but shall not previously set aside,
(ii) subject to Section 1.4(fbe obligated to), if such day is not a Termination Dayand Borrowers and Lenders hereby irrevocably authorize the Agent to, remit to the Sellerfund, on behalf of the IssuerLenders, Loans pursuant to Section 3.1 and Letter of Credit Accommodations pursuant to Section 3.2, subject to the remainder of the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested procedures for settlement set forth in Pool Receivables, and in the Related Security, Collections and other proceeds with respect theretothis Section 3.12; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,
(iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer the entire remainder of the Issuer’s Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first other than to fund Revolving Loans to make payments to the Issuer in payment in full issuer of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations Letter of Credit Accommodations or warranties for costs and expenses as provided for herein, Agent shall in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, no event fund such Loans if the Seller Agent shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the Seller shall give the Administrator and the Servicer written notice in from the form of Annex C (A) at least one Majority Lenders on the Business Day prior to the date day of such reduction the proposed Loan that one or more of the conditions precedent contained in Section 4.2 will not be satisfied on the day of the proposed Loan, and (ii) Agent shall not otherwise be required to determine that the conditions precedent in Section 4.2 have been satisfied. (bi With respect to all periods for any reduction which the Agent has funded Loans pursuant to Section 3.12(a) above, the amount of Capital less than 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 equal to $20,000,000; (B) at least two downward on the basis of the average amount of the outstanding Loans for the Business Days prior to of the week 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 reduction lesser period or periods as Agent shall determine, a summary statement of the amount of outstanding Loans for any reduction of Capital greater than $20,000,000 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 less than or equal to $50,000,000; and (C) at least three Business Days 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 reduction for summary statement. If, as of the end of any reduction Settlement Period, the amount of Capital greater a Lender's Pro Rata Share of the outstanding Loans is more than $50,000,000such 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 each case such notice shall have been received no event later than the time set forth in the preceding sentence) transfer to Agent by 3:00 p.m. New York City time on such date and shall include 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 proposed reduction and the proposed date on which such reduction will commence;
(ii) on the proposed date Lender's Pro Rata Share 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 outstanding Loans for the Issuerprevious Settlement Period, for payment Agent shall forthwith transfer to the Administrator on (1) solely with respect to any reduction described such Lender by wire transfer 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 payment, and the Capital shall be deemed reduced in the amount to be paid to the Administrator only when in fact finally so paid; provided, that immediately available funds the amount of any the decrease. The obligation of each of the Lenders to transfer such reduction funds and effect such settlement shall be not less than $1,000,000 irrevocable and unconditional and without recourse to or warranty by Agent. Each of Agent and Lenders agrees to mark its books and records at the end of each Settlemen▇ ▇▇riod 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 an integral multiple entitled to receive interest on its Pro Rata Share of $100,000the Loans which have been funded by such Lender.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Salant 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 each Receivable Interest. All Collections shall be deposited in the Purchased InterestAgent's Account on the Business Day following the receipt in the Lock-Box Account of cleared funds and invested in overnight (short-term) securities rated at least A-1/P-1.
(b1) The Servicer shallAgent shall (based on information contained in the most recent Seller's Report), on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the ServicerSettlement Date:
(i1) 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 Administrator) for the IssuerInvestors or the Banks that hold such Receivable Interest, out of the Issuer’s Share percentage of such Collections, firstCollections represented by such Receivable Interest, an amount equal to the Discount Yield, Fees and Collection Agent Fee accrued through such day for each Portion of Capital such Receivable Interest and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of the Servicing Fee accrued through such day and not previously set aside,;
(ii2) 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, Seller on behalf of the Issuer, Investors or the remainder of Banks that hold such Receivable Interest the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion percentage of such Collections thatrepresented by such Receivable Interest, together with to the other Collections set aside extent representing a return of Capital, by recomputation of such Receivable Interest pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,Section 2.03;
(iii3) if such day is a Termination DayLiquidation Day for any one or more Receivable Interests, set aside, segregate and aside for the Investors or the Banks that hold in trust (and shall, at the request such Receivable Interests all 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 remaining Collections; provided, that if and
(4) during such times as 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 required to be reinvested in accordance with clause the foregoing subsection (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) both of such amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) and of the amounts that are required to be set aside pursuant to clause subsection (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such dayabove.
(c2) The Servicer shall deposit into the Administration Account [Intentionally Omitted].
(or such other account designated by the Administrator), on 3) On each Settlement Date (or solely with respect to Collections held except for the Issuer pursuant to clause (f) such other date as set forth Collection Agent Fee, in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each which case it shall be every fourth 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 (cDate), the Administrator Agent shall cause such (based upon information contained in the most recent Seller's Report) distribute funds to be distributed on deposit in the Agent's Account as follows:
(i1) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%Liquidation Day, first to the Issuer Investors or the Banks that hold the relevant Receivable Interest and to the Agent in payment in full of all accrued Discount Yield and fees (other than Servicing Fees) with respect to each Portion of Capital, 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), then to the Servicer (payable in arrears on each Settlement Date) Collection Agent in payment in full of the Issuer’s Share of all accrued Servicing Fees so set aside, andCollection Agent Fee.
(ii2) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%Liquidation Day, first to the Issuer Investors or the Banks that hold the relevant Receivable Interest and to the Agent in payment in full of all accrued Discount with respect to each Portion of CapitalYield and Fees, second to such Investors or Banks in reduction to zero of all Capital, third to such Investors, Banks or the Issuer Agent in payment in full of Capital (orany other amounts owed by the Seller hereunder, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, and fourth to the Servicer Collection Agent in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunderCollection Agent Fee. After the Capital, DiscountYield, fees payable pursuant to the Fees and Collection Agent Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the IssuerInvestors, the Administrator Banks or any other Indemnified Party or Affected Person the Agent 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.
(e4) For the purposes of this Section 1.42.04:
(i1) if on any day the Outstanding Balance of any Pool a Receivable is reduced shall become (in whole or adjusted as in part) 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 ObligorDiluted Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustmentDiluted Receivable and the Seller shall, on the next Settlement Date, pay such amount to the Agent on behalf of the Investors and the Banks;
(ii2) if on any day any of the representations or warranties contained in Section 1(g4.01(h) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not no longer true with respect to any Pool Receivable, the Seller shall be deemed repurchase such Receivable for an amount equal to have received the Capital and unpaid Yield attributable thereto on such day a Collection of such Pool Receivable in fullthe next Settlement Date;
(iii3) except as provided in clause subsection (i) or (ii) of this Section 2.04(e), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall will be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, held as unapplied cash unless such Obligor designates its payment for application to specific Receivables; and
(iv4) if and to the extent the Administrator Agent, the Investors or the Issuer Banks shall be required for any reason by legal process or court order to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it on its behalf 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 Agent, the Investors or the IssuerBanks, 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.
(f5) If at any timeAnything herein to the contrary notwithstanding, the Agent may on any Settlement Date reimburse itself out of cash on hand in the Agent's Account an amount equal to the amount referred to in Section 5.01(u). Further, the Agent need not make any distribution to the Seller shall wish pursuant to cause this Section 2.04 for the reduction 20 day period immediately preceding the Commitment Termination Date until such time as the Agent reasonably determines that it will not be required to make payments of the Capital (but not amount referred to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interestin Section 5.01(u), 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Personal Care Holdings 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 Borrower 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 Borrower or the Servicer, transfer such Collections from the Lock-Box Accounts and deposit such Collections into the Collection Account. With respect to such Collections on such day, the Servicer shall to the extent permitted by the applicable agreement:
(i) set aside and hold in trust (and shall, at transfer from the request of Collection Account to the Administrator, segregate in a separate account approved by the Administrator) for the IssuerLiquidation Account, out of the Issuer’s Share of such Collections, first, an amount equal to the Discount interest accrued through such day for each Portion of Capital Loan and not previously set aside, deposited therein and second, an amount equal to the fees Servicing Fee, the Commitment Fee, the Letter of Credit Fees and any costs or expenses set forth in the Fee Letter accrued and unpaid through such daySection 4.3, and third4.4, to the extent funds are available therefor4.5 or 4.6, an amount equal to the Issuer’s Share of the Servicing Fee in each case accrued through such day and not previously set aside,deposited therein (collectively, the amounts described in clause first and second are referred to herein as, the "Carrying Costs"); and 98 107
(ii) subject to Section 1.4(f), if such day is not a Termination Amortization Day, remit to the Seller, on behalf of the Issuer, Borrower the remainder of the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested Collections for application in Pool Receivables, and in the Related Security, Collections and other proceeds accordance with respect theretoSection 11.1(h); provided, however, that if on such day the Purchased Interest would exceed 100%Aggregate Outstanding Amount exceeds the Borrowing Base (such excess being referred to herein as a "Borrowing Base Deficiency"), then such remainder of Collections shall be transferred from the Collection Account to the Liquidation Account until the sum of the Borrowing Base plus the amount on deposit in the Liquidation Account (other than amounts on deposit therein in respect of the Carrying Costs pursuant to clause 11.1(b)(i) above) at least equals the Aggregate Outstanding Amount; provided, further, that if on any day (other than an Amortization Day) such Borrowing Base Deficiency shall no longer exist, the Servicer shall not reinvestremit to the Borrower any amounts remaining on deposit in the Liquidation Account that were deposited therein pursuant to the preceding proviso, but which amounts shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved be applied by the Administrator) a portion of such Collections that, together Borrower in accordance with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,Section 11.1(h); and
(iii) if such day is a Termination an Amortization Day, set aside, segregate and hold in trust (and shall, at transfer to the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer Liquidation Account the entire remainder of the Issuer’s Share of the such Collections; provided, .
(c) On each day that if amounts any Carrying Costs (other than Servicing Fees) 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 payable by the Administrator, such previously set-aside amounts shall be reinvested Borrower in accordance with clause (ii) on this Agreement, the day Servicer shall transfer from the Liquidation Account to the Agent's Account, out of Collections deposited in the Liquidation Account in respect of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject Carrying Costs pursuant 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 (i11.1(b)(i), the proviso to clause (ii) amount of such Carrying Costs that are due and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through payable on such day.
(d) On each day that the Borrower is required to repay the Loans in accordance with Section 3.1 or pay amounts to the Administrative Agent in connection with Letters of Credit pursuant to the proviso to Section 3.1(b) or (c) The or Section 2.8.4, the Servicer shall transfer from the Liquidation Account to the Agent's Account, out of Collections deposited in the Liquidation Account pursuant to Section 11.1(b)(ii) and (b)(iii), the principal amount of the Loans required to be repaid and the payments to be made to the Agent pursuant to Section 3.1 (including pursuant to Section 3.1(b) or (c) thereof) and Section 2.8.4.
(e) On each Amortization Day occurring after the Loans and all Carrying Costs payable to the Secured Parties have been paid in full, the Servicer shall transfer to the Agent's Account all amounts in the Liquidation Account, which remaining amounts shall be held by the Agent for application in accordance with clauses fourth, fifth and sixth of Section 11.1(g)(ii).
(f) On each day that any Servicing Fees are payable by the Borrower in accordance with this Agreement, the Servicer shall deposit into the Administration Account (or such other to its own account designated by the Administrator), on each Settlement Date (or solely with respect to from Collections held for on deposit in the Issuer Liquidation Account pursuant to clause (fSection 11.1(b)(i) in respect of the accrued Servicing Fee, an amount equal to 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 1.4accrued Servicing Fee; provided, however, that if UGI an Event of Default has occurred and is continuing and ProSource or an any Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of shall not withdraw any amounts from the amount of Discount accrued Liquidation Account with respect to each Portion of Capital during such Settlement Period or portion thereofaccrued Servicing Fees.
(dg) Upon receipt of funds deposited into in the Administration Agent's Account pursuant to clause (cSections 11.1(c), 11.1(d), 11.1(e) or 11.1
(h) the Administrator Administrative 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%an Amortization Day, first first, to the Issuer Secured Parties in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capitalinterest on the Loans, 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) Secured Parties in payment of accrued and unpaid Letter of Credit Fees and Commitment Fees and to cover all other Carrying Costs payable to the Secured Parties, and third, to the Secured Parties in full payment of the Issuer’s Share outstanding principal amount of accrued Servicing Fees so set aside, the Loans; and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%an Amortization Day, first first, to the Issuer Secured Parties in payment in full of all accrued Discount with respect to each Portion of Capitalinterest on the Loans, second second, to the Issuer Secured Parties in payment in full of Capital (oraccrued and unpaid Letter of Credit Fees, if such day is not a Termination DayCommitment Fees, and all other Carrying Costs payable to the amount necessary to reduce the Purchased Interest to 100%)Secured Parties, third, to the Servicer Secured Parties in payment in full the outstanding principal amount of all accrued Servicing Feesthe Loans, and fourth, if after the Capital outstanding principal amount of the Loans, accrued interest thereon and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees other Carrying Costs payable to the Servicer Secured Parties have been paid in full, remaining amounts, to the Issuerextent of the Letter of Credit Outstandings, shall be 100 109 deposited into the Administrator and any other Indemnified Party or Affected Person in payment in full LOC Collateralization Account to collateralize Letter of any other amounts owed thereto by the Seller hereunder. After the CapitalCredit Outstandings, Discountfifth, fees payable pursuant to the Fee Letter Secured Parties for the payment of all other Obligations of the Borrower hereunder, and Servicing Fees with respect sixth, to the Purchased Interest, and any other amounts payable by the Seller and Servicer (if 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 ProSource or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller thereof) all accrued and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if unpaid Servicing Fees 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 thereofBorrower all remaining amounts.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
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 Date or Revolving Paydown Day and current computations of the Purchased InterestParticipations.
(b) The Servicer shallshall segregate and hold all Collections in trust for the benefit of the Seller, on each day on which the Purchasers and the Insurer and, 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. With respect to such Collections on the Servicerday deposited into the Deposit Accounts:
(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 Issuer, out of the Issuer’s Share percentage of such CollectionsCollections represented by the Aggregate Participation, firstFIRST the Servicer shall transfer from the Deposit Accounts to the Liquidation Account, and the Agent shall hold therein for the benefit of the Insurer, an amount equal to the Discount Premium accrued through such day for each Portion of Capital and not previously set asidetransferred to the Liquidation Account and SECOND, secondout of each Purchaser's Distribution Percentage of the remainder of such Collections, the Servicer shall transfer from the Deposit Accounts to the Liquidation Account, and the Agent shall hold therein for the benefit of each Purchaser, an amount equal to the fees set forth in sum of the Fee Letter Discount accrued and unpaid through such day, day on each Portion of Investment of such Purchaser's Participation and not previously transferred to the Liquidation Account and the Program Fees accrued through such day with respect to such Purchaser and not previously transferred to the Liquidation Account (provided that the amount allocated pursuant to this priority SECOND shall not exceed [ * ]) and third, out of the remainder of such Collections, the Servicer shall transfer from the Deposit Accounts to the extent funds are available thereforLiquidation Account, and the Agent shall hold therein for the benefit of the Servicer (if AFC or any Affiliate thereof is not the Servicer), an amount equal to the Issuer’s Share of the Servicing Fee accrued through such day and not previously set aside,transferred to the Liquidation Account;
(ii) subject to Section 1.4(f), if such day is not a Termination Day, (A) if the amount on deposit in the Cash Reserve Account on such day is less than the Cash Reserve, the Servicer shall transfer * TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT from the Deposit Accounts out of the remainder of the percentage of such Collections represented by the Aggregate Participation to the Cash Reserve Account funds sufficient to increase the amount on deposit therein to equal the Cash Reserve; (B) if such day is a Revolving Paydown Day, Purchaser Termination Day or any date on which a reduction is occurring pursuant to SECTION 1.4(f), out of the remainder (after giving effect to clause (A)) of the percentage of such Collections represented by the Aggregate Participation, the Servicer and the Agent shall apply such Collections in accordance with SECTION 1.4(g), SECTION 1.4(f) and SECTION 1.4(h) (in the order of priority listed); (C) the Servicer shall transfer from the Deposit Accounts to the Liquidation Account out of the remainder (after giving effect to CLAUSES (A) and (B) above) of the percentage of such Collections represented by the Aggregate Participation an amount equal to the sum of the Discount accrued through such day on each Portion of Investment of such Purchaser's Participation and not previously transferred to the Liquidation Account and the Program Fees accrued through such day with respect to such Purchaser and not previously transferred to the Liquidation Account, in each case, to the extent not transferred pursuant to CLAUSE SECOND in SECTION 1.4(b)(i) above; (D) the Servicer shall transfer (after giving effect to CLAUSES (A), (B) and (C) above) from the Deposit Accounts to the Liquidation Account, and the Agent shall promptly apply (ratably in proportion to the respective amounts owed to each such Person) for the account of any Indemnified Party that is owed any amounts hereunder, under the [ * ] Transaction Document not consisting of Discount, Investment, Program Fees or Premium, an amount equal to the sum of such amounts; and (E) the Servicer shall remit to the Seller, on behalf of the IssuerPurchasers, the remainder of the Issuer’s Share percentage of such Collections. Such Collections represented by the Aggregate Participation (after giving effect to CLAUSES (A), (B), (C) and (D) above); such Collections remitted to the Seller shall first be used, if the Originator or any Affiliate of the Seller is the Servicer, to pay any accrued but unpaid Servicing Fee to the Servicer and the remainder shall be automatically reinvested in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,;
(iii) if such day is a Termination Day, set aside(A) the Servicer shall transfer to the Liquidation Account, segregate and hold in trust (and shall, at the request out of the AdministratorCollections in the Deposit Accounts (first out of the Seller's share of such Collections, segregate in a separate account approved and then out of the portion of such Collections represented by the AdministratorAggregate Participation) an amount equal to the costs and expenses incurred by the Agent and the Insurer in enforcing their rights and the rights of the other Indemnified Parties hereunder and reported to the Servicer by the Agent, (B) the Servicer shall transfer to the Liquidation Account, and the Agent shall hold therein for the Issuer each Purchaser, such Purchaser's Distribution Percentage of the entire remainder of the Issuer’s percentage of the Collections represented by the Aggregate Participation, and (C) the Servicer shall transfer to the Liquidation Account, and the Agent shall hold therein for each Purchaser, such Purchaser's Termination Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day entire remainder of the type described Collections in clause (a) the Deposit Accounts represented by the Seller's share of the definition of “Termination Day” andCollections, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, andif any; and * TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day Day, out of the Seller's share of Collections, the Servicer shall FIRST, remit to the Servicer in the event that AFC is not the Servicer, the Servicing Fee and SECOND, remit to the Administrator has Seller the remainder of such Collections.
(c) On each Settlement Date, funds being held on deposit in the Liquidation Account shall be distributed by the Agent as follows:
(i) If such Settlement Date is not notified UGI a Termination Day, Collections held on deposit in the Liquidation Account for the benefit of any Purchaser pursuant to SECTIONS 1.4(b)(i), 1.4(b)(ii)(C) and 1.4(b)(ii)(D) shall be paid on behalf of Seller [ * ] SECOND to the applicable Purchaser Account in an amount equal to the sum of any accrued and unpaid Program Fees payable on such Settlement Date (or if any) and accrued and unpaid Discount payable on each Portion of the Investment of such AffiliatePurchaser with a Yield Period ending on such Settlement Date (if any) (provided that the right amount payable pursuant to retain this priority second shall not exceed the portion [ * ]), THIRD, to the applicable Purchaser Account in an amount equal to sum of the Collections set aside any accrued and unpaid Program Fees payable on such Settlement Date (if any) and accrued and unpaid Discount payable on each Portion of Investment of such Purchaser with a Yield Period ending on such Settlement Date (to extent not paid pursuant to clause (b)(isecond above) that represent and FOURTH, to the Issuer’s Share account of the Servicing Fee applicable Indemnified Party in an amount equal to the amount owed to such Indemnified Party not consisting of Discount, Investment, Program Fees or Premium;
(ii) If such Settlement Date 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 not a Termination Day and is a Settlement Date associated with the last day of each Settlement Periodany Yield Period of any Portion of the Investment of any Purchaser, the Administrator will notify Collections held on deposit in the Servicer by facsimile Liquidation Account for the benefit of such Purchaser pursuant to SECTIONS 1.4(f), 1.4(g) or 1.4(h) shall be paid on behalf of Seller to the applicable Purchaser Account in an amount equal to the lesser of (A) such Portion of the Investment and (B) the amount of such Collections;
(iii) If such Settlement Date is a Termination Day, Collections held on deposit in the Liquidation Account for the benefit of any Purchaser pursuant to SECTIONS 1.4(b)(i), 1.4(b)(ii), 1.4(b)(iii), 1.4(f), 1.4(g) or 1.4(h) shall be applied FIRST, to the Agent and the Insurer such Purchaser's Termination Share of the costs and expenses incurred by the Agent and the Insurer in enforcing their rights and the rights of the other Indemnified Parties hereunder (provided that the amount payable pursuant to this priority FIRST shall not exceed $100,000 per annum); SECOND, [ * ]; THIRD, to such Purchaser's Account in an amount equal to the sum of accrued and unpaid Discount payable on each Portion of the Investment of such * TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT Purchaser and accrued and unpaid Program Fees payable on such Settlement Date to such Purchaser (if any) (provided that the amount payable pursuant to this priority THIRD [ * ]); FOURTH, to such Purchaser's Account in an amount equal to such Purchaser's outstanding Investment; FIFTH, [ * ] SIXTH, to such Purchaser's Account in an amount equal to the sum of accrued and unpaid Discount payable on each Portion of the Investment of such Purchaser and any accrued and unpaid Program Fees (to the extent not paid pursuant to clause THIRD above) and SEVENTH, to the Agent and the Insurer such Purchaser's Termination Share of the costs and expenses of the Agent and [ * ] in enforcing their rights and the rights of the Indemnified Parties hereunder (to the extent not paid pursuant to clause FIRST above);
(iv) [ * ];
(v) if such Settlement Date is a Servicer Payment Date and neither AFC nor any of its Affiliates are the Servicer, Collections held on deposit in the Liquidation Account for the benefit of the Servicer pursuant to SECTION 1.4(b)(i) in respect of accrued and unpaid Servicing Fees for the prior calendar month shall be paid as the Servicer shall direct;
(vi) if the Investment and accrued Discount with respect to each Portion of Capital during Investment of each Purchaser 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, any amount remaining in the Liquidation Account after the application of CLAUSES (i)-(v) above shall be distributed to the Purchasers, [ * ], the Agent, the Purchaser Agents and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto hereunder [ * ] or any other Transaction Document (ratably in proportion to the respective amounts owed to each such Person); and
(vii) if such Settlement Period or portion thereofDate is a Fee Payment Date, Collections held on deposit in the Liquidation Account for the benefit of the Purchasers in respect of accrued and unpaid Program Fees for the prior calendar month shall be paid to the applicable Purchaser's Account. * TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(d) Upon receipt of funds deposited into the Administration any Purchaser's Account pursuant to clause (c)SECTION 1.4(c) with respect to such Purchaser's Participation, the Administrator applicable 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%Day, first FIRST to the Issuer payment in full (on a PARI PASSU basis) of all Discount and Program Fees with respect to such Purchaser's Participation previously due and remaining unpaid, SECOND, to the payment in full (on a PARI PASSU basis) of all accrued and unpaid Discount with respect to any Portion of Investment of such Purchaser with a Yield Period ending on the applicable Settlement Date and all accrued and unpaid Program Fees due on the applicable Settlement Date and THIRD to the payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each any Portion of Capital, and second, if the Servicer has set aside amounts in respect Investment of such Purchaser with a Yield Period ending on 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 applicable 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 day that is a Termination Day or Day, FIRST to the payment in full (on a day when the Purchased Interest exceeds 100%PARI PASSU basis) of all Discount and Program Fees with respect to such Purchaser's Participation previously due and remaining unpaid, first SECOND, to the Issuer payment in full (on a PARI PASSU basis) of all accrued and unpaid Discount with respect to any Portion of Investment of such Purchaser with a Yield Period ending on the applicable Settlement Date and all accrued and unpaid Program Fees due on the applicable Settlement Date, THIRD, to the payment in full of all accrued Discount with respect to each Portion of Capitalsuch Purchaser's Investment, 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 fourthFOURTH, if the Capital Investment and accrued Discount with respect to each Portion of Capital Investment of such Purchaser have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunderhereunder to such Purchaser. After If a Purchaser so directs, any of the Capital, Discount, fees payable pursuant foregoing payments owed to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall such Purchaser may be paid to the Seller for its own accountPurchaser Agent on its behalf.
(e) For the purposes of this Section SECTION 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defectivediscount, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount rebate or other adjustment made by the Originator, Seller or any Affiliate of the SellerServicer, or any setoff or dispute between the Seller Seller, Originator or any Affiliate of the Seller 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(gPARAGRAPHS A.(g) or (nA.(o) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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 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 to in accordance with the Receivables of Contract with such Obligor in and the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific ReceivablesCredit and Collection Policy; and
(iv) if and to the extent any Purchaser Agent, the Administrator Agent, [ * ] or the Issuer 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 the Issuer but rather to have been retained by the Seller and, accordingly, such Purchaser Agent, the Administrator Agent, [ * ] or the Issuersuch 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, time the Seller shall wish to cause the reduction of the Capital aggregate of the Investment of the Participations of the Revolving Purchasers (but not to commence the liquidation, or reduction to zero, of the entire Capital Investment of the Purchased InterestParticipations), 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 (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) Agent at least two Business Days 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 written notice thereof (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 including 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 each Revolving Purchaser's Distribution Percentages of the remainder of the Collections not represented by the Aggregate Participation (after giving effect to SECTION 1.4(b)(i), SECTION 1.4(b)(ii)(A) and SECTION 1.4(g)) to be reinvested transferred to the Liquidation Account and the Agent shall hold therein such amounts until the aggregate amount thereof not so reinvested shall equal the desired amount of reduction; , and
(iii) the Servicer Agent shall hold such Collections in trust the Liquidation Account for the Issuerbenefit of the Revolving Purchasers, and for payment to each Revolving Purchaser on a pari passu basis on the Administrator on (1) solely with respect next Settlement Date relating to any reduction described in subsections (f)(i)(BPortion of the Investment of such Revolving Purchaser [ * ] pursuant to SECTION 1.4(c)(ii) or (f)(i)(C) iii); provided that,
A. unless otherwise agreed by 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 payment, and the Capital shall be deemed reduced in the amount to be paid to the Administrator only when in fact finally so paid; provided, that Agent the amount of any such reduction with respect to each Purchaser shall be not less than $1,000,000 and shall be an integral multiple of $100,000., and the entire Investment
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 Issuerbenefit of the Purchasers, out of the Issuer’s Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter Fees accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s 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, on behalf of the Issuer, Seller the remainder of the Issuer’s Share of such Collections. Such remainder shall shall, (x) to the extent representing a return of the Aggregate Capital, be automatically reinvested (ratably among the Purchasers according to each Purchaser’s Capital) in Pool Receivables, and in the Related Security, Collections and other proceeds with respect theretothereto and (y) to the extent not representing a return of the Aggregate Capital, be paid to the Seller in respect of the Deferred Purchase Price for the Purchased Assets; provided, however, that if the Purchased 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 Issuer 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 Adjusted LC Participation Amount, as applicable, at such time), which amount shall either (A) be deposited ratably to the Administration Account (for the benefit of the Purchasers) or (B) be deposited in the LC Collateral Account, in each case, as applicable, on the next Settlement Date in accordance with Section 1.6(c); provided, further, that (x) in the case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to its Purchaser Agent of its refusal, pursuant to Section 1.12, to extend its Commitment hereunder (an “Exiting Purchaser”) then in either case (x) or (y), above, such Purchaser’s ratable share (determined according to outstanding Capital) of such remaining Collections shall not be reinvested or remitted to the Seller and shall 719921903 05109795 9 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 DayDay (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 Issuer benefit of the Purchasers the entire remainder of such Collections (or in the Issuercase of a Declining Conduit Purchaser or an Exiting Purchaser an amount equal to such Purchaser’s Share ratable share (determined according to outstanding Capital) of the 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 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 conditionsconditions or revocation of Declining Notice or Exiting Notice, as the case may be, and
(iv) release subject to Section 1.6(f), pay to the Seller (subject to Section 1.4(f)on behalf of the Administrator and the Purchasers) for its 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 proviso provisos to clause (ii) and clause (iii) above, plus (z) the Seller’s Share all reasonable and appropriate out-of-pocket costs and expenses of the Servicing Fee accrued Servicer for servicing, collecting and unpaid through such dayadministering the Pool Receivables.
(c) The Servicer shall 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 or, solely with respect to Collections held for the Issuer Purchasers pursuant to clause (f) Section 1.6(f)(iii), such other date as set forth in clause approved by the 719921903 05109795 10 Administrator with at least five (f)(iii5) for Business Days prior written notice to the Administrator of such payment), Collections held for the Issuer Purchasers pursuant to clause Section 1.6(b)(i), (b)(iii) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4or 1.6(f); provided, that if UGI Peabody or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI Peabody (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(iSection 1.6(b)(i) that represent the Issuer’s Share of represents the Servicing Fee is revoked, UGI Peabody (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(iSection 1.6(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 each Purchaser (or its Purchaser Agent on its behalf) will notify the Servicer by facsimile 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 Interest Assets Coverage Percentage does not exceed 100%, first to the Issuer Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) 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) 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 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 Assets Coverage Percentage exceeds 100%, first to the Issuer Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) in payment in full of all accrued Discount with respect to each Portion of Capitaland Fees, second to the Issuer 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 Interest Assets Coverage Percentage to 100%) (determined as if such Collections had been applied to reduce the aggregate outstanding Capital), third, to the LC Collateral Account for the benefit of the LC Bank and the LC Participants, (x) the amount (if any) necessary to cause the amount of cash collateral held in the LC Collateral Account (other than amounts representing LC Fee Expectation) to equal the aggregate outstanding amount of the LC Participation Amount (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Assets Coverage Percentage to 100%) (determined as if such Collections had been applied to reduce the aggregate outstanding amount of the LC Participation Amount) 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 Account), fourth, to the Servicer in payment in full of all accrued Servicing Fees, and fourthfifth, 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 amounts owing under clauses first through fourth above have been paid in full, to the IssuerPurchaser 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. 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 719921903 05109795 11 sixth, after the Seller and occurrence of the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in fullFinal Payout Date, all additional Collections with respect to the Purchased Interest Assets shall be paid to the Seller for its own accountaccount in payment of the Deferred Purchase Price for such Purchased Assets.
(e) For the purposes of this Section 1.41.6:
(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 1(gl(g) or (nm) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii)) above, or as otherwise required by applicable law 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 Administrator, any Purchaser Agent or the Issuer 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 Administrator, such Purchaser Agent or the Issuer such Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator Administrator, such Purchaser Agent or the Issuersuch 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, time the Seller shall wish to cause the reduction of the Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased InterestAggregate Capital), the Seller may do so as follows:
(i) the Seller shall give the Administrator Administrator, each Purchaser Agent 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“Paydown Notice”) at least two Business Days prior to the date of such reduction for any reduction of Aggregate 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 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 Issuerbenefit of the Administrator (for the benefit of each Purchaser), for payment to the Administrator by deposit into the Administration Account on (1) solely with respect to any reduction described in subsections (f)(i)(B) or (f)(i)(C) the next Weekly Settlement Date, Date immediately following the current Settlement Period 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 approved by the Administrator of such paymentand the Majority Purchaser Agents, and the 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 $1,000,000 300,000 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) The Servicer may, in its sole discretion, and shall at the direction of the Administrator (which direction may be given no more than once per week unless a Termination Event has occurred and is then continuing), deliver an Interim Report to the Administrator on any Business Day other than a Settlement Date. 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 or Unmatured Termination Event has occurred and is continuing and so long as the Facility Termination Date has not yet occurred, the Administrator shall promptly remit to the Servicer from the Lock-Box Account (or the LC Collateral Account, if applicable) the lesser of (i) the amount identified on such Qualifying Interim Report as Collections on deposit in the Lock-Box Account and/or LC Collateral Account in excess of the amount necessary to ensure that the Purchased Assets Coverage Percentage does not exceed 100% and (ii) the aggregate amount of available Collections then on deposit in the Lock-Box Accounts and the LC Collateral Account. For purposes of this clause (g), “Qualifying Interim Report” shall mean any Interim Report that satisfies each of the following conditions: (A) the Purchased Assets Coverage Percentage as set forth in such Interim Report shall not exceed 100%; (B) such Interim Report is calculated as of the immediately prior Business Day and (C) all of the information and calculations set forth in such Interim Report are
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 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 Issuerbenefit of each Purchaser Group, out of the Issuer’s Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of the Servicing Fee accrued through such day and not previously set asideaside and second, an amount equal to the Fees accrued and unpaid through such day,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of the Issuereach Purchaser Group, the remainder of the Issuer’s Share of such Collections. Such remainder shall shall, to the extent representing a return 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 theretoRights; 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 Issuer 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 into the account of the Administrator for the ratable benefit of the Purchasers (to be deposited by the Administrator in each Purchaser Agent’s account (for the benefit of its related Purchasers)) or to the LC Collateral Account on the next Settlement Date in accordance with Section 1.4(c); provided, further, that in the case of any Purchaser that has provided notice (an “Exiting Notice”) to its Purchaser Agent of its refusal, pursuant to Section 1.22, to extend its 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,
(iii) if such day is a Termination DayDay or a day on which the Commitment of an Exiting Purchaser terminates, set aside, segregate 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 Issuer ratable benefit of each Purchaser Group the entire remainder of such Collections (or, in the Issuercase of an Exiting Purchaser, an amount equal to such Purchaser’s Share ratable share of the Collectionssuch 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 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 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 of such subsequent satisfaction or waiver of conditionsto occur that is not a Termination Day (if any), and
(iv) release to the Seller (subject to Section 1.4(f)) , release to the Seller 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 or reinvested pursuant to clause clauses (i), the proviso to clause (ii) and clause (iii) above plus (zy) all other amounts then due and payable by the Seller’s Share of Seller under this Agreement to the Servicing Fee accrued Purchasers, the LC Bank, the Administrator and unpaid through such dayany other Indemnified Party or Affected Person.
(c) The Servicer shall shall, in accordance with the priorities set forth in Section 1.4(d) below, deposit into the Administration Account (or such other an account designated for each Purchaser by the Administrator)its Purchaser Agent, 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)Date, Collections held for the Issuer such Purchaser pursuant to clause Sections 1.4(b)(i), (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(iiii) and (iii) of and Section 1.4; 1.4(f), provided, however, that if UGI or an Affiliate thereof is to the Servicer, such day is not a Termination Day and extent any payments of Capital are required to be paid to the Administrator has not notified UGI (or such Affiliate) that for the right to retain the portion benefit of the Collections set aside Purchaser Agents pursuant to clause (b)(i) that represent the Issuer’s Share of foregoing sections, the Servicing Fee is revoked, UGI (or Servicer shall pay such Affiliate) may retain amounts to 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 asideAdministrator. On or prior to the last day of each Settlement Calculation Period, the Administrator each Purchaser Agent will notify the Servicer by facsimile email communication or other electronic delivery of the amount of Discount and Fees accrued with respect to each Portion of Capital during such Settlement Calculation Period or portion thereofthereof and payable on such date.
(d) Upon receipt of funds deposited into The Servicer shall distribute the Administration Account amounts described in Section 1.4(b) (to the extent not already distributed pursuant to clause (cSection 1.4(b)) on each Settlement Date, the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day Settlement Date that is not a Termination Day 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 does not exceed exceeds 100%, first to each Purchaser Agent ratably (based on the Issuer 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 (other than Servicing Fees) Fees with respect to the Purchasers within such Purchaser Agent’s Purchaser Group; it being understood that 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 Purchaser Agent shall distribute such amounts pursuant to clause (c), to the Servicer (payable in arrears on Purchasers within its Purchaser Group ratably according to Discount and Fees owed to each Settlement Date) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, such Purchaser; and
(ii) if such distribution occurs on a Settlement Date that is a Termination Day or on Day, a day when on which the Commitment of an Exiting Purchaser terminates or a day on which the Purchased Interest exceeds 100%: first, first to each Purchaser Agent ratably (based on the Issuer 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 each Portion of Capitalthe Purchasers within such Purchaser Agent’s Purchaser Group; second, second to the Issuer Administrator for the ratable benefit of each Purchaser (to be distributed by the Administrator 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 (ordetermined 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%), third, to the Servicer in payment in full of all accrued Servicing Fees, and ; fourth, if the Capital all amounts required to be paid and accrued Discount with respect deposited pursuant to each Portion preceding clauses first through third of Capital this clause (ii) have been reduced to zero, so paid and all accrued Servicing Fees payable to the Servicer have been paid deposited in full, to each Purchaser Group ratably (based on the Issueramounts 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, 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 or the Servicer to the Issuerhereunder; and fifth, 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 either (A) reduced or adjusted canceled as a result of (I) any defective, rejected, returned, repossessed or foreclosed returned goods or services, or any revision, cancellation, allowance, rebate, discount cash or other adjustment made by the Seller or any Affiliate of the Sellerdiscount, 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 dispute between credit in respect of any claim by the Seller or any Affiliate Obligor thereof (whether such claim arises out of the Seller and same or a related transaction or an Obligorunrelated 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 Section 1(gSections 1(j) or (n3(a) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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 fulltrust 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 clause (iSections 1.4(e)(i) or (ii), ) or as otherwise required by applicable law Law, the relevant Contract or the relevant Contractapplicable Eligible Supporting Letter of Credit, all Collections received from an a Payment Obligor of any Receivable shall be applied to the Receivables of such the applicable 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; andotherwise specified by the applicable Obligor;
(iv) if and to the extent the Administrator Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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, time the Seller shall wish wishes to cause the reduction of the Aggregate 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 deliver to the Administrator Administrator, each Purchaser Agent 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) a Paydown Notice at least two Business Days prior to the date of such reduction for any reduction of Capital greater than $20,000,000 the Aggregate Capital, and less than or equal to $50,000,000; and (C) at least three Business Days prior to the date of each such reduction for any reduction of Capital greater than $50,000,000Paydown Notice shall include, in each case such notice shall have been received by 3:00 p.m. New York City time on such date and 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 Issuerbenefit of each Purchaser ratably according to its Capital, for payment to the Administrator for the ratable benefit of each such Purchaser on the date specified in the Paydown Notice (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 (1as agreed to by the Administrator) Business Day prior written notice to the Administrator of such payment, and the Aggregate Capital (together with the Capital of each Purchaser) shall be deemed reduced in the amount to be paid to the Administrator for the ratable benefit of each such Purchaser only when in fact finally so paid; provided, that that:
(A) the amount of any such reduction shall be (if not less than $1,000,000 and 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 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 Issuerbenefit of each Purchaser Group, out of the Issuer’s Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter Fees accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s 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 the Issuereach Purchaser Group, the remainder of the Issuer’s Share of such Collections. Such remainder shall 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 theretoRights; 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 Issuer 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) on the next Settlement Date in accordance with Section 1.4(c); provided, further, that in the case of any Purchaser that has provided notice (an “Exiting Notice”) to its Purchaser Agent of its refusal, pursuant to Section 1.22, to extend its 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,
(iii) if such day is a Termination DayDay (or a day on which the Commitment of an Exiting Purchaser terminates), set aside, segregate aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer benefit of each Purchaser Group the entire remainder of such Collections (or, in the Issuercase of an Exiting Purchaser, an amount equal to such Purchaser’s Share ratable share of the Collectionssuch 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 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 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 conditionsconditions or revocation of Exiting Notice, as the case may be, and
(iv) release to the Seller (subject to Section 1.4(f)) , release to the Seller 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 or reinvested pursuant to clause clauses (i), the proviso to clause (ii) and clause (iii) above plus (zy) the Seller’s Share of the Servicing Fee accrued and unpaid through such dayday 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 shall, in accordance with the priorities set forth in Section 1.4(d) below, deposit into the Administration Account each applicable Purchaser Agent’s account (or such other account designated by the Administratorsuch applicable Purchaser or its Purchaser Agent), 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 paymentany Portion of Capital), Collections held for the Issuer each Purchaser pursuant to clause Sections 1.4(b)(i), (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(iiii) and (iii) of and Section 1.41.4(f); provided, that if UGI ▇▇▇▇▇ or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI ▇▇▇▇▇ (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI ▇▇▇▇▇ (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(iSection 1.4(b)(i) that represents the Issuer’s aggregate of each Purchasers’ Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set asideFee. On or prior to the last day of each Settlement 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 Settlement Yield Period or portion thereof.
(d) Upon receipt of funds deposited into The Servicer shall distribute the Administration Account pursuant to clause amounts described (cand at the times set forth) in 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 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 Issuer 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 (other than Servicing Fees) Fees with respect to each Portion of CapitalCapital 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 clause (b)(iSection 1.4(b)(i) and has not retained such amounts pursuant to clause (cSection 1.4(c), to the Servicer Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the Issuer’s aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day 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 Issuer 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 CapitalCapital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, second third to each Purchaser Agent ratably (based on the Issuer 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 Capital (orx) 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), thirdfourth, to the Servicer 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 payment 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 full clause (b) of all accrued Servicing Feesthe definition thereof or if a Termination Event is continuing, and fourthan 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 Issueramounts 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 hereunderor 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 CapitalCapital (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 payable pursuant to the Fee Letter Fees and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuereach Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, 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 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 adjustmentadjustment 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 Section 1(gSections 1(j) or (n3(a) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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 fullrespect 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 clause (iSections 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; and;
(iv) if and to the extent the Administrator Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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, time the Seller shall wish wishes to cause the reduction of the Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex C E (each, a “Paydown Notice”) (A) at least one Business Day prior to 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 $20,000,000; 25,000,000 (or such greater amount as agreed to by the Administrator and the Majority Purchaser Agents) and (B) at least two five (5) Business Days prior to the date of such reduction for any reduction of the Aggregate Capital greater than $20,000,000 25,000,000, and less than or equal to $50,000,000; and (C) at least three Business Days prior to the date of each such reduction for any reduction of Capital greater than $50,000,000Paydown Notice shall include, in each case such notice shall have been received by 3:00 p.m. New York City time on such date and 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 Issuerbenefit of each Purchaser, for payment to each such Purchaser (or its related Purchaser Agent for the Administrator benefit of such Purchaser) on (1) solely with respect to any reduction described in subsections (f)(i)(B) or (f)(i)(C) the next Weekly Settlement Date, Date (or (2such other date as agreed to by the Administrator) with respect to any reduction described in subsection (f)(i)(A), Portions of Capital maintained by such other date with at least one (1) Business Day prior written notice to Purchaser immediately following the Administrator of such paymentrelated 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 Administrator benefit of such Purchaser) only when in fact finally so paid; provided, that that:
(A) the amount of any such reduction shall not be not less than $1,000,000 and shall be an integral multiple of $100,000.100,000 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 Issuersuch Purchaser, out of the Issuer’s Share percentage of such Collections, firstCollections represented by such Receivable Interest, an amount equal to such Purchaser's Yield and Pro Rata Share of the 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, secondthat notwithstanding the preceding clause, an amount equal unless the -------- Administrative Agent shall have given notice at the direction of the Required Purchasers to the fees set forth in contrary, such amounts may be commingled with the Fee Letter accrued and unpaid through Collection Agent's other funds prior to their payment to the Purchasers;
(ii) if such dayday is neither a Liquidation Day nor a Provisional Liquidation Day nor an Optional Reduction Day nor a Mandatory Reduction Day, and thirdreinvest on behalf of such Purchaser (such reinvestment to be deemed a Purchase of a Receivable Interest by such Purchaser) the remainder of such percentage of Collections, to the extent funds are available thereforrepresenting a return of Capital, an amount equal to the Issuer’s Share by recomputation of the Servicing Fee accrued through such day and not previously set aside,
(ii) subject Receivable Interest pursuant to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, on behalf of the Issuer, the remainder of the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,2.03;
(iii) if such day is a Termination Liquidation Day or a Provisional Liquidation Day, refrain from making reinvestments and set aside, segregate aside and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer such Purchaser the entire remainder of the Issuer’s Share such percentage of the Collections; provided, that if amounts are set aside and held in trust on any Termination Provisional -------- Liquidation Day that is subsequently determined not to be a Liquidation Day thereupon shall, to the extent representing a return of the type described in clause (a) of the definition of “Termination Day” andCapital, 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 the preceding subsection (ii);
(iv) on if such day is an Optional Reduction Day, set aside and hold in trust for the day Purchaser the entire remainder of such subsequent satisfaction percentage of Collections or, if the 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, 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;
(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 waiver if the remainder of conditionssuch 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
(ivvi) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) of such 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 allocated pursuant to clause subsections (i), the proviso to clause ) through (iiv) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such dayabove.
(c) The Servicer Collection Agent shall deposit into the Administration Account (or such other an account designated by the Administrator)each Purchaser, on each Settlement Date (or solely 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 extent of the Collections with respect to Collections 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 Issuer pursuant first Business Day following receipt by the Collection Agent into an account designated by such Purchaser. The aggregate amount so deposited with respect to clause (f) a Receivable Interest owned by a Purchaser shall not exceed the sum of such other date as set forth in clause (f)(iii) for such payment)Purchaser's Capital of, Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day accrued Yield and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Pro Rata Share of the Servicing Fee is revokedCollection Agent Fee, UGI (or if any, on such Affiliate) may retain Receivable Interest plus the portion aggregate of any other amounts then owed by the Collections set aside pursuant Seller to clause (b)(i) that represents such Purchaser hereunder. If the Issuer’s Share of the Servicing Fee in payment 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 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 priority (whether or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause not such funds are sufficient to be distributed as follows:
(i) if pay in full all such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, amounts): first to the Issuer 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 Discount and fees (other than Servicing Fees) with respect unpaid Yield, third to each Portion of Capital, and second, if the Servicer has set aside amounts such Purchaser in respect reduction to zero of the Servicing Fee pursuant Aggregate Capital of such Purchaser, fourth to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) Purchaser in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunderto 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, Discount, fees payable pursuant to the Fee Letter Capital and Servicing Fees Yield with respect to the Purchased a Receivable Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, Purchasers or the Administrator or any other Indemnified Party or Affected Person Administrative Agent hereunder, have been paid in full, all additional Collections with respect to the Purchased such Receivable Interest shall be paid to the Seller for its own account.
(ed) For the purposes of this Section 1.42.04:
(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 revision, cancellation, allowance, rebate, cash discount or other adjustment made by the Seller or any Affiliate of the Selleran Originator, or any right of setoff or dispute between is exercised by the Seller or any Affiliate of the Seller and an ObligorObligor 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) if on any day either (w) any of the representations or warranties contained in Section 1(gSections 4.01(h) or (n4.01(n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not 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 clause 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 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 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 on its behalf 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, 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.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Georgia Pacific Corp)
Settlement Procedures. (a) The collection of the Pool Receivables Each Servicer 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 for the request benefit of the AdministratorSecured Parties (or, if so requested by the Administrative Agent, segregate in a separate account approved by the Administrator) Administrative Agent), for application in accordance with the Issuer, out priority of the Issuer’s Share of such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees payments set forth below, all Collections on Pool Receivables that are received by such Servicer or any SPV Entity or received in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of 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, on behalf of the Issuer, the remainder of the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect theretoany 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 Purchased Interest would exceed 100%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, then on any day and if so requested by the Servicer 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, for the avoidance of doubt, any Collections that are not so Released shall not reinvest, but shall set aside and hold be held in trust by the Servicers for the Issuer (and shall, at the request benefit of the Administrator, segregate Secured Parties or segregated and held in a separate account approved by the AdministratorAdministrative Agent unless and until such Collections are Released or distributed on a Settlement Date, in each case, in accordance with the terms hereof. On each Settlement Date, the Servicers (or, following its assumption of control of the Lock-Box Accounts,shall pay to the Administrative Agent) a portion and 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, that the payment of such fees, costs and expenses from Collections that, together on deposit in such Lock-Box Accounts on days other than Settlement Datesthe end of the most recently-ended Yield Period in accordance with the other Collections set aside pursuant terms of the applicable Lock-Box Agreements shall not constitute a breach or default under this Agreement for any purpose;
(ii) second, to this paragrapheach 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%,such Servicer) plus any applicable Canadian Sales Taxes thereon; 1751633015 14453710
(iii) if 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 Breakage Fees due to such day is a Termination Day, set aside, segregate Purchaser and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) other Purchaser Party for the Issuer the entire remainder of the Issuer’s Share of the Collections; providedimmediately preceding Yield Period, that plus, 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, thereafterapplicable, the conditions set forth in Section 2 amount of Exhibit II are satisfied 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 waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, andPurchaser Party;
(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)fourth, 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)(ix) or (fy) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuerbelow, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as followsapplicable:
(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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
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 Issuer, out of the Issuer’s Share of such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of 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, on behalf of the Issuer, the remainder of the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request benefit of the AdministratorSecured Parties (or, if so requested by the Administrative Agent during the continuance of an Event of Termination, segregate in a separate account approved designated by the Administrator) Administrative Agent, which shall be an account maintained and controlled by the Administrative Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Seller or received in any Lock-Box or Collection Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Seller a portion of such Collections (each such release of Collections, a “Release”); provided, further that, together pursuant to Section 3.1(d) of the Pledgor Purchaser Assignment, Collections on Pledged Receivables that are received by the Servicer or the Pledgor in any Pledgor Collection Account shall be applied in accordance with the priority of payments set forth below solely to the extent that Collections on Pool Receivables in each other Lock-Box or Collection Account are insufficient to make all distributions required in clauses (i) through (iv) below. On each Settlement Date, the Servicer (or, following its assumption of control of the Collection Accounts, the Administrative Agent) shall distribute any such Collections not previously Released 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 of Servicing Fees payable for any prior Yield Period to the extent such amount has not been distributed to the Servicer);
(ii) second, to the Administrative Agent, for the account of each Purchaser and other Purchaser Party (ratably, based on the amount then due and owing), all accrued and unpaid Yield, Fees and Breakage Fees due to such Purchaser and other Purchaser Party for the immediately preceding Yield Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such 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 aside pursuant forth in clause (x), (y) or (z) below, as applicable:
(x) prior to this paragraphthe occurrence of the Termination Date, shall to the extent that a Capital Coverage Deficit exists on such date, to the Administrative Agent, for the account of each Purchaser (ratably, based on the aggregate outstanding Capital of each Purchaser at such time) for the return 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 Deficit to 100%,zero ($0);
(iiiy) if on and after the occurrence of the Termination Date, to the Administrative Agent, for the account of each Purchaser (ratably, based on the aggregate outstanding Capital of each Purchaser at such day is a time) for the return in full of the aggregate outstanding Capital of such Purchaser at such time; or
(z) prior to the occurrence of the Termination Day, set aside, segregate and hold in trust (and shallDate, at the request election of the AdministratorSeller and in accordance with Section 2.02(d), segregate in a separate to the Administrative Agent, for the account approved by of each Purchaser (ratably, based on the Administratoraggregate outstanding Capital of each Purchaser at such time) for the Issuer the entire remainder return of all or any portion of the Issuer’s Share outstanding Capital 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, Purchasers at such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, andtime;
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c)fourth, to the Servicer Purchaser Parties, the Affected Persons and the Seller Indemnified Parties (payable in arrears ratably, based on each Settlement Date) in the amount due and owing at such time), for the payment in full of all other Seller Obligations then due and owing by the Issuer’s Share of accrued Servicing Fees so set asideSeller to the Purchaser Parties, the Affected Persons and the Seller Indemnified Parties; and
(iiv) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%fifth, first prior to the Issuer in payment in full Spin-Off Date, on the first Settlement Date of all accrued Discount with respect to each Portion of Capitalcalendar quarter, second to the Issuer Pledgor for the payment of the accrued Guaranty Fee as defined in payment in full Section 1.3 of Capital the Pledgor Purchaser Assignment;
(orvi) sixth, if such day is not a Termination Dayprior to the Spin-Off Date, to the Pledgor, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable due pursuant to the Fee Letter and Servicing Fees with respect to penultimate sentence of Section 4.03 for the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuerimmediately preceding Yield Period; and
(vii) seventh, the Administrator or any other Indemnified Party or Affected Person hereunderbalance, have been paid in fullif any, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
. Amounts payable pursuant to clauses first through sixth above shall be paid first from available Collections on Sold Receivables and other Sold Assets, and second, to the extent necessary in order to make all such payments in full, from Collections on Unsold Receivables and other Seller Collateral (eincluding the Pledged Collateral). The Seller’s right to receive payments (if any) For from time to time pursuant to clause seventh above shall, to the purposes of this Section 1.4:
(i) if extent arising from Collections on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defectiveSold Receivables, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by constitute compensation to the Seller or any Affiliate of for the Seller, or any setoff or dispute between the Seller or any Affiliate ’s provision of the Seller and an Obligor, Guaranty of the Purchaser Parties’ interests in the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereofCollateral.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Warner Bros. Discovery, Inc.)
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 So long as no Level II Downgrade Event shall have occurred, the Collection Agent shall, on each day Deposit Date, with respect to Collections deposited in any of the Lock-Box Accounts on which Collections of Pool Receivables are such Deposit Date or received (or deemed received) by the Seller or Collection Agent on such Deposit Date (in the Servicer:following order and priority):
(i) with respect to each Receivable Interest, set aside and hold in trust (and shalland, at the request of the AdministratorProgram Agent following the occurrence and during the continuation of a Collection Agent Default, segregate in a separate account approved by the Administratorsegregate) for the IssuerInvestors or the Banks that hold such Receivable Interest and for the Investor Agents, out of the Issuer’s Share percentage of such Collections, firstCollections represented by such Receivable Interest, an amount equal to the Discount Yield, Fees and Collection Agent Fee accrued through such day for each Portion of Capital such Receivable Interest and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of the Servicing Fee accrued through such day 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, Seller on behalf of the Issuer, Investors or the remainder of Banks that hold such Receivable Interest the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion percentage of such Collections thatrepresented by such Receivable Interest, together with to the other Collections set aside extent representing a return of Capital, by recomputation of such Receivable Interest pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,Section 2.03;
(iii) if such day is a Termination DayLiquidation Day for any one or more Receivable Interests, set aside, segregate 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 Issuer Investors and/or the entire remainder 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 Issuer’s Share Receivable Interests, the percentage of such Collections represented by such Receivable Interests, and (y) if such day is a Liquidation Day for all of the CollectionsReceivable Interests, all of the remaining Collections (but not in excess of the Capital of such Receivable Interests); provided, provided that if amounts are set aside and held in trust on any Liquidation Day occurring prior to the Termination Day of Date, and thereafter prior to the type described in clause (a) of the definition of “Termination Day” and, thereafter, next succeeding Settlement Date the conditions set forth in Section 2 of Exhibit II 3.02 are satisfied or waived by the AdministratorProgram Agent and the Investor Agents, such previously set-set aside amounts shall shall, to the extent representing a return of Capital, be reinvested in accordance with clause 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 (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) both of such amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) and of the amounts that are required to be set aside pursuant to clause subsection (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such dayabove.
(c) If a Level II Downgrade Event shall have occurred and be continuing, the Collection Agent shall comply with the following:
(I) On each Deposit Date during the Revolving Period, the Collection Agent shall, by no later than 3:00 P.M. (New York City time), deliver to the Program Agent and the Investor Agents the Daily Report for such date. If the Collection Agent shall fail to deliver the Daily Report on any Deposit Date during the Revolving Period, the Collection Agent shall not be permitted to withdraw any amounts from the Lock-Box Accounts on any date thereafter unless and until the Collection Agent shall be in compliance with this subsection (I) (but subject to the right of the Agent to prohibit withdrawals by the Collection Agent from the Lock-Box Accounts to the extent provided in Section 6.03).
(II) On the first Business Day following each Deposit Date during the Revolving Period, if the Daily Report for such date shows that no Cure Period shall have occurred and be continuing, the Collection Agent shall, in the following order:
(i) based on the Allocation Percentage on such day, determine the amount of Purchaser Collections and Seller Collections;
(ii) withdraw from the Lock-Box Accounts and from Collections of Pool Receivables which the Collection Agent received on such Deposit Date and set aside and hold in trust (and, at the request of the Program Agent, segregate) for the Investors and Banks that hold Receivable Interests, out of Purchaser Collections, an amount equal to the Yield, Fees and Collection Agent Fee accrued through such day for the Receivable Interests and not previously withdrawn and set aside;
(iii) withdraw from the Lock-Box Accounts and from Collections of Pool Receivables which the Collection Agent received on such Deposit Date and release to the Seller the remainder of Purchaser Collections, in each instance to the extent representing a return of Capital, to be reinvested with the Seller in Receivable Interests; provided that, if immediately following any such reinvestment such Deposit Date would be a Pool Non-compliance Date, the Collection Agent shall retain all such remaining Collections in (or, to the extent the Collection Agent has received any such Collections, redeposit such Collections into) the Lock-Box Accounts (and deposit the other such remaining Collections received by it into the Lock-Box Accounts) to be applied pursuant to Section 2.04(c)(III)(iii); and
(iv) remit the Seller Collections to the Seller.
(III) On the first Business Day following each Deposit Date during the Revolving Period, if the Daily Report for such date shows that a Cure Period shall have occurred and be continuing, the Collection Agent shall, in the following order:
(i) based on the Allocation Percentage on such day, determine the amount of Purchaser Collections and Seller Collections;
(ii) withdraw from the Lock-Box Accounts and from Collections of Pool Receivables which the Collection Agent received on such Deposit Date and set aside and hold in trust (and, at the request of the Program Agent, segregate) for the Investors and Banks that hold Receivable Interests, out of Purchaser Collections, an amount equal to the Yield, Fees and Collection Agent Fee accrued through such day for the Receivable Interests and not previously withdrawn and set aside;
(iii) remit to the Cash Collateral Account from the Lock-Box Accounts and from Collections of Pool Receivables which the Collection Agent received on such Deposit Date an amount equal to the lesser of (x) the sum of the remaining Collections in the Lock-Box Accounts (and Collections received by the Collection Agent from the Lock-Box Accounts on such Deposit Date) and the remaining Collections of Pool Receivables received by it on such Deposit Date and (y) an amount equal to the excess of the Required Net Receivables Pool Balance over the Net Receivables Pool Balance;
(iv) withdraw from the Lock-Box Accounts and from Collections of Pool Receivables which the Collection Agent received on such Deposit Date and release to the Seller the remainder of Purchaser Collections, in each instance to the extent representing a return of Capital, to be reinvested with the Seller in Receivable Interests (for purposes of determining the remainder of Purchaser Collections, any Collections which have previously been applied pursuant to Section 2.04(c)(III)(iii) shall be deemed to be first Seller Collections and then Purchaser Collections); and
(v) remit the Seller Collections to the Seller.
(IV) On the first Business Day following each Deposit Date during the Liquidation Period, the Collection Agent shall, by no later than 3:00P.M. (New York City time), remit to each Investor Agent’s Account for each Investor Agent all Collections held for such Investor Agent, the Investors and/or the Banks in its Group in the Lock-Box Accounts and such Investor Agent’s pro-rata portion of all Collections of Pool Receivables which the Collection Agent received on such Deposit Date.
(d) The Servicer Collection Agent shall deposit into the Administration Investor Agent’s Account for each Investor Agent (or such other account designated by the Administrator), i) on each Settlement Date (or solely with respect to Date, Collections held for such Investor Agent, the Issuer Investors and/or the Banks in its Group during the prior calendar month pursuant to clause Sections 2.04(b)(i), 2.04(c)(II)(ii) and 2.04(c)(III)(ii), (fexcluding, however, so long as the Originator is the Collection Agent, the Collection Agent Fee) and (ii) on the Settlement Date for each Receivable Interest, Collections held for such Investor Agent, the Investors and/or the Banks in its Group that relate to such Receivable Interest pursuant to Section 2.04(b) or (c) (other date than as set forth in clause (f)(iii) i)). After the occurrence and during the continuation of Level I Downgrade Event which is not a Level II Downgrade Event, on the Business Day immediately following the delivery of any Weekly Report which sets forth a Pool Non-Compliance Date as of the close of business on the last Business Day of the preceding Week, and on each Business Day thereafter until a Pool Non-Compliance Date no longer exists, the Collection Agent shall deposit into the Investor Agent’s Account for each Investor Agent Collections set aside for such payment)Investor Agent, Collections held for the Issuer Investors and/or Banks in its Group 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; provided2.04(b), provided that if UGI or the aggregate amount deposited pursuant to this sentence with respect to any Weekly Report shall not exceed an Affiliate thereof amount such that, after giving effect to the application of such amount to the reduction of Capital, the sum of the Receivable Interests is the Servicer, such day equal to 100%. The Collection Agent shall pay to itself on each Settlement Date which is not a Termination Liquidation Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion Receivable Interest on account of Capital during accrued Collection Agent Fee. On any Business Day on which funds are on deposit in the Cash Collateral Account, the Collection Agent (i) shall, upon written notice from the Program Agent or any of the Investor Agents, and may (if the funds in the Cash Collateral Account exceed $10,000,000), upon written notice to the Program Agent and the Investor Agents, remit such Settlement Period funds from the Cash Collateral Account to the Investor Agent’s Account for each Investor Agent, such remittance to be applied as a reduction of Capital, or (ii) may, following delivery of the Weekly Report or Daily Report to the Program Agent, as the case may be, withdraw from the Cash Collateral Account and remit to the Seller all or a portion thereofof the funds in the Cash Collateral Account; provided that such Weekly Report or Daily Report, as the case may be, shall state that, after taking account of the proposed withdrawal, the Net Receivables Pool Balance on such day will be equal to or greater than the Required Net Receivables Pool Balance, and such Weekly Report or such Daily Report, as the case may be, shall set forth the calculation supporting such statement.
(de) Upon receipt of funds deposited into the Administration Account pursuant to clause (c)Investor Agent’s Account, the Administrator relevant Investor Agent shall cause such funds to be distributed distribute them as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%Liquidation Day, first to the Issuer Investors or the Banks in its Group that hold the relevant Receivable Interest and to such Investor Agent in payment in full of all accrued Discount Yield and fees (other than Servicing Fees) with respect to each Portion of Capital, 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), then to the Servicer (payable in arrears on each Settlement Date) Collection Agent in payment in full of all accrued Collection Agent Fee payable by the Issuer’s Share Investors and Banks in its Group; provided, that if such distribution related to Collections remitted from the Cash Collateral Account, such distribution shall be paid to the Investors and the Banks in its Group that hold the Receivable Interest in respect thereof, in reduction of accrued Servicing Fees so set aside, andCapital.
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%Liquidation Day, first to the Issuer Investors or the Banks in its Group that hold the relevant Receivable Interest and to such Investor Agent in payment in full of all accrued Discount with respect to each Portion of CapitalYield and Fees, second to the Issuer such Investors and/or Banks in reduction to zero of all Capital, third to such Investors, Banks or such Investor Agent in payment in full of Capital (orany other amounts owed by the Seller hereunder, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, and fourth to the Servicer Collection Agent 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 Collection Agent Fee payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunderInvestors and Banks in its Group. After the Capital, DiscountYield, fees payable pursuant to the Fees and Collection Agent Fee Letter and Servicing Fees with respect to the Purchased a Receivable Interest, and any other amounts payable by the Seller and the Servicer to the IssuerInvestors, the Administrator Banks, the Investor Agents or any other Indemnified Party or Affected Person the Program Agent hereunder, have been paid in full, all additional Collections with respect to the Purchased such Receivable Interest shall be paid to the Seller for its own account.
(ef) For the purposes of this Section 1.42.04:
(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 rejected or foreclosed goods returned merchandise or services, or any revision, cancellation, allowance, rebatecash discount, discount for quick payment or other adjustment made by the Seller or any Affiliate of the SellerOriginator, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligorsetoff, 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 upon each purchase or reinvestment (A) any of the representations or warranties contained in Section 1(g4.01(h) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not no longer true with respect to any Pool ReceivableReceivable or (B) the Investors or the Banks, as the case may be, shall not acquire a valid and perfected first priority undivided percentage ownership interest to the extent of the pertinent Receivable Interest in each Pool Receivable then existing or thereafter arising and in the Related Security and Collections with respect thereto, then 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 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 Receivable 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 Administrator Program Agent, any of the Investor Agents, the Investors or the Issuer Banks 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 on its behalf 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 Program Agent, such Investor Agent, the Investors or the IssuerBanks, 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.
(fg) If In the event that the Program Agent or any Investor Agent receives Collections in respect of any Receivable directly from an Obligor, such Agent shall, at any timeits option, 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:
either (i) promptly forward such Collections to the Seller shall give the Administrator Collection Agent (and the Servicer written notice Collection Agent shall apply such Collections in the form of Annex C (Aaccordance with this Section 2.04) 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 promptly apply such Collections in trust for the Issuer, for payment to the Administrator on (1) solely accordance 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 payment, and the Capital shall be deemed reduced this Section 2.04 in the amount to be paid to the Administrator only when in fact finally so paid; provided, same manner that the amount of any Collection Agent would apply such reduction shall be not less than $1,000,000 and shall be an integral multiple of $100,000Collections.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Lexmark International Inc /Ky/)
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) The Servicer shallWith 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 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 basis of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer, out amount of the Issuer’s 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 CollectionsLender's Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, first, an amount equal to then such Lender shall forthwith (but in no event later than the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees time set forth in the Fee Letter accrued and unpaid through such day, and third, preceding sentence) transfer to Agent by wire transfer in immediately available funds the extent funds are available therefor, an amount equal to of the Issuer’s increase. If the amount of a Lender's Pro Rata Share of the Servicing Fee accrued through such day and not previously set aside,
(ii) subject to Section 1.4(f), if such day outstanding Loans in any Settlement Period is not a Termination Day, remit to less than the Seller, on behalf of the Issuer, the remainder of the Issuer’s Share amount of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,
(iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer the entire remainder of the Issuer’s Lender's Pro Rata Share of the Collections; providedoutstanding Loans for the previous Settlement Period, that if amounts are set aside and held Agent shall forthwith transfer to such Lender by wire transfer in trust on any Termination Day immediately available funds the amount of the type described in clause (a) decrease. The obligation of each 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, Lenders to transfer such previously set-aside amounts funds and effect such settlement shall be reinvested in accordance with clause (ii) on irrevocable and unconditional and without recourse to or warranty by Agent. Each of Agent and Lenders agrees to ▇▇▇▇ its books and records at the day end of such subsequent satisfaction or waiver each Settlement Period to show at all times the dollar amount 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 Pro Rata Share of the Servicing Fee accrued outstanding Loans and unpaid through Letter of Credit Accommodations. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans which have been funded by such dayLender.
(c) The Servicer To the extent that Agent has made any such amounts available and the settlement described above shall deposit into 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 any time require each Lender to provide Agent with immediately available funds representing its Pro Rata Share of each Loan, prior to Agent's disbursement of such Loan to or for the Administration Account (or benefit of Borrower. In such other account designated event, all Loans under this Agreement shall be made by the Administrator), on each Settlement Date (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 any Lender be increased or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date decreased as set forth in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion result of the Collections set aside pursuant default by any other Lender in the other Lender's obligation to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereofmake a Loan requested hereunder.
(d) Upon receipt of funds deposited into the Administration Account If Agent is not funding a particular Loan pursuant to clause (c)Section 3.11(a) above on any day, Agent may assume that each Lender will make available to Agent such Lender's Pro Rata Share of the Administrator Loan requested or otherwise made on such day and Agent may, in its discretion, but shall not be obligated to, cause such funds a corresponding amount to be distributed as follows:
(i) if made available to Borrower on such distribution occurs on day. If Agent makes such corresponding amount available to a day that Borrower and such corresponding amount is not a Termination Day and 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 Purchased date such payment was due until the date such amount is paid to Agent at the Interest does Rate. During the period in which such Lender has not exceed 100%paid such corresponding amount to Agent, first notwithstanding anything to the Issuer contrary contained 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 this Agreement or any 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 Dayother Financing Agreements, the amount necessary so advanced by Agent to reduce the Purchased Interest Borrower shall, for all purposes hereof, be a Loan made by Agent for its own account. Upon any such failure by a Lender to 100%)pay Agent, third, to the Servicer in payment in full Agent shall promptly thereafter notify Borrower of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller such failure and the Servicer Borrower shall immediately pay such corresponding amount 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 Agent for its own account.
(e) For the purposes of Nothing in this Section 1.4:
(i) if 3.11 or otherwise in this Agreement or the other Financing Agreements shall be deemed to require Agent to advance funds on any day the Outstanding Balance behalf of any Pool Receivable is reduced Lender or adjusted to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that Agent or Borrower may have against any Lender 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 default by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it Lender hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
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 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, at any time while a Termination Event has occurred and is continuing, segregate in a separate account approved by the Administrator) for the Issuerbenefit of the Purchasers, out of the Issuer’s Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the each Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s aggregate 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 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 the IssuerPurchasers, the remainder of the Issuer’s Share of such Collections. Such remainder shall shall, to the extent representing a return on the Aggregate Capital, be automatically reinvested reinvested, ratably, according to each Purchaser’s Capital, in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect thereto; provided, howeverthat if, that if after giving effect to any proposed reinvestment, the Purchased Interest would exceed 100%, then the Servicer shall not remit such remainder to the Seller or reinvest, but shall set aside and hold in trust for the Issuer 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%% (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, according to the aggregate of the Capital of all Purchasers in each Purchaser Group, distributed to each Purchaser Agent (for the benefit of its related Purchasers)) on the next Settlement Date in accordance with Section 1.4(c); provided, further, that in the case of any Purchaser 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 Administrator of its refusal, following any request by the Seller to extend the then Scheduled Commitment Termination Date, to extend its Commitment hereunder (an “Exiting Purchaser”), then such Purchaser’s ratable share (determined according to outstanding Capital) of Collections shall not be reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below,
(iii) if such day is a Termination DayDay (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) for the Issuer ), the entire remainder of such Collections (or in the Issuercase of an Exiting Purchaser, an amount equal to such Purchaser’s Share ratable share of the Collectionssuch 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 are received by such Purchasers in respect of this parenthetical and thereafter Collections shall be set aside and held for such Purchaser ratably in trust on any Termination Day respect of the type described in clause its Capital (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditionsas recalculated)), and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (xw) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) ), plus (yx) the amounts that are required to be set aside pursuant to clause (i), the proviso provisos to clause (ii) and clause (iii) ), plus (zy) the Seller’s Share of the Servicing Fee accrued and unpaid through such dayday 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 shall, in accordance with the priorities set forth in Section 1.4(d), deposit into the Administration Account Account, no later than noon (or such other account designated by the Administrator), New York time) 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)Date, Collections held for the Issuer Purchasers pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer Purchasers pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI ▇▇▇▇▇ Corning Sales or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI ▇▇▇▇▇ Corning Sales (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI ▇▇▇▇▇ Corning Sales (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 asideFee. On or prior to the last day of Business Day immediately preceding each Settlement PeriodDate, the Administrator each Purchaser Agent will notify the Servicer 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 such the related Settlement Period or portion thereofthereof 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) Upon The Administrator shall distribute the amounts described in clause (c) above promptly following receipt of such funds deposited into the Administration Account pursuant to clause (cbut no later than 5:00 p.m. (New York time), 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 each Purchaser Agent ratably according to the Issuer 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 and fees (other than Servicing Fees) with respect to each Portion of CapitalCapital 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 (or, with respect to any Tranched Capital Purchaser in such Purchaser Agent’s Purchaser Group, in accordance with Exhibit VI), 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 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 first, to the Issuer 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 CapitalCapital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group and all accrued Fees, second third, to each Purchaser Agent ratably according to the Issuer Actual Share of the Exposure of such Purchaser Agent’s Purchaser Group (for the benefit of the relevant Purchasers in payment such Purchaser Agent’s Purchaser Group) in full an amount, for each Purchaser Group, equal to such Purchaser Group’s Actual Share of Capital 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, thirdthat 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 Servicer LC Collateral Account for the benefit of any LC Bank in payment such Purchaser Agent’s Purchaser Group, to cash collateralize such LC Bank’s LC Participation Amount until the amount of cash collateral held in full such LC Collateral Account equals 100% of all accrued Servicing Feesthe 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 (or, with respect to any Tranched Capital Purchaser in such Purchaser Agent’s Purchaser Group, in accordance with Exhibit VI), 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 Issueramounts 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 Capital, Aggregate Discount, fees payable pursuant to the Fee Letter Letters and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuereach Purchaser Group, the Administrator or any other Indemnified Party or Affected Person hereunder, 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 SellerSeller 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 Section 1(gSections l(j) or (n3(a) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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 fullfull 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 Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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, time the Seller shall wish to cause the reduction of the Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased InterestAggregate Capital), the Seller may do so as follows:
(i) the Seller shall give the Administrator Administrator, each Purchaser Agent and the Servicer written notice in substantially the form of Annex C (Aeach, a “Paydown Notice”) at least one no later than noon (New York time) on the 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 reduction, 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 $50,000,000Paydown Notice shall include, in each case such notice shall have been received by 3:00 p.m. New York City time on such date and 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, 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 Issuer, 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 (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 designated by the Servicer in consultation with the Seller upon two Business Days’ notice thereof by the Servicer to the Administrator of such paymentand 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; 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.i
Appears in 1 contract
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 Issuer, out of the Issuer’s Share of such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of 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, on behalf of the Issuer, the remainder of the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shallAdministrative Agent, at for the request benefit of the AdministratorSecured Parties (or, if so requested by the Administrative 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 Date;
(ii) second, to each Purchaser and other Collections 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 11.01 in respect of such payments;
(iii) third, as set aside pursuant forth in clause (A), (B) or (C) below, as applicable:
(A) prior to this paragraphthe occurrence of the Termination Date, shall 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);
(iiiB) if such day is a Termination Day, set aside, segregate on and hold in trust (and shall, at after the request occurrence of the AdministratorTermination Date, segregate in a separate account approved by to each Purchaser (ratably, based on the Administratoraggregate outstanding Capital of each Purchaser at such time) for the Issuer the entire remainder of the Issuer’s Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share aggregate outstanding Capital of accrued Servicing Fees so set aside. On such Purchaser at such time; or
(C) prior to the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile occurrence 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 Termination Date, at 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 election of the Servicing Fee pursuant to clause (b)(i) Seller and has not retained such amounts pursuant to clause (cin accordance with Section 2.02(d), to the Servicer (payable in arrears on each Settlement Date) in payment in full of all or any portion of the Issuer’s Share outstanding Capital of accrued Servicing Fees so set asidethe 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
(iivi) if such distribution occurs on a Termination Day or on a day when sixth, 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 (orbalance, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), thirdany, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account. 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.
(eb) 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 deemed not to have 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 1.43.01:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted cancelled as a result of (A) any defective, rejected, returned, repossessed or foreclosed goods or services, or (B) any revision, cancellation, allowance, rebate, credit memo, discount or other adjustment made by the Seller any Seller-Related Party or any Affiliate of the Sellerthereof or (C) any setoff, or any setoff counterclaim or dispute between the Seller any Seller-Related Party or any Affiliate of the Seller 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 amount of positive difference between (A) such Pool Receivable’s Outstanding Balance prior to such reduction and (B) its Outstanding Balance after such reduction, and the Seller shall within two (2) Business Days pay to a Collection Account or adjustmentas otherwise directed by the Administrative Agent at such time, for the benefit of the Purchaser Parties for application pursuant to Section 3.01(a), an amount equal to (x) if such reduction occurs prior to the Termination 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 on (A) any day any of the representations representation or warranties warranty in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 6.01 is not true with respect to any Pool ReceivableReceivable 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 Receivable’s Outstanding Balance in full, 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 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 Potential 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 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) except as provided in clause clauses (i) or (ii), ) above or as otherwise required by applicable law 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 Administrative Agent or the Issuer 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 Insolvency Relief Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Fortrea Holdings Inc.)
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) pay to the Originator and/or EDS, as the case may be, any such Collections which are identified as amounts referred to in the second sentence of the definition of “Outstanding Balance”;
(ii) 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 IssuerInvestors or the Banks that hold such Receivable Interest, out of the Issuer’s Share percentage of such Collections, firstCollections represented by such Receivable Interest, an amount equal to the Discount Yield, Fees and Collection Agent Fee accrued through such day for each Portion of Capital such Receivable Interest and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of the Servicing Fee accrued through such day and not previously set aside,;
(iiiii) 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, Seller on behalf of the Issuer, Investors or the remainder of Banks that hold such Receivable Interest the Issuer’s Share percentage of such Collections. Such remainder shall be automatically reinvested in Pool ReceivablesCollections represented by such Receivable Interest, to the extent such Collections represent a return of Capital, by recomputation of such Receivable Interest pursuant to Section 2.03, and in pay to the Related SecuritySeller the amount so reinvested;
(iv) if such day is a Liquidation Day for any one or more Receivable Interests, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shalland, at the request of the AdministratorAgent, segregate in a separate account approved by segregate) for the Administrator) a portion of Investors or the Banks that hold 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%,
Receivable Interests (iiiA) if such day is a Termination Liquidation Day for less than all of the Receivable Interests, the percentage of such Collections represented by such Receivable Interests as to which such day is a Liquidation Day, set aside, segregate and hold in trust (and shall, at the request B) if such day is a Liquidation Day for all of the AdministratorReceivable Interests, segregate all of the remaining Collections (but in a separate account approved the case of the circumstances in both clause (A) and clause (B) above, not in excess of the Capital of such Receivable Interests and any other amounts payable by the Administrator) for the Issuer the entire remainder of the Issuer’s Share of the CollectionsSeller hereunder); provided, provided that if amounts are set aside and held in trust on any Liquidation Day occurring prior to the Termination Day of Date as to such Receivable Interests, and thereafter prior to the type described in clause (a) of the definition of “Termination Day” and, thereafter, Settlement Date for such Fixed Period the conditions set forth in Section 2 of Exhibit II 3.02 are satisfied or waived by the AdministratorAgent, such previously set-set aside amounts shall shall, to the extent representing a return of Capital, be reinvested in accordance with clause the preceding subsection (ii) on the day of such subsequent satisfaction or waiver of conditions, ; and
(v) during such times as amounts are required to be reinvested in accordance with the foregoing subSection (iii) or the proviso to subSection (iv) ), release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) both of such amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) and of the amounts that are required to be set aside pursuant to clause (i), the proviso to clause subSection (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such dayabove.
(c) The Servicer Collection Agent shall deposit into the Administration Account (or such other account designated by the Administrator)Agent’s Account, on each the 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)each Receivable Interest, Collections held on that Settlement Date for the Issuer Investors or the Banks that relate to such Receivable Interest pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof2.04(b).
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c)Agent’s Account, the Administrator Agent shall cause such funds to be distributed distribute them as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%Liquidation Day, first to the Issuer Investors or the Banks that hold the relevant Receivable Interests ratably in payment in full of all accrued Discount Yield 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) Agent in payment in full of the Issuer’s Share accrued Fees and then to the Collection Agent in payment in full of all accrued Servicing Fees so set aside, andCollection Agent Fee.
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%Liquidation Day, first to the Issuer Investors or the Banks that hold the relevant Receivable Interests ratably in payment in full of all accrued Discount with respect to each Portion of Capital, second to Yield and the Issuer Agent in payment in full of Capital (orthe accrued Fees, if second to such day is not a Termination DayInvestors or Banks in reduction to zero of all Capital, third to such Investors, Banks or the amount necessary to reduce Agent in payment of any other amounts owed by the Purchased Interest to 100%)Seller hereunder, third, and fourth to the Servicer Collection Agent in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunderCollection Agent Fee. After the Capital, DiscountYield, fees payable pursuant to the Fees and Collection Agent Fee Letter and Servicing Fees with respect to the Purchased a Receivable Interest, and any other amounts payable by the Seller and the Servicer to the IssuerInvestors, the Administrator Banks or any other Indemnified Party or Affected Person the Agent hereunder, have been paid in fullfull and any contingent obligations of the Agent under any Lock-Box Agreement have been released, all additional Collections with respect allocable to the Purchased such Receivable Interest shall be paid by the Collection Agent and the Agent, to the extent each of them holds additional Collections, to the Seller for its own account.
(e) For the purposes of this Section 1.42.04:
(i) if on any day the Outstanding Balance of any a Pool Receivable is reduced becomes (in whole or adjusted as in part) 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 ObligorDiluted Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustmentDiluted Receivable;
(ii) if on any day any of the representations or warranties contained in Section 1(g4.01(h) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not no longer true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause subSection (i) or (ii) of this Section 2.04(e), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable 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 Administrator Agent, the Investors or the Issuer Banks 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 on its behalf 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 Agent, the Investors or the IssuerBanks, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the 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 Within three Business Days prior after the end of each Fixed Period in respect of which Yield is computed by reference to the date of such reduction for any reduction of Capital greater than $50,000,000Investor Rate, in each case such notice the Agent shall have been received by 3:00 p.m. New York City time on such date and shall include furnish the Seller with an invoice setting forth the amount of the accrued and unpaid Yield and Fees for 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 Issuer, for payment to the Administrator on (1) solely Fixed Period 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 Receivable Interests held by the Administrator of such payment, Investors and the 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 $1,000,000 and shall be an integral multiple of $100,000Banks.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Electronic Data Systems 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 Issuerbenefit of each Purchaser Group, out of the Issuer’s Share of such Collections, first, 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, second, (x) an amount equal to the fees set forth in the Fee Letter Fees accrued and unpaid through such day, and third, to the extent funds are available therefor, (y) an amount equal to the Issuer’s Purchasers’ Share of the Servicing Fee accrued through such day and not previously set aside,aside 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 the IssuerPurchasers, the remainder of the Issuer’s Share of such Collections. Such remainder shall shall, to the extent representing a return on the Aggregate Capital, be automatically reinvested reinvested, ratably according to each Purchaser’s Capital, in Pool Receivables, Receivables and in the Related Security, Collections and other proceeds with respect 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 remit such remainder to the Seller or reinvest, but shall set aside and hold in trust for the Issuer 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%,% 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) for distribution and application on the next Settlement Date in accordance with Section 1.4(d); provided, further, that (x) in the case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has delivered an Exiting Notice to the Administrator, the Seller and each Purchaser (such Purchaser, an “Exiting Purchaser”) then in either case set forth in subclauses (x) or (y), above, such Collections shall not be reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below; 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 DayDay (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 Issuer benefit of each Purchaser Group the entire remainder of such Collections (or in the Issuercase of a Declining Conduit Purchaser or an Exiting Purchaser an amount equal to such Purchaser’s Share ratable share of the Collectionssuch 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 are received by such Purchaser in respect of this parenthetical and thereafter Collections shall be set aside and held for such Purchaser ratably in trust on any Termination Day respect of the type described in clause its Capital (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, as recalculated)); and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (xw) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (yx) 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 (zy) the Seller’s Share of the Servicing Fee accrued and unpaid through such day.
(c) The On each Settlement Date, the Servicer shall shall, in accordance with the priorities set forth in Section 1.4(d), deposit into the Administration Account (or such other account designated specified by the Administrator), on each Settlement Date (or solely with respect to Purchaser Agent Collections held for such Purchaser Agent (for the Issuer benefit of its related Purchasers) 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)(iSection 1.4(b)(i) or (f1.4(f) plus the amount of Collections then held for such Purchaser Agent (for the Issuer benefit of its related Purchasers) pursuant to clauses (b)(iiSections 1.4(b)(ii) and (iii) of Section 1.41.4(b)(iii); provided, that if UGI TransDigm or an Affiliate thereof is the Servicer, Servicer and such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revokedDay, UGI TransDigm (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(iSection 1.4(b)(i) that represents the Issuer’s aggregate of the Purchasers’ Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set asideFee. On the last day of or prior to each Settlement PeriodDate, the Administrator each Purchaser Agent will notify the Servicer by facsimile electronic mail of the amount of Discount accrued with respect to each Portion of Capital during such related Settlement Period or portion thereofPeriod.
(d) Upon receipt of funds deposited into The Servicer shall distribute the Administration Account pursuant to clause amounts described (c)and at the times set forth) in Section 1.4(c) on each Settlement Date, the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that Settlement Date 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 Day:
(other than Servicing FeesA) with respect to each Portion of Capital, and secondfirst, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(iSection 1.4(b)(i) and has not retained such amounts pursuant to clause (cSection 1.4(c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s 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 Settlement Date is a Termination Day or on a day when the Purchased Interest exceeds 100%Day:
(A) first, first to the Issuer 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, second 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 Issuer 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 Capital (oreach Purchaser’s Capital; it being understood that each Purchaser Agent shall distribute the amounts described in the first, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, second and third clauses of this Section 1.4(d)(ii) to the Servicer in payment in full of all accrued Servicing FeesPurchasers 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 Issuerremaining 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 payable pursuant to the Fee Letter Fees and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuereach 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 cancelled as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, 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 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 on or 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 one Business Day of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(gSections 1(j) or (n3(a) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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;
full and if such breach (iiix) except 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 on or after the occurrence of the Facility Termination Date, the Seller shall within one Business Day pay the amount of such deemed Collection to a Lock-Box Account (or as provided in 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 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 Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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, time the Seller shall wish to cause the reduction of the Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator and the Servicer each Purchaser Agent written notice in the form of Annex C E (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; (Beach, a “Paydown Notice”) 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 each such reduction for any reduction of Capital greater than $50,000,000Paydown Notice shall include, in each case such notice shall have been received by 3:00 p.m. New York City time on such date and 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 reductionsuch proposed reduction specified in the Paydown Notice; and
(iii) the Servicer shall hold such Collections in trust for the Issuerbenefit 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 on (1) solely with respect to any reduction described in subsections (f)(i)(B) or (f)(i)(C) the next Weekly Settlement Date, or (2and Seller) with respect to any reduction described in subsection (f)(i)(A), Portions of Capital maintained by such other date with at least one (1) Business Day prior written notice to Purchaser immediately following the Administrator of such paymentrelated 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 Administrator benefit of such Purchaser) only when in fact finally so paid; provided, that 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 $100,000100,000 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 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 Issuer, out of the Issuer’s Share of such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of 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, on behalf of the Issuer, the remainder of the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request benefit of the AdministratorSecured Parties (or, following the occurrence and during the continuance of a Potential Default or an Event of Default, if so requested by the Administrative 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), 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 each of the conditions precedent set forth in Section 5.03 are satisfied on such date, the Servicer shall on each Distribution Date (A) release to the Seller from Collections received on Seller Collateral the amount (if any) necessary to pay the purchase price for, or distribute capital in exchange of, Receivables generated by Originators and purchased or accepted for contribution (and automatically deemed purchased or contributed) 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 and contributed 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”) via daily automatic transfers from each Originator’s Collection Account to its related Master Account. 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 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 the Servicer);
(ii) second, to each Purchaser and other Collections Purchaser Party (ratably, based on the amount then due and owing), all accrued and unpaid Yield, Fees and indemnity payments under Section 4.02 due to such Purchaser and other Purchaser Party for the immediately preceding Yield 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 Yield, 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 Yield Period to the extent such amount has not been distributed to such Purchaser or Purchaser Party;
(iii) third, as set aside pursuant forth in clause (A), (B) or (C) below, as applicable:
(A) prior to this paragraphthe occurrence of the Termination Date, shall to the extent that a Capital Coverage Amount Deficit exists on such date (as indicated in the most recent Pool Report and accounting for any Investments made since the date of such Pool Report), 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);
(iiiB) if such day is a Termination Day, set aside, segregate on and hold in trust (and shall, at after the request occurrence of the AdministratorTermination Date, segregate in a separate account approved by to each Purchaser (ratably, based on the Administratoraggregate outstanding Capital of each Purchaser at such time) for the Issuer the entire remainder of the Issuer’s Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share aggregate outstanding Capital of accrued Servicing Fees so set aside. On such Purchaser at such time; or
(C) prior to the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile occurrence 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 Termination Date, at 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 election of the Servicing Fee pursuant to clause (b)(i) Seller and has not retained such amounts pursuant to clause (cin accordance with Section 2.02(d), to the Servicer (payable in arrears on each Settlement Date) in payment in full of all or any portion of the Issuer’s Share outstanding Capital of accrued Servicing Fees so set asidethe Purchasers at such time (ratably, andbased on the aggregate outstanding Capital of each Purchaser at such time);
(iiiv) 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%), thirdfourth, to the Servicer in Secured Parties (ratably, based on the amount due and owing at such time), for the payment in full of all accrued Servicing Fees, other Seller Obligations then due and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto owing 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 IssuerSecured Parties;
(v) fifth, the Administrator or any other Indemnified Party or Affected Person hereunderbalance, have been paid in fullif any, all additional Collections with respect to the Purchased Interest shall 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 fifth 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.
(eb) 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 deemed not to have 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 1.43.01:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted cancelled as a result of (A) any defective, rejected, returned, repossessed or foreclosed goods or services, or (B) any revision, cancellation, allowance, rebate, credit memo, discount or other adjustment made by the Seller any Seller-Related Party or any Affiliate of the Sellerthereof or (C) any setoff, or any setoff counterclaim or dispute between the Seller any Seller-Related Party or any Affiliate of the Seller 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 amount of positive difference between (A) such Pool Receivable’s Outstanding Balance prior to such reduction and (B) its Outstanding Balance after such reduction, and the Seller shall within two (2) Business Days pay to a Collection Account or adjustmentas otherwise directed by the Administrative Agent at such time, for the benefit of the Purchaser Parties for application pursuant to Section 3.01(a), an amount equal to (x) if such reduction occurs prior to the Termination Date and no Event of 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 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 on (A) any day any of the representations representation or warranties warranty in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 6.01 is not true with respect to any Pool ReceivableReceivable 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 Receivable’s Outstanding Balance in full, 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 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 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 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) except as provided in clause clauses (i) or (ii), ) above or as otherwise required by applicable law Law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Pool Receivables of such Obligor in the manner identified in any invoice or related Receivable documentation, or if not identified, 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 Administrative Agent or the Issuer 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 Insolvency Relief Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Mativ 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 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 Issuer, out of the Issuer’s 's Share of such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s '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, on behalf of the Issuer, the remainder of the Issuer’s 's Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,
(iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer the entire remainder of the Issuer’s '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-set- aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s 's Share of the Servicing Fee accrued and unpaid through such dayday 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 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)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 UGI Peabody or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI Peabody (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI Peabody (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(ib)
(i) that represents the Issuer’s 's Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set asideFee. 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 's Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(gl(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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 the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, 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 (the "Paydown Notice") (A) at least one two Business Day Days' prior to the date of such reduction for any reduction of Capital less than or equal to $20,000,000; 20,000,000 and (B) at least two five Business Days 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 $50,000,00020,000,000, 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 shall commence;
(ii) on 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 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, Date immediately following the current Settlement Period 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 approved by the Administrator of such paymentAdministrator, and the 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 $1,000,000 300,000 and shall be an integral multiple of $100,000, and the entire Capital of the Purchased Interest after giving effect to such reduction shall be not less than $50,000,000 and shall be in 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 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 InterestParticipation.
(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 Account(s) and deposit on such day such Collections into the Collection Account. With respect to all Collections on deposit in the Collection Account on such day, the Servicer shall:
(i) if such day is not a Termination Day, set aside and hold in trust within the Collection Account (and shallor if such day is a Termination Day, at transfer to the request of the Administrator, segregate in a separate account approved by the AdministratorLiquidation Account) for the Issuerbenefit of each Purchaser Group, out of the Issuer’s Share percentage of such CollectionsCollections represented by the Participation, first, first an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital Investment and not previously set aside, second, an amount equal to the fees set forth in the each Purchaser Group Fee Letter accrued and unpaid through such day, day and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of the Servicing Fee accrued and unpaid 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, on behalf of each Purchaser (ratably in accordance with the Issuernext succeeding sentence), the remainder of the Issuer’s Share percentage of such Collections. Such remainder shall , represented by the Participation, to the extent representing a return on the Aggregate Investment; such Collections shall, ratably, according to each Purchaser’s Investment, be automatically reinvested in Pool Receivables, and in the Related Security, Security and Collections and other proceeds with respect thereto, and the Participation shall be automatically recomputed pursuant to Section 1.3; it being understood, 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 Participation on such day, and if such Participation shall exceed 100% of the Net Receivables Pool Balance on such day, such Collections shall not be remitted to the Seller but shall be transferred to the Liquidation Account for the benefit of the Purchasers in accordance with paragraph (iii) below; provided, howeverfurther, that if in the Purchased Interest would exceed 100%case of an Exiting Purchaser, then the Servicer such Collections shall not reinvest, but be reinvested and instead shall set aside and hold be held in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion benefit of such Collections that, together Exiting Purchaser and applied in accordance with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,clause (iii) below;
(iii) if such day is a Termination DayDay (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at A) transfer to the request of the Administrator, segregate in a separate account approved by the Administrator) Liquidation Account for the Issuer benefit of each Purchaser Group (x) the amounts set aside in the Collection Account for the benefit of each Purchaser Group pursuant to paragraph (i) above and not so previously transferred to the Liquidation Account, and (y) the entire remainder of the Issuer’s Share percentage of the Collections represented by the Participation (or in the case of an Exiting Purchaser, an amount equal to such Exiting Purchaser’s ratable share of such Collections; providedprovided that solely for the purpose of determining such Exiting Purchaser’s ratable share of Collections, such Exiting Purchaser’s Investment shall be deemed to remain constant from the date of such Exiting Purchaser’s Scheduled Commitment Termination Date 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 Exiting 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 so long as the Facility Termination Date has not occurred if any amounts are set aside and held in trust 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 Administrator and each Purchaser Agent, such amounts previously transferred to the Liquidation Account shall, to the extent representing a return on the Aggregate Investment, 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 each Purchaser Group the entire remainder of the type described Collections in the Collection Account represented by the Seller’s share of the Collections, if any (or in the case of an Exiting Purchaser, an amount equal to such Exiting Purchaser’s ratable share of such Collections; provided that solely for the purpose of determining such Exiting Purchaser’s ratable share of Collections, such Exiting Purchaser’s Investment shall be deemed to remain constant from the date of such Exiting Purchaser’s Scheduled Commitment Termination Date 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 Exiting 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 so long as the Facility Termination Date has not occurred if any amounts are so transferred to the Liquidation Account pursuant to this clause (aB) of the definition of “on any Termination Day” and, Day and thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or are waived by the AdministratorAdministrator and each Purchaser Agent, such previously set-set aside amounts shall be reinvested in accordance with clause (ii) distributed to the Seller on the day of such subsequent satisfaction or waiver of conditions; provided, further, if any amounts are so transferred to the Liquidation Account on any Termination Day and thereafter the Aggregate Investment, Program Fees, Aggregate Discount and Servicing Fees with respect to the Participation and all other amounts payable by the Seller to the Purchasers, the Purchaser Agents, the Administrator of any other Indemnified Party or Affected Person hereunder shall have been paid in full, any remaining amounts on deposit in the Liquidation Account shall be distributed to the Seller for its own account; 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) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) of such amounts, the amounts that are required to be set aside within the Collection Account pursuant to clause paragraph (i), the proviso to clause (ii) above and clause (iii) plus (z) in the Seller’s Share 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 Servicing Fee accrued and unpaid through such dayPool Receivables.
(c) The Servicer shall deposit into the Administration each applicable Purchaser’s Account (or such other account designated by the Administratorsuch applicable Purchaser or its Purchaser Agent), on the last day of each Settlement Date Period relating to a Portion of Investment:
(or solely i) Collections held on deposit in the Collection Account and the Liquidation Account for the benefit of each Purchaser pursuant to Section 1.4(b)(i) in respect of accrued Discount and the Program Fees and Commitment Fees with respect to such Portion of Investment;
(ii) Collections held on deposit in the Liquidation Account for the Issuer benefit of each Purchaser pursuant to clause Section 1.4(f) with respect to such Portion of Investment; and
(fiii) such other date as set forth in clause the lesser of (f)(iiix) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held on deposit in the Liquidation Account for the Issuer benefit of each Purchaser pursuant to clauses (b)(iiSection 1.4(b)(iii) and (iiiy) such Portion of Section 1.4; provided, that if UGI or an Affiliate thereof is Investment. The Servicer shall deposit to its own account from Collections held on deposit in the Servicer, such day is not a Termination Day Collection Account and the Administrator has not notified UGI (or such AffiliateLiquidation Account pursuant to Section 1.4(b)(i) that the right to retain the portion in respect of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement PeriodFee, the Administrator will notify the Servicer by facsimile of the an amount of Discount equal to such accrued with respect to each Portion of Capital during such Settlement Period or portion thereofServicing Fee.
(d) Upon receipt of funds deposited into the Administration each applicable Purchaser’s Account pursuant to clause (c)Section 1.4(c) with respect to any Portion of Investment, the Administrator each applicable 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 Participation does not exceed 100%, first to each Purchaser Agent ratably according to the Issuer 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 such Portion of CapitalInvestment maintained by such Purchasers, second, to each Purchaser Agent ratably according to the Program Fees and secondCommitment 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 Program Fees and Commitment Fees with respect to such Portion of Investment 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 such Discount, Program Fees and Commitment Fees, respectively and third, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(iSection 1.4(b)(i) and has not retained deposited such amounts to its own account pursuant to clause (cSection 1.4(c), to the Servicer (payable in arrears on the last day of each Settlement Datecalendar month) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, aside with respect to such Portion of Investment; and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest Participation exceeds 100%, first to each Purchaser Agent ratably according to Discount (for the Issuer benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued Discount with respect to each such Portion of CapitalInvestment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, second to each Purchaser Agent ratably according to the Issuer 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 Capital each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest Participation to 100%), thirdthird to each Purchaser Agent ratably according to Program Fees and Commitment Fees (for the benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser Group); 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 its Purchaser Group ratably according to such Discount, Investment, Program Fees and Commitment Fees, respectively, fourth, if Seller or any of its Affiliates is not the Servicer, to the Servicer in payment in full of all accrued Servicing FeesFees with respect to such Portion of Investment, and fourthfifth, if the Capital Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Capital Investment with respect to all Purchaser Groups have been reduced to zero, and all accrued Servicing Fees payable to the Servicer (if other than the Seller) have been paid in full, to each Purchaser Group ratably, based on the Issueramounts 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 hereunderhereunder and then to the Servicer (if the Servicer is the Seller) in payment in full of all accrued Servicing Fees. After the CapitalAggregate Investment, DiscountProgram Fees, fees payable pursuant to the Fee Letter Aggregate Discount and Servicing Fees with respect to the Purchased InterestParticipation, and any other amounts payable by the Seller and the Servicer to the Issuereach 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 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 defective, rejected, returned, repossessed or foreclosed goods or services, or any revisiondiscount, cancellation, allowance, rebate, discount rebate or other adjustment made by the Seller Seller, the Originator or any Affiliate of the SellerServicer, or any setoff or dispute between the Seller Seller, the Originator or any the Servicer (if the Servicer is Pilgrim’s Pride or an Affiliate of the Seller thereof) 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(gparagraphs (f) or (nl) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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 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 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 Administrator, any Purchaser Agent or the Issuer 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 the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator Administrator, such Purchaser Agent or the Issuersuch 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; and
(v) if and to the extent the Administrator has exclusive control over the Lock-Box Accounts, the Administrator (or such other party (including the Servicer) consented to in writing by the Administrator) may make certain transfers previously required to be made by the Servicer pursuant to this Section 1.4.
(f) If at any time, time the Seller shall wish to cause the reduction of a portion of the Capital Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased InterestAggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator and the Servicer at least five Business Days’ prior written notice in the form of Annex C thereof (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 including 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 the Liquidation Account for the Issuerbenefit of each Purchaser ratably according to its Investment, for payment to each such Purchaser (or its related Purchaser Agent for the Administrator benefit of such Purchaser) on (1) solely the last day of the then current Settlement Period with respect to any reduction described in subsections (f)(i)(B) Portions of Investment funded or (f)(i)(C) maintained by such Purchaser immediately following 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 paymentrelated current Yield Period, and the Capital Aggregate Investment (together with the Investment of any related Purchaser) shall be deemed reduced in the aggregate amount to be paid to each such Purchaser (or its related Purchaser Agent for the Administrator benefit of such Purchaser) only when in fact finally so paid; provided, that 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 $100,000.500,000 (or such other amount if necessary to cause the Participation to not exceed 100% after giving effect to such reduction), and the entire Aggregate Investment after giving
Appears in 1 contract
Sources: Receivables Purchase Agreement (Pilgrims Pride 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 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 Issuerbenefit of the Purchasers, out of the Issuer’s Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter Fees accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s 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, on behalf of the Issuer, Seller the remainder of the Issuer’s Share of such Collections. Such remainder shall shall, (x) to the extent representing a return of the Aggregate Capital, be automatically reinvested (ratably among the Purchasers according to each Purchaser’s Capital) in Pool Receivables, and in the Related Security, Collections and other proceeds with respect theretothereto and (y) to the extent not representing a return of the Aggregate Capital, be paid to the Seller in respect of the Deferred Purchase Price for the Purchased Assets; provided, however, that if the Purchased 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 Issuer 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 the Administration Account (for the benefit of the Purchasers) or (B) be deposited in an LC Collateral Account, in each case, as applicable, on the next Settlement Date in accordance with Section 1.6(c); provided, further, that (x) in the case of any Purchaser that is a Conduit Purchaser, if such Purchaser has provided notice (a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser that has provided notice (an “Exiting Notice”) to its Purchaser Agent of its refusal, pursuant to Section 1.12, to extend its Commitment hereunder (an “Exiting Purchaser”) then in either case (x) or (y), above, such Purchaser’s ratable share (determined according to outstanding Capital) of such remaining Collections shall not be reinvested or remitted to the Seller and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below (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 DayDay (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 Issuer benefit of the Purchasers the entire remainder of such Collections (or in the Issuercase of a Declining Conduit Purchaser or an Exiting Purchaser an amount equal to such Purchaser’s Share ratable share (determined according to outstanding Capital) of the 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 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 conditionsconditions or revocation of Declining Notice or Exiting Notice, as the case may be, and
(iv) release subject to Section 1.6(f), pay to the Seller (subject to Section 1.4(f)on behalf of the Administrator and the Purchasers) for its 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 proviso provisos to clause (ii) and clause (iii) above, plus (z) the Seller’s Share all reasonable and appropriate out-of-pocket costs and expenses of the Servicing Fee accrued Servicer for servicing, collecting and unpaid through such dayadministering the Pool Receivables.
(c) The Servicer shall 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 or, solely with respect to Collections held for the Issuer Purchasers pursuant to clause (f) Section 1.6(f)(iii), such other date as set forth in clause approved by the Administrator with at least five (f)(iii5) for Business Days prior written notice to the Administrator of such payment), Collections held for the Issuer Purchasers pursuant to clause Section 1.6(b)(i), (b)(iii) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4or 1.6(f); provided, that if UGI Peabody or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI Peabody (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(iSection 1.6(b)(i) that represent the Issuer’s Share of represents the Servicing Fee is revoked, UGI Peabody (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(iSection 1.6(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 each Purchaser (or its Purchaser Agent on its behalf) will notify the Servicer by facsimile 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 and, on a day that the Purchased Interest 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 Issuer Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) 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) 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 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 Assets Coverage Percentage exceeds 100% or on a day when the Purchased Interest sum of the Aggregate Capital plus the Aggregate LC Participation Amount exceeds 100%the Purchase Limit, first to the Issuer Purchaser Agents (for the benefit of the Purchasers in their respective Purchaser Groups) in payment in full of all accrued Discount with respect to each Portion of Capitaland Fees, second to the Issuer 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 Interest 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, and fourthfifth, 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 amounts owing under clauses first through fourth above have been paid in full, to the IssuerPurchaser 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. 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 sixth, after the Seller and occurrence of the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in fullFinal Payout Date, all additional Collections with respect to the Purchased Interest Assets shall be paid to the Seller for its own accountaccount in payment of the Deferred Purchase Price for such Purchased Assets.
(e) For the purposes of this Section 1.41.6:
(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 1(gl(g) or (nm) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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 fullfull 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 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 Administrator, any Purchaser Agent or the Issuer 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 Administrator, such Purchaser Agent or the Issuer such Purchaser but rather to have been retained by the Seller and, accordingly, the Administrator Administrator, such Purchaser Agent or the Issuersuch 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, time the Seller shall wish to cause the reduction of the Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased InterestAggregate Capital), the Seller may do so as follows:
(i) the Seller shall give the Administrator Administrator, each Purchaser Agent 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“Paydown Notice”) at least two Business Days prior to the date of such reduction for any reduction of Aggregate 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 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 Issuerbenefit of the Administrator (for the benefit of each Purchaser), 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.Administrator
Appears in 1 contract
Sources: Receivables Purchase Agreement (Peabody Energy Corp)
Settlement Procedures. (a) The collection of the Pool Receivables Servicer 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 for the request benefit of the AdministratorSecured Parties (or, if so requested by the Administrative Agent during the continuance of an Event of Termination or a Non-Reinvestment Event, segregate in a separate account approved designated by the Administrator) 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 Issuer, out priority of the Issuer’s Share of such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Seller or received in the Fee Letter accrued and unpaid through such dayany Blocked Account, and third, to the extent funds are available therefor, an amount equal to the 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, on behalf of the Issuer, the remainder of the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect theretoLock-Box or Collection Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03 are satisfied on such date, the Servicer may release to the Seller from such Collections received on Unsold Receivables the amount (if any) necessary to pay (x) the Purchased Interest would exceed 100%purchase price for Receivables purchased by the Seller on such date in accordance with the terms of the Purchase and Sale Agreement or (y) amounts owing by the Seller to the Originators under the Subordinated Notes (each such release, then a “Release”). On each Settlement Date, the Servicer shall not reinvestpay to the Administrative Agent, but and the Administrative Agent shall set aside and hold distribute, such Collections in trust the following order of priority:
(i) first, prior to the occurrence of the Termination Date, to the Servicer for the Issuer (and shall, at the request payment of the Administratoraccrued Servicing Fees payable for the immediately preceding Yield Period (plus, segregate 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 Group Agent ratably (or, solely with respect to any Tranched Capital Purchaser in a separate account approved by such Group Agent’s Group, in accordance with Section 2.08), according to the Administrator) a portion aggregate outstanding Capital of each Purchaser in each such Group Agent’s Group (for the benefit of the relevant Purchasers in such Group Agent’s Group), all accrued and unpaid Yield, Fees and Breakage Fees due to such Purchaser and other Purchaser Party for the immediately preceding Yield Period (including any additional amounts or indemnified amounts payable under Sections 5.03 and 13.01 in respect of such Collections thatpayments), together with the other Collections set aside pursuant to this paragraphplus, shall equal if applicable, the amount necessary 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 reduce the Purchased Interest extent such amount has not been distributed to 100%,such Purchaser or Purchaser Party;
(iii) if such day is a Termination Daythird, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer the entire remainder of the Issuer’s Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or waived by the Administrator, such previously set-aside amounts shall be reinvested in accordance with clause (ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (x) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (y) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the Seller’s Share of the Servicing Fee accrued and unpaid through such day.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such paymentx), Collections held for the Issuer pursuant to clause (b)(iy) or (fz) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuerbelow, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as followsapplicable:
(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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
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, Borrowers, Lenders and Agent agree that Agent may (but shall not be obligated to), and Borrowers 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 Sections 3.1 and 3.3 hereof, subject to the Servicer on a timely basis all information needed procedures for such administrationsettlement set forth in this Section 3.13; 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 applicable 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 applicable conditions precedent in Section 4 have been satisfied.
(b) The Servicer shallWith respect to all periods for which the Agent has funded Loans pursuant to Section 3.13(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 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 basis of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer, out amount of the Issueroutstanding 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 CollectionsLender’s Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, first, an amount equal to then such Lender shall forthwith (but in no event later than the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees time set forth in the Fee Letter accrued and unpaid through such day, and third, preceding sentence) transfer to Agent by wire transfer in immediately available funds the extent funds are available therefor, an amount equal to of the Issuerincrease. If the amount of a Lender’s Pro Rata Share of the Servicing Fee accrued through such day and not previously set aside,
(ii) subject to Section 1.4(f), if such day outstanding Loans in any Settlement Period is not a Termination Day, remit to less than the Seller, on behalf of the Issuer, the remainder of the Issuer’s Share amount of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,
(iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer the entire remainder of the IssuerLender’s Pro Rata Share of the Collections; providedoutstanding Loans for the previous Settlement Period, that if amounts are set aside and held Agent shall forthwith transfer to such Lender by wire transfer in trust on any Termination Day immediately available funds the amount of the type described in clause (a) decrease. The obligation of each 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, Lenders to transfer such previously set-aside amounts funds and effect such settlement shall be reinvested in accordance with clause (ii) on irrevocable and unconditional and without recourse to or warranty by Agent. Each of Agent and Lenders agrees to ▇▇▇▇ its books and records at the day end of such subsequent satisfaction or waiver each Settlement Period to show at all times the dollar amount 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 Pro Rata Share of the Servicing Fee accrued outstanding Loans and unpaid through Letter of Credit Accommodations. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans which have been funded by such dayLender.
(c) The Servicer To the extent that Agent has made any such amounts available and the settlement described above shall deposit into not yet have occurred, upon repayment of any Loans by Borrowers, Agent may apply such amounts repaid directly to any amounts made available by Agent pursuant to this Section 3.13. In lieu of weekly or more frequent settlements, Agent may at any time require each Lender to provide Agent with immediately available funds representing its Pro Rata Share of each Loan, prior to Agent’s disbursement of such Loan to or for the Administration Account (or benefit of Borrower. In such other account designated event, all Loans under this Agreement shall be made by the Administrator), on each Settlement Date (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 any Lender be increased or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date decreased as set forth in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion result of the Collections set aside pursuant default by any other Lender in the other Lender’s obligation to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereofmake a Loan requested hereunder.
(d) Upon receipt of funds deposited into the Administration Account If Agent is not funding a particular Loan pursuant to clause (c)Section 3.13(a) above on any day, Agent may assume that each Lender will make available to Agent such Lender’s Pro Rata Share of the Administrator Loan requested or otherwise made on such day and Agent may, in its discretion, but shall not be obligated to, cause such funds a corresponding amount to be distributed as follows:
(i) if made available to Borrowers on such distribution occurs on day. If Agent makes such corresponding amount available to a day that Borrower and such corresponding amount is not a Termination Day and 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 Purchased date such payment was due until the date such amount is paid to Agent at the Interest does Rate. During the period in which such Lender has not exceed 100%paid such corresponding amount to Agent, first notwithstanding anything to the Issuer contrary contained 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 this Agreement or any 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 Dayother Financing Agreements, the amount necessary so advanced by Agent to reduce the Purchased Interest a Borrower shall, for all purposes hereof, be a Loan made by Agent for its own account. Upon any such failure by a Lender to 100%)pay Agent, third, Agent shall promptly thereafter notify such Borrower of such failure and such Borrower shall immediately pay such corresponding amount to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller Agent for its own account.
(e) For the purposes of Nothing in this Section 1.4:
(i) if 3.13 or otherwise in this Agreement or the other Financing Agreements shall be deemed to require Agent to advance funds on any day the Outstanding Balance behalf of any Pool Receivable is reduced Lender or adjusted to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that Agent or Borrowers may have against any Lender 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 default by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it Lender hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
Appears in 1 contract
Sources: Loan and Security Agreement (Doe Run Resources Corp)
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 Issuerbenefit of each Purchaser Group, out of the Issuer’s Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s aggregate 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 the Issuereach Purchaser Group, the remainder of the Issuer’s Share of such Collections. Such remainder shall shall, to the extent representing a return on the Aggregate Capital, be automatically reinvested ratably, according to each Purchaser’s Capital, in Pool Receivables, and in the Related Security, Collections and other proceeds with respect 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 reinvest, but shall set aside and hold in trust for the Issuer 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) or (y) be deposited in the LC Collateral Account, as applicable, on the next Settlement Date in accordance with Section 1.4(c); provided, further, that (x) in the case of any Purchaser that is a Conduit Purchaser, if such Conduit Purchaser has provided notice (a “Declining Notice”) to its Purchaser Agent, the Administrator, and the Servicer that such Purchaser (a “Declining Conduit Purchaser”) no longer wishes Collections with respect to any Portion of Capital funded or maintained by such Conduit Purchaser to be reinvested pursuant to this clause (ii), and (y) in the case of any Purchaser with respect to which the Purchaser Termination Date has occurred (an “Exiting Purchaser”) then in either case (x) or (y), above, such Collections shall not be reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii), below.
(iii) if such day is a Termination DayDay (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 Issuer benefit of each Purchaser Group the entire remainder of the IssuerCollections (or in the case of a Declining Conduit Purchaser or an Exiting Purchaser an amount equal to such Declining Conduit Purchaser’s Share 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 Collectionsprovision 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 type described in clause (aPurchaser Termination Date with respect to any Purchaser) of the definition of “Termination Day” 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 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 satisfaction, cure or waiver of conditionsconditions or revocation of Declining Notice or waiver of such Purchaser Termination Date, andas 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 excess, if any, of: (xw) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (yx) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) plus (zy) the Seller’s Share of the Servicing Fee accrued and unpaid through such dayday 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 shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into the Administration Account each applicable Purchaser Agent’s account (or such other account designated by the Administratorsuch applicable Purchaser or its Purchaser Agent), on each Settlement Date (or solely in the case of Collections held for each Purchaser with respect to Collections held for the Issuer pursuant to clause (fsuch Purchaser’s Portion(s) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer of Capital pursuant to clause (b)(i) or paragraph (f) ), plus the amount of Collections then held for the Issuer related Purchasers pursuant to clauses (b)(ii) and (iii) of this Section 1.4; provided, that if UGI Triumph or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI Triumph (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI Triumph (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s aggregate Purchasers’ 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 thereofFee.
(d) Upon receipt of funds deposited into The Servicer shall distribute the Administration Account pursuant to clause amounts described (cand at the times set forth) in 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%Day:
(1) first, first to each Purchaser Agent ratably according to the Issuer 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 Fees (other than Servicing Fees) with respect to each Portion of CapitalCapital maintained by such Purchasers, and 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 clause paragraph (c), to the Servicer Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the Issuer’s aggregate of the Purchasers’ Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day Day:
(1) first, if Triumph or on a day when an Affiliate thereof is not the Purchased Interest exceeds 100%Servicer, first to the Issuer 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 CapitalCapital funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group,
(3) third, second to each Purchaser Agent ratably according to the Issuer 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 Capital each Purchaser’s Capital,
(or4) fourth, if such day is not a Termination Day, 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 Purchased Interest to 100%), third, aggregate outstanding amount of the LC Participation Amount) and (y) an amount equal to the Servicer LC Fee Expectation at such time (or such portion thereof not currently on deposit in payment in full of all accrued Servicing Fees, and fourththe 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 Issueramounts 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 owed 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 the 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 the Issuereach 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 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 adjustmentadjustment 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 Section 1(gSections 1(j) or (n3(a) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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;
full and shall immediately pay any and all such amounts to a Lock-Box Account (iiior as otherwise directed by the Administrator at such time) except as provided in 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”), or ;
(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 Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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, time the Seller shall wish to cause the reduction of the Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), Aggregate Capital) the Seller may do so as follows:
(i) the Seller shall give the Administrator Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex C 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; 20,000,000 (or such greater amount as agreed to by the Administrator and the Majority Purchaser Agents) and (B) at least two five Business Days prior to the date of such reduction for any reduction of the 782009308 25792734 Aggregate Capital greater than $20,000,000 20,000,000, and less than or equal to $50,000,000; and (C) at least three Business Days prior to the date of each such reduction for any reduction of Capital greater than $50,000,000Paydown Notice shall include, in each case such notice shall have been received by 3:00 p.m. New York City time on such date and 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 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.da
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 InterestReceivable Interest Percentage.
(b) Within two Business Days following its receipt of any item of payment with respect to the Pool Receivables (including, without limitation, cash, checks, money orders, wire transfers and automated clearing house payments), the Collection Agent shall deposit such item into the Collection Account. Except during the continuance of an Event of Termination or Incipient Event of Termination or as otherwise required in this Agreement, funds received in the Collection Account shall be transferred to an account designated by the Seller for the benefit of the Collection Agent. 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 receives any such funds:
(i) set aside on its books and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer, Purchasers or the Banks that hold such Receivable Interest out of the Issuer’s Share applicable Receivable Interest Percentage of such Collections, first, Collections an amount equal to the Discount Yield and Collection Agent Fee accrued through such day for each Portion of Capital such Receivable Interest and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of 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 DayLiquidation Day for such Receivable Interest, remit to reinvest with the Seller, Seller on behalf of the Issuer, Purchasers or the remainder of Banks that hold such Receivable Interest the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion percentage of such Collections thatrepresented by such Receivable Interest Percentage, together with to the other Collections set aside extent representing a return of Capital, by recomputation of such Receivable Interest Percentage pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,Section 2.04;
(iii) if such day is a Termination DayLiquidation Day for such Receivable Interest, 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 Purchasers or the Banks that hold such Receivable Interest the entire remainder of the Issuer’s Share such percentage of the Collections; provided, provided that if amounts are set aside and held in trust on any Liquidation Day occurring prior to the Termination Day of the type described in clause (a) of the definition of “Termination Day” andDate, thereafter, and thereafter during such Settlement Period the conditions set forth in Section 2 of Exhibit II 3.02 are satisfied or waived by the AdministratorAgent, such previously set-set aside amounts shall shall, to the extent representing a return of Capital, be reinvested in accordance with clause the preceding subsection (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) during such times as amounts are required to be reinvested in accordance with clause the foregoing subsection (ii) or the proviso to clause subsection (iii) plus (y) ), apply any Collections in excess of such amounts or in excess of the amounts that are required to be set aside pursuant to clause subsection (i)) above to the payment of any "Purchase Price" (including any "Deferred Purchase Price", as such terms are defined in the proviso Originator Purchase Agreement) then due and release the balance, if any, 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 On each Settlement Date, the Collection Agent, on behalf of the Seller, shall deposit into funds equal to the Administration Account lesser of (x) the Collections received or deemed received during the preceding Settlement Period which are held or required to be held for the benefit of the Purchasers or the Banks pursuant to Section 2.06(b) or 2.06(e) and (y) an amount sufficient to make the distributions set forth in clauses (i) and (ii) below in account #4070-3544 at Citibank or to such other account designated by the Administrator)Agent therefor (provided, however, that so long as the Collection Agent is the Originator and no Event of Termination or Incipient Event of Termination has occurred, the Collection Agent may, on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each month following each Settlement PeriodDate, retain from such funds an amount equal to the Administrator will notify the Servicer by facsimile accrued Collection Agent Fee as of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Period or portion thereofDate, instead of including such amount in the deposit made on such Settlement Date.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c)such funds, the Administrator Agent shall cause such funds to be distributed distribute them as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%Liquidation Day, first to the Issuer Purchasers or the Banks that hold the relevant Receivable Interest in payment in full of all accrued Discount Yield 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), then to the Servicer (payable in arrears on each Settlement Date) Collection Agent in payment in full of the Issuer’s Share of all accrued Servicing Fees so set aside, Collection Agent Fees; and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%Liquidation Day, first to the Issuer Purchasers or the Banks that hold the relevant Receivable Interest in payment in full of all accrued Discount with respect to each Portion of CapitalYield, second to such Purchasers or Banks in reduction to zero of all Capital, third to such Purchasers, Banks or the Issuer Agent in payment in full of Capital (orany other amounts owed by the Seller hereunder, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, and fourth to the Servicer Collection Agent in payment in full of all accrued Servicing Fees, and fourth, if Collection Agent Fee. After the Capital and accrued Discount Yield and Collection Agent Fee with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased a Receivable Interest, and any other amounts payable by the Seller and the Servicer to the IssuerPurchasers, the Administrator Banks or any other Indemnified Party or Affected Person the Agent hereunder, have been paid in full, all additional Collections with respect to the Purchased such Receivable Interest shall revert to and be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.
Appears in 1 contract
Sources: Receivables Purchase and Sale Agreement (North Atlantic Energy Corp /Nh)
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 Purchaser Agents), 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 Issuerbenefit of each Purchaser Group, out of the Issuer’s Purchasers’ Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital Investment and not previously set aside, second, an amount equal to the fees set forth in the each Purchaser Group Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issueraggregate 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 the Issuereach Purchaser Group, the remainder of the Issuer’s Purchasers’ Share of such Collections. Such remainder shall shall, to the extent representing a return on the Aggregate Investment, ratably, according to each Purchaser’s Investment, be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer benefit of the Purchasers (and shall, at the request of the AdministratorAdministrator (with the consent or at the direction of the Majority Purchaser Agents), 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, further, that in the case of any Purchaser that has provided notice (an “Exiting Notice”) to its Purchaser Agent of its refusal, pursuant to Section 1.20, to extend its Commitment hereunder (an “Exiting Purchaser”), then such Purchaser’s ratable share of such Collections based on its Investment shall not be reinvested and shall instead be held in trust for the benefit of such Purchaser and applied in accordance with clause (iii) below,
(iii) if such day is a Termination DayDay (or any day following the provision of an Exiting Notice), set aside, segregate and hold in trust (and shall, at the request of the AdministratorAdministrator (with the consent or at the direction of the Majority Purchaser Agents), segregate in a separate account approved by the Administrator) for the Issuer benefit of each Purchaser Group the entire remainder of the Issuer’s 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 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 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 conditionsconditions 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: (xw) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) plus (yx) the amounts that are required to be set aside pursuant to clause (i), ) and the proviso provisos to clause (ii) and clause (iii) plus (zy) the Seller’s Share of the Servicing Fee accrued and unpaid through such dayday 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 owing by the Seller under this Agreement to the applicable Conduit Purchaser, the LC Bank, the Administrator and any other Indemnified Party or Affected Person.
(c) The Servicer shall shall, in accordance with the priorities set forth in Section 1.4(d), below, deposit into the Administration Account each applicable Purchaser’s account (or such other account designated by the Administratorsuch applicable Purchaser or its Purchaser Agent), 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)Date, Collections held for the Issuer 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 the Issuer such Purchaser pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI Greetings, any Originator, AGSC or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI Greetings, AGSC or such Originator (or such Affiliate) that the such right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI 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 Issueraggregate of each Purchaser Group’s Ratable Share of the Purchasers’ Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set asideFee. On or before the last day of each Settlement PeriodYield Period with respect to any Portion of Investment, the Administrator applicable Purchaser Agent will notify the Servicer by facsimile of the amount of the Discount accrued with respect to each such Portion of Capital Investment during such Settlement the related Yield Period or portion thereofthen ending.
(d) Upon receipt of funds deposited into The Servicer shall distribute the Administration Account pursuant to clause amounts described (cand at the times set forth) in 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 each Purchaser Agent ratably according to the Issuer 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 CapitalInvestment 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 with respect to each Portion of Investment 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 Servicer’s own account (payable in arrears on each Settlement Date) in payment in full of the Issueraggregate 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 Issuer 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 CapitalInvestment funded or maintained by the Purchasers within such Purchaser Agent’s Purchaser Group, second third to each Purchaser Agent ratably according to the Issuer 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 Capital each Purchaser’s Investment (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, ) and to the Servicer LC Collateral Account for the benefit of the LC Bank, until the amount of cash collateral held in payment such LC Collateral Account equals the aggregate outstanding amount of the LC Amount, fourth, it being understood that each Purchaser Agent shall distribute the amounts described in full the second and third clauses of all accrued Servicing Feesthis Section 1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according to Discount and Investment, and fourthrespectively, fifth, if the Capital Aggregate Investment and accrued Aggregate Discount with respect to each Portion of Capital Investment for all Purchaser Groups have been reduced to zerozero 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 Issuerbenefit 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 hereunderor Servicer hereunder and, sixth, 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 CapitalAggregate Investment, Aggregate Discount, fees payable pursuant to the 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 the Issuereach 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 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 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, or Section 2, 3 or 4 of Exhibit VI 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 Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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, time the Seller shall wish to cause the reduction of the Capital Aggregate Investment (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased InterestAggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator Administrator, each Purchaser Agent and the Servicer written notice in the form of Annex C (A) at least one two Business Day Days’ prior to the date of such reduction written notice thereof for any reduction of Capital Aggregate Investment less than or equal to $20,000,000; 10,000,000 and (B) at least two ten Business Days Days’ prior to the date of such reduction written notice thereof for any reduction of Capital Aggregate Investment greater than $20,000,000 and less than or equal to $50,000,000; and 10,000,000 (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 in trust for the Issuerbenefit of each Purchaser ratably according to its Investment, for payment to each such Purchaser (or its related Purchaser Agent for the Administrator benefit of such Purchaser) on the (1i) solely next Settlement Date with respect to any reduction described in subsections (f)(i)(B) Portions of Investment maintained by such Purchaser immediately following the related current Yield Period or (f)(i)(Cii) 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 approved by the Administrator of such paymentAdministrator, and the Capital 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 Administrator benefit of such Purchaser) only when in fact finally so paid; provided, that 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 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 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 Issuerbenefit of each Purchaser Group, out of the Issuer’s Share of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of the Servicing Fee accrued through such day and not previously set asideaside and second, an amount equal to the Fees accrued and unpaid through such day,
(ii) subject to Section 1.4(f), if such day is not a Termination Day, remit to the Seller, ratably, on behalf of the Issuereach Purchaser Group, the remainder of the Issuer’s Share of such Collections. Such remainder shall shall, to the extent representing a return 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 theretoRights; 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 Issuer 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 into the account of the Administrator for the ratable benefit of the Purchasers (to be deposited by the Administrator in each Purchaser Agent’s account (for the benefit of its related Purchasers)) or to the LC Collateral Account on the next Settlement Date in accordance with Section 1.4(c); provided, further, that in the case of any Purchaser that has provided notice (an “Exiting Notice”) to its Purchaser Agent of its refusal, pursuant to Section 1.22, to extend its 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,
(iii) if such day is a Termination DayDay or a day on which the Commitment of an Exiting Purchaser terminates, set aside, segregate 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 Issuer ratable benefit of each Purchaser Group the entire remainder of such Collections (or, in the Issuercase of an Exiting Purchaser, an amount equal to such Purchaser’s Share ratable share of the Collectionssuch 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 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 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 of such subsequent satisfaction or waiver of conditionsto occur that is not a Termination Day (if any), and
(iv) release to the Seller (subject to Section 1.4(f)) , release to the Seller 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 or reinvested pursuant to clause clauses (i), the proviso to clause (ii) and clause (iii) above plus (zy) all other amounts then due and payable by the Seller’s Share of Seller under this Agreement to the Servicing Fee accrued Purchasers, the LC Bank, the Administrator and unpaid through such dayany other Indemnified Party or Affected Person.
(c) The Servicer shall shall, in accordance with the priorities set forth in Section 1.4(d) below, deposit into the Administration Account (or such other an account designated for each Purchaser by the Administrator)its Purchaser Agent, 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)Date, Collections held for the Issuer such Purchaser pursuant to clause Sections 1.4(b)(i), (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(iiii) and (iii) of and Section 1.4; 1.4(f), provided, however, that if UGI or an Affiliate thereof is to the Servicer, such day is not a Termination Day and extent any payments of Capital are required to be paid to the Administrator has not notified UGI (or such Affiliate) that for the right to retain the portion benefit of the Collections set aside Purchaser Agents pursuant to clause (b)(i) that represent the Issuer’s Share of foregoing sections, the Servicing Fee is revoked, UGI (or Servicer shall pay such Affiliate) may retain amounts to 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 asideAdministrator. On or prior to the last day of each Settlement Calculation Period, the Administrator each Purchaser Agent will notify the Servicer by facsimile email communication or other electronic delivery of the amount of Discount and Fees accrued with respect to each Portion of Capital during such Settlement Calculation Period or portion thereofthereof and payable on such date.
(d) Upon receipt of funds deposited into The Servicer shall distribute the Administration Account amounts described in Section 1.4(b) (to the extent not already distributed pursuant to clause (cSection 1.4(b)) on each Settlement Date, the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day Settlement Date that is not a Termination Day 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 does not exceed exceeds 100%, first to each Purchaser Agent ratably (based on the Issuer 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 (other than Servicing Fees) Fees with respect to the Purchasers within such Purchaser Agent’s Purchaser Group; it being understood that 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 Purchaser Agent shall distribute such amounts pursuant to clause (c), to the Servicer (payable in arrears on Purchasers within its Purchaser Group ratably according to Discount and Fees owed to each Settlement Date) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, such Purchaser; and
(ii) if such distribution occurs on a Settlement Date that is a Termination Day or on Day, a day when on which the Commitment of an Exiting Purchaser terminates or a day on which the Purchased Interest exceeds 100%: first, first to each Purchaser Agent ratably (based on the Issuer 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 each Portion of Capitalthe Purchasers within such Purchaser Agent’s Purchaser Group; second, second to the Issuer Administrator for the ratable benefit of each Purchaser (to be distributed by the Administrator 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 (ordetermined 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%), third, to the Servicer in payment in full of all accrued Servicing Fees, and ; fourth, if the Capital all amounts required to be paid and accrued Discount with respect deposited pursuant to each Portion preceding clauses first through third of Capital this clause (ii) have been reduced to zero, so paid and all accrued Servicing Fees payable to the Servicer have been paid deposited in full, to each Purchaser Group ratably (based on the Issueramounts 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, 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 or the Servicer to the Issuerhereunder; and fifth, 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 either (A) reduced or adjusted canceled as a result of (I) any defective, rejected, returned, repossessed or foreclosed returned goods or services, or any revision, cancellation, allowance, rebate, discount cash or other adjustment made by the Seller or any Affiliate of the Sellerdiscount, 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 dispute between credit in respect of any claim by the Seller or any Affiliate Obligor thereof (whether such claim arises out of the Seller and same or a related transaction or an Obligorunrelated 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 Section 1(gSections 1(j) or (n3(a) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI 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 fulltrust 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 clause (iSections 1.4(e)(i) or (ii), ) or as otherwise required by applicable law Law, the relevant Contract or the relevant Contractapplicable Eligible Supporting Letter of Credit, all Collections received from an a Payment Obligor of any Receivable shall be applied to the Receivables of such the applicable 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; andotherwise specified by the applicable Obligor;
(iv) if and to the extent the Administrator Administrator, any Purchaser Agent or the Issuer 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 the Issuer such Person but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, 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, time the Seller shall wish wishes to cause the reduction of the Aggregate 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 deliver to the Administrator Administrator, each Purchaser Agent 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) a Paydown Notice at least two Business Days prior to the date of such reduction for any reduction of Capital greater than $20,000,000 the Aggregate Capital, and less than or equal to $50,000,000; and (C) at least three Business Days prior to the date of each such reduction for any reduction of Capital greater than $50,000,000Paydown Notice shall include, in each case such notice shall have been received by 3:00 p.m. New York City time on such date and 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 Issuerbenefit of each Purchaser ratably according to its Capital, for payment to the Administrator for the ratable benefit of each such Purchaser on the date specified in the Paydown Notice (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 (1as agreed to by the Administrator) Business Day prior written notice to the Administrator of such payment, and the Aggregate Capital (together with the Capital of each Purchaser) shall be deemed reduced in the amount to be paid to the Administrator for the ratable benefit of each such Purchaser only when in fact finally so paid; provided, that that:
(A) the amount of any such reduction shall be (if not less than $1,000,000 and 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 On the Pool Receivables Payment Date, MBFG shall be administered by determine (i) the Servicer in accordance with this Agreement. The net amounts, if any, due Seller shall provide pursuant to Section 9 and the Servicer on a timely basis all information needed for such administration, including notice of the occurrence amount of any Termination Day other collections received which are otherwise due Seller, minus (ii) the net amounts due to MBFG pursuant to Seller’s obligations to repurchase Receivables under Section 6 or otherwise. If such amount is positive, MBFG shall pay such amount to Seller, and current computations if such amount is negative, MBFG shall advise Seller of such amount due to MBFG, and if payment therefore is not received on the Purchased Interestnext Business Day, MBFG shall collect the amount due from Seller (i) first front amounts otherwise due to Seller from MBFG, (ii) second from collections received and otherwise due to Seller, (iii) third from amounts available in the Specific Reserve Account, and (iv) fourth from any other amounts otherwise due Seller. Any amount which remains unsatisfied will constitute an unpaid and outstanding obligation of Seller. Failure by Seller to immediately pay this unpaid and outstanding obligation will constitute an Event of Default.
(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, All payments to MBFG under this Agreement other than wire transfers shall be made to MBFG’s principal office at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer, out of the Issuer’s Share of such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Share of 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, on behalf of the Issuer, the remainder of the Issuer’s Share of such Collections. Such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if the Purchased Interest would exceed 100%, then the Servicer shall not reinvest, but shall set aside and hold in trust for the Issuer (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,
(iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at the request of the Administrator, segregate in a separate account approved by the Administrator) for the Issuer the entire remainder of the Issuer’s Share of the Collections; provided, that if amounts are set aside and held in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions address set forth in Section 2 of Exhibit II are satisfied or waived 13(h). Payments must be received by MBFG not later than 12:00 noon Pacific Time Zone; payments received after 12:00 noon shall not be credited to Seller until the Administrator, such previously set-aside amounts next Business Day. All payments to MBFG by wire transfer shall be reinvested into the account designated by MBFG. All payments must be 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 lawful money of the Servicing Fee accrued United States of America in same day funds. Payments to Seller under this Agreement, or to a third party for the benefit of Seller, may be by check, which may be mailed, picked up in person, or deposited directly into an account designated by Seller, by wire transfer to an bank account designated in writing by such Seller to MBFG. All fees or costs associated with any payment to Seller, including without limitation, wire transfer fees and unpaid through such dayother associated fees, shall be the responsibility of Seller.
(c) The Servicer shall deposit into the Administration Account (or such other account designated by the Administrator), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in Whenever any 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 made hereunder is stated to be due 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 Business Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in such payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the 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 in trust for the 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) succeeding Business Day prior written notice to the Administrator of such payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000Day.
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Settlement Procedures. (a) The collection and distribution of the Pool Receivables shall be administered by the Servicer Collateral Agent 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 Collateral Agent shall, on each day on which Collections of Pool Receivables are received (or deemed received) by deposited into the Seller or the ServicerCollection Account:
(i) set aside and hold in trust (and shall, at the request of the AdministratorFacility Agent, segregate in a separate account approved by the AdministratorFacility Agent) for the IssuerBanks, out of the Issuer’s Banks' Share of such Collections, first, an amount equal to the Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the fees set forth in the Fee Letter accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Issuer’s Banks' 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, on behalf of the IssuerBanks, the remainder of the Issuer’s Banks' Share of such Collections. Such ; such remainder shall be automatically reinvested in Pool Receivables, and in the Related Security, Collections and other proceeds with respect thereto; provided, however, that if after giving effect to such reinvestment the Purchased Interest would exceed 100%, then the Servicer Collateral Agent shall not reinvestremit such remainder to the Seller, but shall set aside and hold in trust for the Issuer Banks (and shall, at the request of the AdministratorFacility Agent, segregate in a separate account approved by the AdministratorFacility Agent) a portion of such Collections that, together with the other Collections set aside pursuant to this paragraph, shall equal the amount necessary to reduce the Purchased Interest to 100%,
(iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at the request of the AdministratorFacility Agent, segregate in a separate account approved by the AdministratorFacility Agent) for the Issuer Banks the entire remainder of the Issuer’s Banks' 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 events giving rise to such Termination Day are satisfied or waived by the AdministratorFacility Agent (or (x) in the case of proceedings giving rise to an Event of Bankruptcy as described in clause (a)(i) of the definition of "Termination Day", such proceedings are dismissed or (y) in the case of one or more notices of lien filed by either the Internal Revenue Service or the Pension Benefit Guaranty Corporation as described in clause (a)(iii) of the definition of "Termination Day", such lien or liens are released and Standard & Poor's has received satisfactory evidence of such release), such previously set-set aside amounts shall be reinvested in accordance with clause (ii) of this Section 1.4(b) on the day of such subsequent satisfaction satisfaction, waiver or waiver of conditionsdismissal, and
(iv) release remit to the Seller (subject to Section 1.4(f)) for its own account any Collections in excess of: (xa) amounts required to be reinvested in accordance with clause (ii) or the proviso to clause (iii) of this Section 1.4(b) plus (yb) the amounts that are required to be set aside pursuant to clause (i), the proviso to clause (ii) and clause (iii) of this Section 1.4(b) plus (zc) the Seller’s 's Share of the Servicing Fee accrued and unpaid through such dayday and all reasonable and appropriate out-of-pocket costs and expenses of the Servicer for servicing, collecting and administering the Pool Receivables plus (d) all other amounts owed by the Seller under this Agreement to any Bank, the Facility Agent, the Collateral Agent and any other Indemnified Party or Affected Person.
(c) The Servicer Collateral Agent shall deposit into the Administration Account (or such other account designated by the AdministratorFacility Agent), on each Settlement Date (or solely with respect to Collections held for the Issuer pursuant to clause (f) such other date as set forth in clause (f)(iii) for such payment), Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if UGI or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrator has not notified UGI (or such Affiliate) that the right to retain the portion of the Collections set aside pursuant to clause (b)(i) that represent the Issuer’s Share of the Servicing Fee is revoked, UGI (or such Affiliate) may retain the portion of the Collections set aside pursuant to clause (b)(i) that represents the Issuer’s Share of the Servicing Fee in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside. On the last day of each Settlement Period, the Administrator will notify the Servicer by facsimile of the amount of Discount accrued with respect to each Portion of Capital during such Settlement Yield Period (or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account pursuant to clause (c), the Administrator shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Interest does not exceed 100%, first to the Issuer in payment in full of all accrued Discount and fees (other than Servicing Fees) with respect to each Portion of Capital, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) and has not retained such amounts pursuant to clause (c), to the Servicer (payable in arrears on each Settlement Date) in payment in full of the Issuer’s Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day when the Purchased Interest exceeds 100%, first to the Issuer in payment in full of all accrued Discount with respect to each Portion of Capital, second to the Issuer in payment in full of Capital (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Interest to 100%), third, to the Servicer in payment in full of all accrued Servicing Fees, and fourth, if the Capital and accrued Discount with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the Issuer, the Administrator and any other Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder. After the Capital, Discount, fees payable pursuant to the Fee Letter and Servicing Fees with respect to the Purchased Interest, and any other amounts payable by the Seller and the Servicer to the Issuer, the Administrator or any other Indemnified Party or Affected Person hereunder, have been paid in full, all additional Collections with respect to the Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, discount or other adjustment made by the Seller or any Affiliate of the Seller, or any setoff or dispute between the Seller or any Affiliate of the Seller and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in Section 1(g) or (n) of Exhibit III, or Section 2, 3 or 4 of Exhibit VI is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by the Administrator or the Issuer but rather to have been retained by the Seller and, accordingly, the Administrator or the Issuer, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(f) If at any time, the Seller shall wish to cause the reduction of the Capital (but not to commence the liquidation, or reduction to zero, of the entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the 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 in trust for the 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 payment, and the 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 $1,000,000 and shall be an integral multiple of $100,000.of
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Sources: Receivables Participation Agreement (Weirton Steel Corp)